An immigration Gideon for lawful permanent residents.

• Author: Johnson, Kevin R.
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. THE LIMITED AVAILABILITY OF LEGAL SERVICES IN CIVIL CASES II. THE NEED FOR REPRESENTATION IN REMOVAL CASES II. THE LAW ON THE RIGHT TO COUNSEL IN REMOVAL PROCEEDINGS IV. A DUE PROCESS RIGHT TO COUNSEL FOR LAWFUL PERMANENT RESIDENTS A. The Interests at Stake B. The Risk of Error and the Probable Value of Counsel C. The Costs and Administrative Burden of Counsel and the Interests of the Government in Efficient Adjudication CONCLUSION INTRODUCTION

Fifty years ago, the Supreme Court decided Gideon v. Wainwright, (1) the landmark case that constitutionally guaranteed counsel to defendants in criminal prosecutions in the United States. In evaluating the ripple effects of that decision, it is critical to remember that the Court's decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. (2) American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. (3)

As is often true for dichotomies, the differences between civil and criminal proceedings blur at the margins. There are civil cases where the stakes are extraordinarily high, so high that they arguably approximate the life and liberty interests implicated by a criminal prosecution. For example, a loss of public benefits or potential eviction from an apartment can have a devastating impact on the life of an indigent person. The assistance of a lawyer can make all the difference to the ultimate outcome of such high stakes civil proceedings.

This Essay studies the right to counsel in a particular category of civil cases--immigration removal cases, which implicate life and liberty interests similar in kind to those at stake in criminal prosecutions. The existing scholarship analyzing the right of counsel for noncitizens in removal proceedings generally has highlighted the great need for representation, as well as the weighty interests at issue, but has not fully fleshed out the legal arguments for guaranteed representation. (4) Alternatively, some commentators argue for a right to counsel for narrow categories of particularly sympathetic and vulnerable noncitizens facing removal, such as detained immigrants, asylum-seekers, or juveniles. (5)

In contrast, this Essay contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to immigrants, requires guaranteed counsel for lawful permanent residents, (6) the group of noncitizens most likely to have the strongest legal entitlement to remain in, as well as the likelihood of having the deepest community ties to, the United States. Temporary visitors and undocumented immigrants generally lack such legal interests and community ties. (7) Recent developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limitations imposed by Congress on judicial review of agency removal decisions, and the racially disparate pattern of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.

1. THE LIMITED AVAILABILITY OF LEGAL SERVICES IN CIVIL CASES

   Charged with felony burglary, Clarence Gideon requested counsel. After the trial court denied his request, Gideon conducted his own defense, and the jury returned a guilty verdict. (8) In finding that Gideon had a right to counsel under the Sixth Amendment, the Supreme Court declared that

   reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.... That government hires lawyers to prosecute and [that] defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. (9) Yet in 2011, "an estimated eighty percent of the legal needs of the poor [went] unmet" in the United States. (10) In response to the obvious need, many observers have called for what is known as a "civil Gideon," or guaranteed counsel in certain categories of civil cases. (11) In 2006, for example, the American Bar Association "urged federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving sheher, sustenance, safety, health or child custody." (12) The ABA recognized that, although perhaps an eviction proceeding lacks consequences equivalent to the possible loss of liberty in a criminal case, such a case nonetheless can have a dramatic impact on a person's entire life and that of his family.

   Counsel is not wholly unavailable to the indigent in civil matters. As part of the nation's "war on poverty," Congress created the Legal Services Corporation (LSC), (13) through which the federal government funds a certain amount of legal services for the poor. LSC-supported offices across the country represent people who face possible loss of public benefits or eviction and who have other civil legal needs. (14) However, repeated budget cuts have left the LSC "woefully underfunded and unable to fulfill its mission of creating equal access to justice for those who face economic barriers. Compounding the problem, other funding sources for free legal help have also sharply declined." (15)

   Recognizing that the needs of the poor for representation in civil proceedings continue to go unfulfilled, the organized bar has strongly endorsed the pro bono publico obligations of private attorneys. (16) Pro bono work is common among many attorneys. However, large law firms, which are among the strongest supporters of pro bono within the private bar, have found it difficult in these challenging economic times to maintain their pro bono commitment. (17)

2. THE NEED FOR REPRESENTATION IN REMOVAL CASES

   Immigration removal proceedings-often referred to colloquially as "deportation" proceedings--are matters in which the U.S. government seeks to forcibly remove a noncitizen from the country. (18) They are a category of civil cases in which the need for counsel is extraordinarily high. Each year, the U.S. government initiates removal proceedings against thousands of noncitizens, including lawful permanent residents, nonimmigrants, and undocumented immigrants. (19) Roughly half of the noncitizens in such proceedings from fiscal year 2007 to 2011 lacked legal representation. (20) During the same general time period, the number of noncitizens removed from the United States increased to record levels of nearly four hundred thousand annually. (21)

   The U.S. government's aggressive removal of "criminal aliens" has dramatically increased the need for counsel for noncitizens. The Obama Administration's much-touted "Secure Communities" program, for example, which requires state and local law enforcement agencies to share information with U.S. immigration authorities about noncitizens arrested, has facilitated the removal of tens of thousands of persons arrested for, but not necessarily convicted of, relatively minor criminal offenses. (22) These are precisely the kinds of noncitizens who, if provided with counsel, might be able to successfully defend against removal from the United States.

   Indigent immigrants often fall outside the legal safety net. In 1996, Congress restricted LSC-funded legal service providers to the representation of lawful permanent residents. (23) It thus prohibited representation of the population of between eleven and twelve million undocumented immigrants. (24) Few organizations currently provide free or low-cost legal services to undocumented immigrants. (25) Although LSC-funded organizations can represent lawful permanent residents, a 2011 survey found that only legal service programs in Los Angeles and New York had "large immigration projects." (26) Moreover, pro bono representation in individual removal cases is often not readily available; large law firms tend to prefer providing pro bono assistance in large impact cases. (27)

3. THE LAW ON THE RIGHT TO COUNSEL IN REMOVAL PROCEEDINGS

   Proceedings to remove noncitizens from the United States have long been classified as "civil" rather than "criminal." (28) As the Supreme Court explained in holding that the Fourth Amendment's exclusionary rule does not apply in removal cases,

   [a] deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.... ... The [immigration] judge's sole power is to order deportation; the judge cannot adjudicate guilt or punish the respondent for any crime related to unlawful entry into or presence in this country. Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing. (29) Consequently, courts have held that the Sixth Amendment does not guarantee counsel to a noncitizen in removal proceedings. (30)

   The increasing intersection of criminal and immigration law can clearly be seen in the much-publicized 2010 Supreme Court decision in Padilla v. Kentucky. (31) In that case, the Court held that a failure of counsel to advise a noncitizen of the possible immigration consequences of a plea agreement and criminal conviction (i.e. possible removal), could give rise to an ineffective assistance of counsel claim under the Sixth Amendment. After pleading guilty in a Kentucky criminal prosecution to the transportation of marijuana, Jose Padilla, a lawful permanent resident from Honduras, faced removal after living nearly forty years in the United States. (32) The Court recognized that "[t]he importance of accurate legal...