Constitutional and Procedural Pathways to Freedom From Immigration Detention: Increasing Access to Legal Representation

CONSTITUTIONAL AND PROCEDURAL
PATHWAYS TO FREEDOM FROM IMMIGRATION
DETENTION: INCREASING ACCESS TO LEGAL
REPRESENTATION
ADITI SHAH*
Each day, tens of thousands of noncitizens are caged in immigration pris-
ons and jails across the United States. Locked up and separated from their
families and the outside world, detained noncitizens experience the pain and
suffering associated with criminal incarceration without many of the same
salient procedural safeguards. One of the most crucial missing protections is
access to legal representation. Empirical studies show that legal representa-
tion makes all the difference in allowing noncitizens to challenge their
imprisonment and gain freedom. Yet, the vast majority of detained nonciti-
zens never receive legal representation. As a result, for many people in immi-
gration detention, the only conceivable exit options are those worse than
detention itself: deportation or death.
Despite legal scholarship arguing for a right to appointed counsel in re-
moval proceedings, comparatively little attention has been devoted to access
to legal representation for the specif‌ic purpose of seeking freedom from
detention. This Article aims to f‌ill that gap by examining two structural path-
ways to increasing access to legal representation for people seeking release
from immigration detention. First, the Due Process Clause of the Fifth
Amendment demands a right to appointed counsel for the purpose of chal-
lenging detention (the “constitutional pathway”). A direct application of the
procedural due process test established in Mathews v. Eldridge and
expounded in Turner v. Rogers provides suff‌icient justif‌ication to extend the
right to appointed counsel to individuals in immigration detention. Although
courts have yet to recognize a constitutional right to appointed counsel in
criminal bail hearings, the comparative dearth of procedural protections in
immigration detention proceedings justify identifying the right in that con-
text. Second, “legal representation” is not limited to each detainee getting
* Law Clerk to the Honorable Richard C. Wesley, United States Court of Appeals for the Second
Circuit. I am grateful to Sabrineh Ardalan, Peter Margulies, Martha Minow, and Philip Torrey for their
helpful suggestions on earlier drafts of this Article and to the editors of the Georgetown Immigration Law
Journal for their thoughtful feedback. I also thank Martha Minow for her support and guidance in the pro-
cess of developing this Article, and William B. Rubenstein and the Hon. Richard C. Wesley for their men-
torship and encouragement. All opinions in this Article are my own. © 2021, Aditi Shah.
181
her own lawyer: the class action, a device that allows a small group of detained
noncitizens to litigate on behalf of a larger group of detainees, is a powerful,
but underappreciated, tool for allowing detained noncitizens their day in court
(the “procedural pathway”). Two recent developments—specif‌ically Justice
Alito’s dicta on the viability of the class device in Jennings v. Rodriguez
and debates over whether the Immigration and Nationality Act prohibits
classwide injunctions—threaten the existence and eff‌icacy of class
actions in the context of immigration detention. The f‌irst, questioning the
class device’s viability, mistakenly conf‌lates the f‌lexible nature of due
process with the requirements for class certif‌ication. The second, doubt-
ing the permissibility of classwide injunctions, reveals that the only relief
available for the class may be declaratory in nature, which often falls
short of the relief detainees most need.
Immigration detention is unique among the crises currently plaguing the
U.S. immigration system. The impact of the coronavirus pandemic on people
in detention has only made this problem more apparent. Access to legal
representation is crucial to prevent unlawful imprisonment, lessen the eco-
nomic and human costs of detention, and f‌ight forces of xenophobia and
racial prejudice that have inf‌luenced immigration law’s understanding of
“who belongs” for far too long. In tandem, the constitutional and procedural
pathways chart two broad solutions, present benef‌its and limitations, and
raise further ideas for roads to a fairer, more just system.
TABLE OF CONTENTS
INTRODUCTION ......................................... 184
I. THE LAW OF IMMIGRATION DETENTION & OPTIONS FOR RELEASE . . . 187
A. The Law of Immigration Detention .................. 188
B. Options for Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
1. Bond Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
2. Joseph Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
3. Habeas Review ............................ 197
C. Summary of the Role of Counsel. . . . . . . . . . . . . . . . . . . . 198
II. CONSTITUTIONAL PATHWAY: A DUE PROCESS RIGHT TO APPOINTED
COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
A. Locating a Due Process Right to Challenge Detention . . . . 202
B. Applying the Procedural Due Process Test . . . . . . . . . . . . 204
182 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:181
1. Factor One: The Detained Noncitizens’ Interest in
Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
2. Factor Two: The Risk of Unlawful Detention and
Probable Value of Counsel .................... 206
3. Factor Three: The Government’s Interest . . . . . . . . . . 208
C. The Lack of a Constitutional Right to Appointed Counsel in
Pre-trial Criminal Detention. . . . . . . . . . . . . . . . . . . . . . 210
D. The Broad Scope of the Right . . . . . . . . . . . . . . . . . . . . . . 212
III. PROCEDURAL PATHWAY: UTILIZING THE CLASS ACTION DEVICE . . . . 214
A. Types of Class Actions Challenging Immigration Detention 216
1. Class Actions Seeking Custody Hearings . . . . . . . . . . 216
2. Class Actions Seeking Fairer Procedures in Custody
Hearings ................................. 217
3. Key Advantages of the Class Device . . . . . . . . . . . . . 218
B. Examining Threats to Class Actions Challenging
Immigration Detention . . . . . . . . . . . . . . . . . . . . . . . . . . 220
1. Threat One: Challenging the Appropriateness of Rule
23(b)(2) Classes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
a. Arguments Against Rule 23(b)(2) Class Actions
Challenging Immigration Detention. . . . . . . . . . 221
b. Arguments for Rule 23(b)(2) Class Actions
Challenging Immigration Detention. . . . . . . . . . 223
2. Threat Two: Challenging the Availability of Classwide
Injunctive Relief ........................... 225
a. Debates on Whether § 1252(f)(1) Forbids
Classwide Injunctive Relief. . . . . . . . . . . . . . . . 225
b. The Limited Usefulness of ‘Declaratory Relief
Only’ Class Actions. . . . . . . . . . . . . . . . . . . . . 227
C. Class Actions and Legal Representation . . . . . . . . . . . . . . 228
IV. FURTHER CONSIDERATIONS AND ROADS TO FREEDOM . . . . . . . . . . . . 230
A. Racial Inequality and Legal Representation ........... 230
B. Additional Considerations and Roads. . . . . . . . . . . . . . . . 232
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
2020] PATHWAYS TO FREEDOM FROM IMMIGRATION DETENTION 183

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT