Gideon's migration.

• Author: Eagly, Ingrid V.
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. IMMIGRATION REPRESENTATION OUTSIDE GIDEON A. Nonprofit Organizations B. Pro Bono Representation C. Law School Clinics II. IMMIGRATION REPRESENTATION INSIDE GIDEON A. Advising on Immigration Consequences B. Protecting Against Crime-Based Deportation C. Defending Against Criminal Immigration Charges D. Providing Immigration Legal Services III. GIDEON'S MIGRATION A. A Right to Appointed immigration Counsel B. Building an Immigration Gideon System CONCLUSION INTRODUCTION

Clarence Earl Gideon was a natural-born citizen. (1) During the time when the Missouri native protested the failure of the criminal judge to appoint him counsel, he did not have to worry about the immigration implications of conviction. Yet, even had Gideon been a noncitizen, (2) immigration would not have figured heavily in his case. At the time, a lawful permanent resident charged, like Gideon, with breaking into the local pool hall (3) would not have been subjected to mandatory immigration detention (4) or automatic deportation for that offense, (5) Moreover, the Florida lawyer appointed to represent Gideon at his 1963 retrial would not have been required to advise him regarding the immigration effect of conviction. (6)

Against this historical backdrop of separation between criminal prosecution and deportation, the Supreme Court declared access to counsel in state court

criminal proceedings "a fundamental right, essential to a fair trial." (7) In the years that followed, the Gideon v. Wainwright decision had profound implications for the development of an institutional criminal defender system, but little practical import for access to counsel in deportation proceedings. Today, although all defendants facing potential incarceration enjoy a Sixth Amendment right to representation at government expense, (8) persons facing deportation have only a privilege to retain counsel at their own expense. (9) While the poor charged with crimes draw on a universal, albeit often-criticized, state-funded system for appointed counsel, (10) in immigration proceedings the majority of the poor proceed pro se. (11) While criminal counsel must satisfy a minimum constitutional standard of competency, (12) it is less clear that immigration counsel has a parallel requirement of effective representation. (13) Finally, although Gideon has firmly guarded the individual counseling ideal in criminal cases, (14) the indigent counseling system for immigration now incorporates numerous alternatives to traditional full-service representation, including group information sessions, (15) "unbundled" legal services, (16) and nonattorney representation. (17)

In this moment a half century after Gideon, however, the once-separate domains of criminal law and immigration law have merged. At the level of everyday practice, criminal defense attorneys now incorporate aspects of what is traditionally defined as immigration law into their work. (18) This shift in practice follows an increasingly complex integration on the ground between criminal prosecution and immigration enforcement. (19) The criminal-immigration integration reflects dramatic expansion in the range of crimes that make noncitizens deportable. (20) It also includes an increased use of jail-based methods for screening the immigration status of persons arrested by local police. (21) So-called "criminal aliens" now receive top priority for deportation= and are routinely detained in actual jails or detention centers with prison-like conditions while awaiting their immigration hearings. (23) Today, immigration crime is the largest single category of crime prosecuted by the federal government (24) and noncitizens are over one-fourth of federal prisoners. (25) Even the Supreme Court has acknowledged the close connection between immigration and criminal defense by establishing in 2010 that the Sixth Amendment requires defendants to be advised of the immigration consequences of conviction. (26) The legal landscape in which Gideon was born has changed.

This altered landscape presents new challenges for defining the right to appointed counsel for the poor. How far does the obligation of Gideon-appointed counsel extend to assist noncitizen criminal defendants with their immigration legal needs? Is there a constitutional or statutory obligation to provide Gideon-styled counsel in deportation proceedings? More critically, as the provision of immigration counsel to the poor expands, how should such services be funded, staffed, and allocated?

In this Essay, I do not make a claim concerning the correct resolution of these issues. Nor do I give attention to the related question of the right to appointed counsel in civil matters other than immigration. (27) Instead, my focus is twofold. First, I identify the current practice of civil and criminal indigent immigration representation, which is not well documented in the academic literature and on which the future system of immigrant representation will be built. In particular, I show that there is a mixed model of civil immigration legal services providers (including nonprofit organizations, pro bono volunteers, and law school clinics), which is increasingly supplemented by appointed Gideon counsel providing immigration legal services to criminal defendants (including everything from advising on immigration consequences to actually representing the defendant in immigration court). Second, I draw on the lessons of Gideon and the current public defender system to introduce a framework for evaluating alternative approaches for structuring immigration defense services for the poor. Specifically, my framework explores how the goals of equality, efficiency, and efficacy have shaped the nation's provision of indigent criminal defense. How each of these goals is prioritized and defined in building the immigration Gideon system, I argue, will shape what that system looks like fifty years from now.

The remainder of this Essay proceeds in three Parts. Part I sets forth the actual practice of indigent immigration representation as it has evolved in the civil system without a universal guarantee to appointed counsel. Part II analyzes four different forms of immigration representation now provided by public defenders in both state and federal courts. Part III turns to Gideon's future migration. Here, I identify a growing movement to import the Gideon model directly into immigration proceedings and introduce a framework for evaluating possible delivery systems.

1. IMMIGRATION REPRESENTATION OUTSIDE GIDEON

   The debate over whether Gideon extends to civil proceedings is as old as the decision itself. (28) Yet, with few exceptions, a right to counsel at government expense has not been established in the civil arena. (29) As a result, inside the criminal courtroom, defendants receive full-service representation through institutional providers, including public defender programs, contract attorney agreements, or court appointments. (30) In contrast, outside of Gideon, litigants rely on a far more limited pool of free legal services. (31)

   As in other areas of civil legal assistance for the poor, (32) the unmet need for immigration counsel is dire. In 2011, nearly half of deportation court proceedings were conducted without counsel. (33) For immigrants in detention or immigrants unable to afford legal counsel, rates of representation are considerably lower. (34) Furthermore, studies have found that those unable to obtain representation are more likely to be deported, demonstrating that the lack of representation seems to matter. (35)

   In the discussion that follows, I identify three primary legal services delivery models that currently exist for civil immigration matters: nonprofit organizations, both government and philanthropically funded; pro bono legal services; and law school clinics. This analysis does not provide an exhaustive discussion of all forms of representation. Rather, it familiarizes readers with the most important institutions for providing immigration counsel in order to lay the groundwork for later exploration of alternative designs for expanding the indigent immigration representation system.

   1. Nonprofit Organizations

      A comprehensive catalogue compiled by the Immigration Advocates Network includes 863 nonprofit organizations that provide legal services on immigration or citizenship cases. (36) Across these various nonprofits, client access to services is limited by funding type and office location. In addition, most organizations specialize in select areas of immigration law, such as family-based petitions or asylum.

      Some nonprofit organizations providing immigration services receive federal funding from the Legal Services Corporation (LSC) and are therefore subject to especially strict restrictions concerning the types of immigration cases that their attorneys can handle. (37) One area of recent liberalization in federal legal services is funding for immigrant crime victims. (38) As a result, attorneys at programs such as the Legal Assistance Foundation of Los Angeles now specialize in seeking residency for battered immigrants, helping human trafficking victims obtain visas, and representing refugee torture survivors. (39) In practice, however, LSC organizations dedicate only a tiny fraction of their resources to immigration matters. (40)

      The unmet demand for services is most acute for immigrants housed in geographically remote detention locations. Many of the nonprofit organizations that do provide legal assistance at detention locations outside urban centers receive funding from the Executive Office of Immigration Review's Legal Orientation Program (LOP), which operates at twenty-five detention centers around the country. (41) In both group orientations and more individualized pro se workshops, LOP attorneys advise detainees about the immigration process, potential relief from deportation, and pro se advocacy strategies. (42) Many programs have...