"Deportation without Representation" NJ Law Journal calls for "corps of competent lawyers" to represent immigrants in removal proceedings

The New Jersey Law Journal Editorial Board has called on Attorney General Eric Holder to go beyond his reversal of Bush Administration policy which denied that deportees were entitled to 5th Amendment due process.

The crush of cases is such and immigration law's complexity so great that pro bono volunteers lawyers, non-profit advocacy groups, and immigrants themselves will never be able to furnish enough competent lawyers to assure an adequate hearing for those facing deportation, said the Board in its September 3 editorial:

Deportation Without Representation

New Jersey Law Journal

Every year, 300,000 aliens face removal from the United States in proceedings before 200 immigration judges. Many are in detention pending deportation; others are granted the privilege of voluntary departure. Many appeal to the Justice Department's Board of Immigration Appeals (BIA) and then petition the circuit courts for review.

Circuit judges have responded critically. Second Circuit Judge Robert Katzmann described as a "tsunami" the flood of immigration cases, which had gone from 4 percent to 39 percent of the Second Circuit's docket. In 2006, John Mercer Walker, then chief judge of the Second Circuit, pointed out, "For the BIA to keep current on its docket, even with streamlining so that the disposition is by a single judge, each judge must dispose of nearly 4,000 cases a year — or about 80 per week — a virtually impossible task."

The problem is compounded by the fact that many immigrants cannot afford lawyers and that frequently the quality of the lawyers retained leaves much to be desired. Judge Katzmann said last year, "By the time we get the case, it's often too late. It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good."

The problem was mitigated by the BIA's 1988 ruling, in Matter of Lozada , that ineffective assistance of counsel could be a basis for reopening or setting aside an adverse removal or deportation order. Most circuit courts have embraced that approach, including the Third Circuit, which held in Fadiga v. Attorney General, 488 F.3d 142 (2007), that incompetence of counsel may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due-process objection.

Although former Attorney General Michael Mukasey repudiated Lozada , Eric Holder has reversed that position in a formal opinion, 25 I&N Dec. 1 (A.G. 2009), and has embraced the Fifth Amendment assurance of a fair hearing, which may be jeopardized by ineffective assistance of counsel.

But although there is a statutory "privilege" to hire a lawyer, 8 U.S.C. 1362, the law provides that it must be "at no expense to the government." Reviewing courts therefore have no ability to provide counsel at public expense.

Volunteer attorneys and the financial resources of often impoverished immigrant aliens will never adequately assure the availability of competent counsel to those facing deportation. Many of those facing removal are children who know only America. Others are noncitizen parents who gave birth here to children who are natural-born American citizens. The complications are many, the rules complex and the consequences of removal often drastic.

To deal competently and fairly with the millions of foreign nationals living here who may be subject to removal, a competent corps of lawyers is needed. No court order will bring about such a corps. That is the province of Congress. We know how grave are the budget issues facing the nation. But we know too that democracy depends on the ability to effectively assert rights. We therefore urge the attorney general to bring the problem to the attention of the Congress, and to study how competent assistance of counsel can be afforded to persons facing removal from the United States.

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