Split Over the Right to Effective Counsel in Immigration Proceedings - Circuit Splits

This issue has been building for a while. In January 2009 - the waning days of the Bush administration -  AG Michael Mukasey in the Compean case repudiated the body of law that entitled aliens to relief if their attorney was shown to be incompetent. That measure was quickly renounced by Attorney General Holder.  But the bigger question is - if there is a right to due process in deportation (removal) proceedings does it extend to the right to effective assistance of counsel (which Congress has steadfastly refused to supply)? The Fifth Amendment (in the Scottsboro case - Powell v. Alabama) was the foundation for effective assistance cases before the 6th Amendment was recognized in Gideon v. Wainwright.

The Third Circuit has identified the circuit split (the 4th and 8th deny the right) as ripe for Supreme Court review. - GWC

Split Over the Right to Effective Counsel in Immigration Proceedings - Circuit Splits:

"Today’s post covers yet another circuit split over the applicability of the Due Process Clause. This time, however, the circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.
As the Third Circuit recently illustrated in the following footnote, this question has produced a circuit split that can only be described as "ripe for review":
Because immigration proceedings are civil rather than criminal in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Fadiga, 488 F.3d at 157 n.23. But we have recognized (along with a majority of our sister Courts of Appeals) that "[a] claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process." Id. at 155; see also Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).3"

h/t Legal Ethics Forum

'via Blog this'

Counsel may be required in delinquent child support cases: SCOTUS

In Turner v. Rogers a majority of the Supreme Court held (5-4) that due process analysis may compel the appointment of counsel to defend a person facing jail for failure to pay child support. The key is that the state must provide a fair procedure to determine if the delinquent parent has the ability to pay. - GWC

JUSTICE BREYER delivered the opinion of the Court.

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide

counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

Prof Steven Schwinn has helpful commentary on Constitutional Law Prof blog.
And our Bruce Green has this comment on Concurring Opinions, which begins:

As a professional responsibility professor, what I found surprising in the Court’sTurner decision was the view that assigning a lawyer to the defendant who faces imprisonment for nonpayment of child support “could make the proceedings lessfair overall” by “increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.”For the organized bar, it is an article of faith that a lawyer’s participation makes judicial proceedings more fair, not less fair.  And it’s not clear why that should not be true in this context.  The Court’s sentiments conjure up the stereotype of the crafty lawyer engaging in sly tactics to distract jurors from the truth.

Turner v. Rogers : SCOTUSblog

It's June and the U.S. Supreme Court will, presumably, adhere to its practice of deciding every case argued during the term. That includes the big "civil Gideon" case the issues in which are stated below. the link brings you to all the key documents.

Turner v. Rogers : SCOTUSblog: "Issue: 1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.
Plain English Issue: Whether an indigent defendant has a right to court-appointed counsel when faced with being sent to jail for violating a state court order, and whether this is the kind of case that the Supreme Court can consider."

The answer to Q. 1 should be Yes, but will probably be No. - GWC

New York Courts Will Press for Legal Aid in Foreclosure Cases - NYTimes.com

Chief Judge Jonathan Lippman: everyone facing foreclosure should be represented

The civil Gideon movement!

New York Courts Will Press for Legal Aid in Foreclosure Cases - NYTimes.com