[*PG393]RENEWING THE CALL: IMMIGRANTS’ RIGHT TO APPOINTED COUNSEL IN DEPORTATION PROCEEDINGS
Deportation is a significant deprivation of liberty—both scholars and courts have likened it to criminal punishment. In fact, with the passage of the Illegal Immigrant Reform and Immigration Reform Act in 1996, Congress expanded the grounds for deportation while narrowing the avenues for relief. Moreover, immigration law is notoriously complex, as are the deportation proceedings themselves. These adjudicatory hearings incorporate many of the formal procedural protections adopted by courts of law. Yet non-citizens, who often have little understanding of the American legal system, have no right to appointed counsel. In light of the significant interests at stake, the complexity of the process, and the evolving nature of the law, the right to appointed counsel is necessary to ensure that the dictates of due process are satisfied.
For immigrants facing a deportation hearing, the stakes are high.1 Deportation could mean being separated from their families and friends and being forced to quit their jobs and to leave their homes. It could mean being sent to a foreign country where unfamiliar faces or even physical harm await them. It could even mean that they will never be able to return to the United States.2
Once an immigrant is served with a notice to appear, which informs a non-citizen that deportation proceedings have been initiated, all that stands between him and deportation is the deportation proceeding itself.3 This hearing is his opportunity to defend himself against the charge that he is deportable or to demonstrate that he is eligible for some form of relief from deportation.4 However, the deportation proceeding is a confusing and threatening process, particu[*PG394]larly for a non-citizen, with limited knowledge of immigration law, who is subject to interrogation by an Immigration and Naturalization Service (Service or INS) attorney and the Immigration Judge (IJ), and who is unsure of what evidence to offer and how to meet the legal burdens of proof.5 Thus, the deportation proceedings fail to adequately protect the significant interests of unrepresented immigrants.
For thirty years, scholars have written about the value of appointed counsel. In his 1975 article, Robert N. Black stated that due process required the government to assign counsel to indigent non-citizens in deportation proceedings.6 Black employed a due process analysis that balanced the interests of the non-citizen and the non-citizen’s ability to represent himself adequately against the weight of the government’s interest in not providing counsel.7 He recognized the “recent evolution of the due process concept”8 and modeled his analysis on the newly-developed tests utilized by courts to determine if due process required appointed counsel in other government-initiated civil proceedings.9 He then concluded that due process requires appointed counsel for certain classes of deportation cases10 because a non-citizen’s interests can be so significant that “counsel is needed for the individual to be heard in a meaningful way.”11
That same year, the United States Court of Appeals for the Sixth Circuit ruled on the issue of appointed counsel for deportees.12 In Aguilera-Enriquez v. INS, the court did not adopt Black’s due process analysis.13 Instead, the court decided that the determination of whether a non-citizen has a due process right to appointed counsel requires a case-by-case analysis.14 In this particular case, the court found that due process did not require appointed counsel.15
[*PG395] Although the Supreme Court has never addressed the issue specifically, the circuit courts have uniformly applied the case-by-case standard as set out in Aguilera-Enriquez and have rejected a per se right to appointed counsel in deportation proceedings.16 The application of this standard has denied appointed counsel to non-citizens in nearly every case.17 Nevertheless, scholarship on the topic has continued to argue for extending the right to appointed counsel to non-citizens in deportation proceedings.18 Generally, these arguments point out that assigned counsel in deportation proceedings is consistent with contemporary notions of procedural due process as set out in Mathews v. Eldridge.19
Recent amendments to the Immigration and Nationality Act (INA) have made the legal arguments in favor of appointed counsel stronger and of greater importance to those whom it would benefit. In 1996, Congress passed the Illegal Immigrant Reform and Immigration Responsibility Act (IIRIRA).20 The IIRIRA expanded the grounds for deportation, the bars to relief, and the bars to re-entry.21 Furthermore, many of these provisions apply retroactively.22 The increased harshness of these changes to the INA means that non-citizens, particularly immigrants,23 have increased stakes in the deportation proceeding, and thus an increased need for representation.
[*PG396] This Note demonstrates that the arguments in favor of a per se right to appointed counsel for immigrants in deportation proceedings are even more persuasive today than they have been in the past.24 Part I describes the development of due process rights, particularly with regard to counsel, for non-citizens whom the Service has placed in deportation proceedings. This part focuses on the influence of developments in other fields of law on the current status of appointed counsel in deportation.
Parts II and III employ the Mathews balancing test25—the Supreme Court’s weighing of interests to determine what procedural protections are required by due process—to demonstrate that the absence of counsel in deportation proceedings results in a hearing that is fundamentally unfair. Part II analyzes the immigrant’s liberty interests at stake in deportation, focusing on how changes to the INA made by the IIRIRA have affected these interests. Part III argues that the existing procedures fail to protect against erroneous deprivations of liberty. This is due in part to the complexity of immigration law and procedures, but also to the adversarial nature of the proceeding and to the Immigration Judges’ precarious role as both adjudicator and inquisitor. Furthermore, Part III shows that changes to the INA, though limiting the defenses available to non-citizens and removing [*PG397]some of the IJ’s discretion, in fact actually increase the need for counsel. This Note concludes that in light of immigrants’ strong interests in remaining in the United States and the potential for erroneously depriving them of that interest, the case-by-case approach to determining if counsel must be appointed fails to meet the dictates of due process.
Regardless of the judiciary’s recognition of the penal and quasi-criminal nature of deportation,26 the Supreme Court has held repeatedly that deportation proceedings are civil rather than criminal in nature.27 This distinction is important because the constitutional protections afforded criminal defendants, including the Sixth Amendment right to counsel, are, therefore, not available to non-citizens in deportation proceedings.28
Nevertheless, non-citizens in deportation proceedings do have some constitutional protections. The courts have differentiated between Congress’ authority to dictate conditions for non-citizens residing in the United States and Congress’ prescribing procedure for enforcing and adjudicating these conditions.29 With regard to the former power, non-citizens are “subject to the power of Congress to expel them, or order them to be removed and deported from the country, whenever, in its judgment, their removal is necessary or expedient for the public interest.”30 This virtually unreviewable power to establish conditions for non-citizens consistently has been reaffirmed by the Supreme Court.31
[*PG398] Congress, however, is limited in its authority to dictate the procedure for enforcing immigration laws. In 1903, the Supreme Court recognized a non-citizen’s Fifth Amendment right to procedural due process in deportation proceedings.32 In Yamataya v. Fisher (“The Japanese Immigrant Case”), the Court stated that “this [Supreme Court] has never held that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.”33 In principle, the Court’s commitment to the Fifth Amendment was strong and explicit, but in practice, the due process rhetoric has proven hollow.34 Even in Yamataya, where the Court acknowledged that a non-citizen must be given the opportunity to be heard prior to determining that he is deportable, the protection afforded the non-citizen was minimal.35 For example, due process did not require an interpreter for the non-citizen; thus, in effect, the opportunity to be heard was granted only to those who understood and spoke English.36
With a few exceptions,37 Yamataya’s due process rhetoric continued to lack substance for the next fifty years.38 However, as pointed out by immigration lawyer Charles Gordon in 1961, “due process is an expanding concept which reflects current notions of fairness.”39 Changing notions of fairness were reflected in the Immigration and [*PG399]Nationality Act of 1952.40 The new statutory procedures replaced the loose procedural protections previously required by the Constitution.41 Among the protections provided in the statute, an alien in deportation proceedings had a right to an attorney “at no expense to the government.”42
The legal climate of the 1960s made possible challenges to the constitutionality of the provision “at no expense to the government” through arguments that due process required assignment of counsel to indigent non-citizens. In 1963, the Supreme Court established a right to appointed counsel in criminal cases in Gideon v. Wainwright.43 Adopting language from a prior case involving the right to counsel in criminal cases, the Supreme Court in Gideon stated:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad.
. . . .
He lacks both the skill and knowledge adequately to prepare his defense, even though he have [sic] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.44
[*PG400] Although the Sixth Amendment did not apply to deportation proceedings, the reasoning adopted by the Supreme Court in Gideon lends support to a right to appointed counsel under the Fifth Amendment since both Amendments encompass underlying concerns about fairness.45
More importantly, in 1967, the right to appointed counsel made its way into the civil context.46 In In re Gault, the Supreme Court recognized a juvenile’s due process right to appointed counsel in delinquency proceedings.47 In its opinion, the Court focused on the characteristics of the proceeding rather than its label as “civil” or “administrative.”48 Regardless of the juvenile justice system’s attempts to make the delinquency proceedings less adversarial than an adult criminal trial and more focused on the welfare of the child, in Gault, the Court recognized that the consequences of a delinquency hearing would be essentially the same as in a criminal trial.49 The fact that the juvenile’s physical liberty was at stake was integral in the Court’s decision.50
In contrast to Gault, the Court has been less willing to recognize an absolute right to appointed counsel where the deprivation of liberty is non-physical.51 For example, in Lassiter v. Department of Social Services, the Court rejected the argument that due process required appointed counsel for indigent parents in proceedings to terminate their parental rights.52
[*PG401] Prior to Gault, there had been attempts to argue that non-citizens in deportation proceedings were entitled to appointed counsel.53 However, courts generally declined to decide the issue of whether due process required appointed counsel. Instead, they found that the absence of counsel was not prejudicial in those cases.54 After 1967, however, academia encouraged courts to apply the “intellectual framework” of Gault to determine if counsel should be provided in deportation proceedings.55 A parallel argument was drawn between the deprivation of liberty at stake in a juvenile delinquency hearing and the deprivation of liberty at stake in a deportation hearing.56 It was argued that
The consequences of deportation are often fully as grave as those of imprisonment; deportation has at times had the effect of wrenching a person from his home since childhood, separating him from his wife and children, who may be American citizens, and sending him to a strange land or, even worse, leaving him with no country at all to which to turn.57
However, when the Sixth Circuit rendered its decision in Aguilera-Enriquez, rather than relying on Gault, the court looked to Gagnon v. Scarpelli58 and its predecessor, Morrissey v. Brewer,59 for guidance.60 Gagnon, a post-Warren decision handed down in 1973, was a case in which the petitioner, John Gagnon, had had his probation revoked without a hearing.61 On habeas review, the Supreme Court held that a probation revocation, like a parole revocation, is not a criminal proceeding; nonetheless, it does result in a deprivation of liberty, and thus entitles [*PG402]a probationer to due process.62 Due process entitles a probationer to a hearing before his probation is revoked.63
More importantly, in Gagnon, the Court addressed the issue of whether the government was obligated to appoint counsel to represent probationers in revocation hearings.64 Instead of adopting a per se rule akin to the right to appointed counsel in criminal proceedings65 or in juvenile delinquency hearings,66 the Court adopted a “case by case” approach.67 Essentially, under this approach, the court would consider the peculiarities of a particular case to determine if counsel was necessary.68
In adopting this approach, the Court reasoned that the “nature” of the revocation proceeding would be significantly, and detrimentally, altered if counsel were provided for the probationer.69 Probation revocation hearings are informal and flexible—the technical rules of procedure and evidence do not apply.70 Furthermore, the State is represented by a probation officer, not a prosecutor.71 The probation officer, while not wanting to compromise public safety, is responsible for furthering the rehabilitative goals of the probation system.72 The Court feared that the introduction of counsel into the revocation proceeding might prevent the hearing body from staying “attuned to the rehabilitative needs of the individual probationer. . . .”73 The Court was concerned that this relatively non-adversarial proceeding would become unnecessarily adversarial and lose the benefits of informality and flexibility.74
Although the Court did seem concerned with the probationer’s best interest, the decision in Gagnon gave little weight to the liberty [*PG403]interests at stake in probation revocation hearings.75 Several states have recognized a right to appointed counsel in probation revocation proceedings in their own criminal justice systems.76 The Massachusetts courts, for example, have held that counsel is necessary in a probation revocation hearing because of the liberty interest at stake.77 In 1966, the highest court in Massachusetts explained the link between the right to appointed counsel and this liberty interest:
The defendant’s liberty is at stake, and at this point in the process of sentencing as much as at any other point he has need of counsel. In this case the decision on the petitioner’s liberty is still in the hands of the sentencing court. . . . [I]n the absence of a waiver [the probationer must] be afforded counsel at a probation revocation hearing where such revocation might result in imprisonment. It is based on simple justice.78
Nonetheless, quoting from Gagnon, the Aguilera-Enriquez court held that “[t]he test for whether due process requires the appointment of counsel for an indigent alien is whether, in a given case, the assistance of counsel would be necessary to provide ‘fundamental fairness, the touchstone of due process.’”79 The court went on to assess the merits of the petitioner’s case.80 The petitioner was deportable because he had been convicted of a narcotics offense.81 Looking to the record established before the Immigration Judge, the court concluded that the petitioner had raised no defense to the charge that he was deportable.82 Consequently, the court found that “counsel [*PG404]could have obtained no different administrative result” and, thus, rejected the petitioner’s claim that he was denied due process.83
Cases subsequent to Aguilera-Enriquez have followed the Sixth Circuit.84 Like the Aguilera-Enriquez court, other circuits are generally quick to find that a non-citizen’s lack of representation was not prejudicial to the outcome.85 In practice, the case-by-case approach has essentially resulted in across-the-board denials of appointed counsel.
Less than two years after the Aguilera-Enriquez court cited fundamental fairness as the touchstone of due process,86 the Supreme Court adopted explicit guidelines for determining what constitutes fundamental fairness.87 In Mathews v. Eldridge, the Court held that:
the specific dictates of due process generally requires [sic] consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.88
In applying the Mathews balancing test to the question of whether appointed counsel for immigrants in deportation proceedings is required, it is necessary to identify each of the three factors set out [*PG405]above and balance each one’s strengths in relation to the others.89 This Part will analyze the first factor: the effect of the government’s action of deportation on the immigrant’s private interests.
Scholars and courts have recognized the gravity of deportation, and likened it to criminal punishment.90 In defining the private interest at stake in deportation proceedings, consideration of these grave consequences is necessary.91 For many long-time legal permanent residents, returning to their home country is like sending them to live in a foreign country. Many immigrants come to the United States as children,92 and some may not remember living in any other country; others simply have not returned to their native country for many years. Friends and family often live in the United States, and immigrants’ familial ties to their homeland may be minimal.93
Some immigrants find that deportation is not only analogous to criminal punishment, but that in fact, it will result in physical harm to them.94 Immigrants who are refugees95 may be killed, imprisoned or forced to suffer another form of persecution if they are deported.96 [*PG406]Furthermore, because the statutory grounds for asylum are narrow—not all persecuted persons are eligible for asylum-—many non-citizens who would face persecution upon return to their native country may have emigrated to the United States without seeking asylum.97
Regardless of whether the immigrant is a long-time resident or he fears persecution upon return to his country of origin, he has an interest in remaining in the United States. Immigrants by their very nature have a significant private interest; they have left their homes, moved to a foreign country, and started anew with an intent to remain in the United States.98 As one commentator has pointed out, “[l]awful permanent resident aliens occupy the circle of membership [in society] just outside that of citizens, and resident aliens have developed a substantial stake in the community in justifiable reliance on their continued rights in this society.”99 Consequently, even those immigrants with relatively few quantifiable private interests at stake still face significant deprivations if they are deported.100
Congress, recognizing the private interests at stake in deportation proceedings, has passed legislation that renders some immigrants statutorily eligible for relief from deportation.101 Historically, the relief [*PG407]available to immigrants takes into consideration the factors described above, such as the length of the immigrant’s residency and his ties to the United States.102 Thus, in the past, statutory relief has allowed for the equities of the situation to affect the outcome of a deportation proceeding.103
For example, “Cancellation of Removal A,” previously § 212(c) “Waiver of Deportability,” gives an Immigration Judge authority to cancel deportation for immigrants who have been lawful permanent residents for five years and have lived in the United States for seven years.104 Immigrants who have not attained five years of LPR status may be eligible for “Cancellation of Removal B,”105 previously called “Hardship Waiver.” To qualify for this relief, a non-citizen must show “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”106 Although meeting this high standard is difficult,107 it does [*PG408]offer relief to some non-citizens who can demonstrate that their ties to the United States are significant.
In addition to Cancellation of Removal A and B, an immigrant may seek relief through asylum.108 Although a non-citizen may seek asylum upon entry to the United States, it is also a form of relief available to him in a deportation proceeding.109 Thus, an Immigration Judge has the authority to take into consideration the potential danger awaiting an immigrant who may be forced to return to his native country.110
It has been argued that an immigrant’s liberty interest is proportional to his eligibility for relief since, as more relief becomes available, meeting evidentiary burdens becomes more difficult.111 While it is true that counsel is needed to help establish eligibility for relief, this reasoning assumes the outcome from the outset of the hearing.112 In defining the liberty interest by looking at the relief available to the immigrant rather than at the potential deprivation if he were deported, one must presuppose that he knows what counsel, after thorough research and investigation, would argue.113 In fact, counsel is [*PG409]needed to assist the client in determining which forms of relief may be available to him.114 Furthermore, if liberty interests are defined by the relief available to the immigrant rather than by the consequences of deportation, then recent changes to the INA made by the IIRIRA eliminating previously available forms of relief would have decreased immigrants’ liberty interests.115
Instead, the opposite has resulted: immigrants’ liberty interests and their need for appointed counsel have increased. The IIRIRA reflected Congress’ concern that the current laws were too lenient with regard to criminal aliens.116 Whereas non-immigrants can be deported for various violations of their non-immigrant status,117 immigrants, who have far fewer conditions placed on them, are subject primarily to criminal grounds of deportation.118 Consequently, the changes made by the IIRIRA to the criminal grounds of deportation substantially affect immigrants’ liberty interests.
Many immigrants have been affected by the IIRIRA’s replacement of § 212(c) waivers with “Cancellation of Removal.”119 With the name change came substantive changes to the statutory eligibility for this form of relief.120 Section 212(c) barred relief for those immigrants who had committed an aggravated felony and who had served a sentence of five years.121 In contrast, “Cancellation of Removal A” places a bar on all aggravated felons, regardless of the length of time—if any–--they serve in prison.122
Although Congress clearly intended to take a “tough” stance on crime by removing some of the IJ’s discretion to grant relief to many criminal immigrants,123 the changes made to the INA will produce exceptionally harsh results. Many immigrants who are convicted of [*PG410]aggravated felonies may actually serve little or no time, signaling that the criminal justice system does not in fact believe that these immigrants pose a real threat to society.124
The effects of the unqualified bar to relief for aggravated felons are exacerbated by changes to the definition of aggravated felony under the IIRIRA and other immigration and crime acts.125 Once a brief list of the most serious and violent crimes,126 the definition of aggravated felony now encompasses over twenty broad categories of crimes, some of which are only arguably serious or violent.127 The IIRIRA did add such violent crimes as rape and sexual abuse of a minor to the list of aggravated felonies, but it also substantially lowered the sentence requirements and dollar amounts for many crimes that were already included.128
For example, a crime of violence or a theft offense, including receipt of stolen property, for which the sentence imposed is one year or longer, even if it is suspended, is now an aggravated felony.129 Under this definition, to constitute a crime of violence, the nature of the crime must “ordinarily present a risk that physical force is used,” regardless of whether the risk actually ensued.130 Prior to the IIRIRA, crimes of theft or violence were not aggravated felonies unless a sentence of five years or more was imposed.131 Crimes relating to tax evasion were not aggravated felonies unless the revenue loss to the Government exceeded $200,000; the IIRIRA reduced the amount to $10,000.132
[*PG411] In addition to expanding the aggravated felony definition, the IIRIRA amended the aggravated felony definition so that it applies retroactively.133 The IIRIRA stated that the amendments “shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred. . . .”134 Thus, at the time of conviction, the crime may not have been an aggravated felony, yet today it could be classified as such and may render an immigrant deportable regardless of the amount of time that has passed since the conviction.135
This retroactivity provision substantially affects the liberty interest of immigrants. An immigrant may build his life in the United States in reliance on the fact that a plea he agreed to in criminal court would not render him deportable.136 The changes to the aggravated felony definition further affect the private interest of the immigrant because once he is deported on an aggravated felony conviction, he is barred from ever reentering the United States.137 Deportation alone is a serious deprivation of liberty; however, without hope of return, the consequences are even more severe.
The changes made to the INA have significantly affected the outcomes of deportation proceedings.138 One commentator describes the deportation process: prior to the enactment of the IIRIRA, a non-citizen who committed a theft for which he was sentenced to serve one year may have been deportable for committing a crime of moral turpitude if it was committed within five years of his admission to the United States.139 Even if he were deportable, he may have been eligible for relief under §212(c).140 If he did not qualify for this waiver, the Immigration Judge could have granted him voluntary departure.141 [*PG412]Even in the event that he had been deported, he may have been able to return to the United States some time in the future.142 Under the current law, the story is much shorter. The commission of a theft resulting in a one-year sentence would be an aggravated felony.143 An immigrant would be deportable and would not be eligible for relief.144 Furthermore, he would never be able to reenter the United States.145
In sum, the immigrant’s liberty interest---the first factor weighed in the Mathews test---is exceptionally strong. Deportation has always been a serious deprivation of liberty for an immigrant who has come to the United States intending to live here permanently. Congress’ recent amendments to the INA have broadened the range of crimes that renders an immigrant deportable and, at the same time, has curtailed forms of relief previously available.146 In doing so, immigrants’ liberty interests have been strengthened, thus triggering a greater need for procedural protection, particularly appointed counsel, to ensure that deportation proceedings meet the dictates of fundamental fairness.
Having established the significant liberty interest that is at stake in deportation proceedings, the Mathews test requires a determination of the likelihood of an erroneous deprivation of liberty.147 The test considers the hearing procedures currently used and their success in preventing erroneous deprivations.148 If the current procedural protections result in a considerable potential for erroneous deprivations of liberty, it is likely that they fail to ensure a fundamentally fair hearing.149 However, the test also requires an evaluation of the probable value, if any, of additional or substitute procedural safeguards.150 Thus, to show the need for appointed counsel for immigrants, the [*PG413]analysis compares a hearing in which the immigrant is unrepresented to one in which the immigrant is represented by counsel.151
Before examining the nature of deportation proceedings and the procedural protections currently in place, it is important to note that several studies have indicated that representation in immigration proceedings does affect the outcome.152 In 1998 and 1999, the then American Bar Association President, Philip Anderson, encouraged members of the bar to provide pro bono services to immigrants, particularly those in detention.153 According to Anderson, “[l]awyers can make a difference.”154 In support of his contention, he writes, “Figures from the Government Accounting Office [(GAO)] show that asylum seekers with legal representation have three times the chance of being granted asylum as those without counsel.”155
Historical evidence supports the GAO’s findings. In 1961, Charles Gordon, then INS Regional Counsel for the Northwest Region, wrote that the “party [deportee] himself and the administrative process as well could benefit from greater participation by counsel.”156 He cited a 1931 study that revealed that representation in exclusion proceedings had a “marked effect” on the procedure and that “represented aliens prevailed in a far higher proportion of cases, since their counsel were much more effective in raising points of law, in questioning due process, in marshalling relevant evidence, and in advancing claims to United States citizenship.”157
Neither the GAO findings referred to by Anderson, nor the report cited by Gordon speak directly to the effect of counsel on the outcome of deportation proceedings overall,158 but these studies certainly suggest that assistance of counsel does help avoid erroneous deprivations of liberty. Admittedly, factors other than representation may have contributed to the results of these studies.159 Nevertheless, [*PG414]the studies are particularly persuasive when the underlying reasons for the impact of counsel in exclusion and asylum are considered. As noted earlier, counsel in exclusion cases is necessary for raising issues of law, collecting and presenting evidence, and advancing citizenship claims.160 Similar arguments have been made with regard to asylum cases,161 and the premise extends to deportation proceedings in general. This Part will demonstrate how the attorney’s ability to highlight legal issues and present evidence can affect the outcome of a deportation proceeding and thus lessen the chances of an erroneous deprivation of liberty.
Recognizing the complexity of immigration law and the deportation process is integral to evaluating the probable value of counsel in a deportation proceeding.162 When the laws and procedures are complex, there is a greater need for counsel to ensure that a just outcome is reached.163 Historically, immigration law has been recognized as complicated and confusing.164 Even the courts have attested to this fact: one court described the INA as “second only to the Internal Revenue Code in complexity.”165
A cursory review of the grounds of deportation provides initial evidence of the complex nature of the law.166 For example, the INA breaks the grounds for deportation into six major categories.167 Within these categories there are parts, subparts, exceptions, and [*PG415]waivers. Almost all of these various provisions encompass several elements.168
To further complicate matters, the statutory language alone is far from self-explanatory. Statutory definitions, regulations, and case law must be consulted to give meaning to the provisions.169 The criminal grounds for deportation provide a particularly convincing example of the difficult task facing a non-lawyer immigrant trying to understand the INA.170 For instance, in articulating the criminal grounds for deportation, the INA uses the word “convicted.”171 Although typically associated with a “guilty” finding, for deportation purposes, convictions encompass dispositions other than “guilty.”172 The definition section of the INA must be consulted to determine whether a criminal disposition rendered an immigrant “convicted.”173
Immigrants placed in deportation proceedings now must take careful notice of the aggravated felony provisions in the INA since Congress has broadened the definition of aggravated felony and applied it retroactively.174 This task will be difficult for unrepresented immigrants, as the statute itself offers little guidance. Although the INA’s definition of aggravated felony is a starting point, case law research is necessary.175
Admittedly, it is the IJ’s responsibility to be knowledgeable of the current status of the law and to determine whether a particular conviction constitutes an aggravated felony.176 In many cases, the application of the law will be straightforward. Over time, clear rules develop that are applied with little legal debate.177 Yet, inevitably, as changes to [*PG416]the law are made, legal ambiguities will arise, and the application of law will be called into question.178
The passage of the IIRIRA has magnified this problem for the unrepresented immigrant.179 Questions as to the precise meaning of statutory changes to the INA have arisen among both scholars and practitioners.180 As a result, legal challenges to the Service’s interpretation of the IIRIRA and the constitutionality of some provisions have ensued.181
Successful legal challenges have highlighted the increased potential for erroneous deprivations of liberty for unrepresented immigrants since unchallenged legal issues may result in unjust outcomes. A poignant example of the potential for erroneous deprivation of liberty was the recent challenge to the retroactive application of the changes to the eligibility for § 212(c) waivers.182
The IIRIRA’s replacement of § 212(c) waivers with Cancellation of Removal denied relief to aggravated felons.183 However, many immigrants who had committed aggravated felonies, as now defined, also had pending applications for § 212(c) relief when the eligibility standards were changed.184 Upon the Attorney General’s directive, the changes applied retroactively so that pending applications were dismissed and orders of deportation were executed.185 In May, 1998, the First Circuit Court of Appeals sustained a challenge to the retroactive application of the changes to pending § 212(c) waiver applications in [*PG417]Goncalves v. Reno.186 The First Circuit held that pending applications should be adjudicated.187
Although counsel cannot ensure that the IJ will interpret and apply the INA properly and constitutionally, at a minimum, it allows the immigrant the opportunity to advance complex legal arguments which he would not be able to do pro se.188 When sweeping changes are enacted, counsel is integral in helping to clarify legal ambiguities that threaten to erroneously deprive immigrants of their liberty.189
Not only can attorneys raise issues of law, but their expertise in presenting evidence, eliciting testimony, and challenging due process grounds in procedurally complex hearings can significantly affect the outcome of the deportation proceeding.190 The Aguilera-Enriquez court failed to recognize the complexity of deportation proceedings in comparing them to probation revocation hearings.191 Probation revocation proceedings are described as informal, non-adversarial, and flexible.192 The same cannot be said of deportation proceedings.193 Although neither the rules of evidence nor the Administrative Procedures Act (APA) rules for formal adjudications apply in deportation proceedings, these proceedings encompass many of the formalities of a trial.194 For example, the proceedings are recorded, witnesses are given the oath, there is an opportunity for cross examination, and evidence is entered into the record.195
The Service is represented by counsel, indicating that the government perceives a need for counsel in deportation proceedings.196 The Service trial attorney puts the unrepresented immigrant at a dis[*PG418]advantage from the outset.197 Professor Deborah Anker studied the role of Service trial attorneys in asylum cases.198 She found that the trial attorney tended to attack the applicant’s characteristics, focusing on “discover[ing] weaknesses in the asylum applicant’s case by challenging the credibility of her testimony and written application.”199 In addition, the trial attorneys vigorously questioned the non-citizen in an attempt to point out inconsistencies in the testimony.200
As Anker discovered, the applicant’s testimony and demeanor during the hearing impacts the IJ’s perception of the claim.201 IJ’s often found that asylum applicants’ testimony was “vague, unresponsive, and evasive.”202 Although Anker’s study was limited to asylum cases, it seems likely that many immigrants in deportation proceedings would encounter similar “perception” problems, particularly when they seek discretionary relief or when the outcome of the case depends substantially on their own testimony.203 In these cases, the immigrants would likely be subject to similar attack by the INS trial attorney.204
The Service’s adversarial position is consistent with notions about the proper role of an attorney as advocate.205 The adversarial system of law depends upon the zealous advocacy of an attorney on behalf of [*PG419]his client.206 However, unlike the judiciary, agency adjudicators generally do not rely so strictly on the adversarial model.207
Historically, Immigration Judges have served the combined function of prosecutor and adjudicator.208 Through 1950, IJs, then working within the service, would conduct hearings and investigate deportation cases.209 After 1950, the Immigration Judges were no longer assigned to conduct investigations.210 They have, however, continued to play an active role in the hearings.211 According to the INA, the IJ shall “interrogate, examine, and cross-examine the alien and any witnesses.”212 Although this judicial activism can be neutral,213 in some situations, an unrepresented immigrant may feel as though he is being prosecuted by two attorneys rather than one.214
With regard to asylum cases, Anker found that IJs do sometimes affirmatively assist the applicants.215 Yet, for the most part, it appears that the goal of the IJs’ interrogations is to test the applicant’s credibility.216 Supposed neutrality of the Immigration Judge is thus thrown into question and an immigrant’s response is undoubtedly effected.217
Thus, although the independence of the IJs has been an important step in protecting the liberty interests at stake in deportation proceedings, the retention of the IJ’s inquisitorial role has resulted in [*PG420]perhaps the worst of both worlds for the unrepresented immigrant.218 Without counsel an immigrant may be unable to “conserve the advantages of formality;” at the same time he is being subjected to interrogation by the IJ and other informalities that call into question the fairness of the hearing.219 Regardless of the legitimacy of an immigrant’s claim or defense, his attempt to present, without counsel, a well-developed defense to deportation may be futile.220
Part of this problem stems from the circumstances of the hearings themselves. Testifying in a deportation proceeding can be frustrating and intimidating.221 One experienced trial attorney described the mindset of a witness in a jury trial:
[M]ost witnesses other than experts or police officers have had no experience in telling their story in court, under oath, before judge and jury, knowing that some nasty lawyer for the other side is going to take shots at them in an attempt to destroy their credibility.
The significance of testifying in a courtroom under these circumstances is not lost on witnesses. They are apt to do strange things. They may become frightened, animated, profane, or quiet. They may sulk or exult. They may become snide, sarcastic, and mean—or too agreeable, pliable, and compromising.222
Similarly, testifying in immigration court during a deportation proceeding can induce this same reaction from an immigrant or from other witnesses on his behalf.223 The gravity of the situation undoubtedly makes the immigrant more nervous. Furthermore, the immigrant in deportation proceedings may find himself in a unique situation in comparison to parties in other civil hearings; many immigrants face language barriers and a “lack of familiarity with [U.S.] institutions,” both of which exacerbate the apparent complexity of the pro[*PG421]ceedings.224 This context must be taken into account when evaluating the potential for erroneous deprivations of liberty.225
Counsel’s thorough preparation and careful guidance throughout the hearing can counter some of the immigrant’s natural reactions which may prove damaging to his case.226 Counsel’s employment of standard witness preparation techniques can lessen the chance that the client will damage his case through testimony, and, instead, it can help the client to bolster his claims.227 These techniques include reviewing his testimony with him prior to the hearing, instructing him to remain calm, encouraging him to listen to the question and to answer it completely and clearly, having him ask for a question to be repeated if it is unclear, informing him to remain silent if a question is objected to, and reminding him that expressions of emotion are not inappropriate as long as they do not show disrespect for the IJ or the proceeding.228
Through direct examination, an attorney can remind the client of facts he may forget to relay if left to tell his story on his own.229 Counsel can also prepare the client for cross-examination.230 By reviewing the theory of the case and speculating as to what arguments and evidence the INS attorney will attack, counsel can best advise his client of what to expect.231 Counsel can also advise his client to answer questions with factually correct statements because “the witness should avoid trying to determine what the ‘best’ answer is.”232
Perhaps most importantly, because counsel knows what factors the IJ will consider in making his decision, counsel is able to elicit testimony and present evidence that will best support the immigrant’s claim.233 For example, if an immigrant applies for Cancellation of Removal, the IJ will consider the following factors in making a decision to exercise his discretionary authority: family ties with the United States, residence of long duration in the country (particularly when the inception of residence occurred while the respondent was at a [*PG422]young age), evidence of hardship to the respondent and family if deportation occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character (e.g., affidavits from family, friends, and responsible community representatives).234 It is unlikely that many of these factors will be obvious to an unrepresented immigrant. Although some of these factors can be proven without advance preparation, establishing other factors requires investigation and preparation.235 When possible, affidavits, letters, and documentation should be offered as proof.236 Counsel plays an important role in guiding an immigrant through the process of collecting documentation.237
While many of the procedural protections currently do little to guard against erroneous outcomes for unrepresented immigrants, one potentially beneficial procedural safeguard is the requirement that the IJ advise the immigrant as to any forms of relief for which he may be eligible.238 The Ninth Circuit has recognized that this requirement places a “significant burden” on the IJ.239 Upon review of the record, the IJ must advise the non-citizen of any reasonable possibilities of relief and give him the opportunity to develop his claim for such relief.240
However, even the Ninth Circuit Court of Appeals has acknowledged the limitations to this safeguard.241 In Moran-Enriquez, the court [*PG423]held that “IJs are not expected to be clairvoyant; the record before them must fairly raise the issue.”242 Therefore, an IJ has no responsibility to advise a non-citizen about forms of relief unless the record indicates that he may be eligible.243 Although the record established by an unrepresented immigrant may be sufficient to trigger the IJ’s responsibility,244 in some cases it will not.245 Without the assistance of counsel to help build the record, to determine relevant facts, or to discern circumstances that indicate that the non-citizen is eligible for relief, an unrepresented immigrant will likely be unable to present his case fully and persuasively during a deportation hearing.246
Furthermore, even if the IJ advises the non-citizen of the possibility of relief, there is no assurance that an eligible immigrant will be granted relief. First, cultural factors or fear of unknown consequences may prevent an immigrant from sharing personal, and perhaps painful, information with the IJ.247 Counsel, however, is in a better position to determine if his client is eligible: an attorney is more clearly “on his side” and over time can develop a trusting relationship that will facilitate this sharing of information.248 Second, as discussed previously, even if the IJ advises the immigrant about the possibility of relief, counsel is needed to help gather and present supporting evidence.249
Finally, according to the court in Aguilera-Enriquez, the case-by-case approach to appointed counsel provides additional procedural protection: If as a result of appearing unrepresented, an indigent immigrant is found deportable, the courts appoint counsel and re[*PG424]commence the proceedings.250 The Aguilera-Enriquez decision suggests that a court’s review of the record to determine if counsel was needed will prevent erroneous deprivations of liberty and ensure the guarantees of due process.251 However, this reasoning falls short of meeting the dictates of due process.
First, it presumes that an immigrant who was unrepresented in his hearing will now be able to proceed in federal court. Second, assuming he knows to raise the issue of appointed counsel before a district court judge, the court will review only the record that was made without the assistance of counsel.252 This record will reflect all of the problems of self-representation that have been discussed previously and, thus, in most cases, will not be of assistance to the court in determining how counsel could have affected the outcome of the case.253 As the dissent in Aguilera-Enriquez pointed out, relevant information that may have affected the outcome of the proceeding will be missing from the record; the court cannot possibly speculate as to what evidence may have been brought forth by counsel.254
Consequently, the case-by-case approach does not provide sufficient protection against the erroneous deprivations of liberty which inherently result when immigrants are unrepresented in deportation proceedings. The promise of counsel for all indigent immigrants will, at a minimum, help the immigrant to understand the charges against him and help him to understand the hearing process; ensure that there is some investigation into possible defenses and forms of relief and that the immigrant is prepared to testify and present supporting evidence; and explore the possible legal challenges to the applicable provisions. This step will provide a necessary safeguard against erroneous deprivations of liberty.
Although courts have rejected claims for a per se right to appointed counsel in deportation proceedings, the time has come to recognize that the promise of fundamental fairness---the touchstone of due process---cannot be fulfilled without counsel. The IIRIRA and other changes to the INA have made this painfully obvious.255 The severity of the new INA puts many immigrants, some of whom previously had no fear of deportation, in potential jeopardy of being forced to leave their lives in the United States---maybe the only lives they have ever known.
With such a significant liberty interest at stake, the protections against erroneous deprivations of liberty take on great importance.256 However, the case-by-case approach to appointed counsel does not adequately prevent erroneous outcomes, particularly since legal challenges and knowledge of the law can make the difference between remaining in the United States and being forced to leave, perhaps forever.257 The foregoing assessment of the Mathews test factors—first, establishing a significant liberty interest and, second, the likelihood of its erroneous deprivation—supports the claim that due process requires appointed counsel for all indigent immigrants.
On the other side of this equation is the government’s interest in not providing counsel. Undoubtedly, there will be a financial burden. But can that interest really outweigh the interests facing immigrants? The government has an even stronger interest: ensuring that constitutional provisions are satisfied. Due process requires the utmost protection when the most important interests are at stake. Appointed counsel for immigrants in deportation proceedings is an essential element of that protection.