A fair hearing for immigrants

By Michelle Chen Jun 05, 2009

In the waning days of the Bush administration, the Justice Department clamped down on the right of immigrants to "effective" legal counsel. Essentially, the administration figured that a lawyer’s incompetence shouldn’t be grounds for holding up a deportation order in court. Attorney General Eric Holder recently overturned his predecessor’s decision, in a ruling that affirmed that immigrants are entitled to, as law professor Bill O. Hing puts it, “a meaningful opportunity to be heard when they claim that incompetent, unethical, fraudulent, or absent performance by their lawyers affected the Board’s decision to remove them.” Lucas Guttentag of the ACLU Immigrants’ Rights Project hailed the move:

The Obama administration recognizes that immigrants facing deportation, including longtime permanent residents with U.S. citizen children and family, should not be denied fair hearings because of incompetent or unscrupulous lawyers who fail in their duty to provide proper representation to vulnerable immigrants, many of whom lack fluency in English and an understanding of the complex procedures that govern their hearings.

Nonetheless, while the Holder ruling opens one channel for relief, the immigration system is full of people who must fight deportation with no legal help, because current law does not guarantee government-appointed counsel. The American Bar Association argues that without comprehensive policies for providing counsel in deportation, the legal process will remain inherently unequal for the immigrants most vulnerable to unjust exile:

By statute, persons in removal proceedings have “the privilege of being represented,” but “at no expense to the Government.” As a result, most immigrants must negotiate this process without counsel. Not surprisingly, pro se immigrants fare far more poorly in these proceedings than do those with legal representation. Put differently, removal cases too often turn on an immigrant’s income, rather than on the merits of his or her claim.

Immigrants lost in the system often wind up in the hands of shady private attorneys, which could lead not only to errors in court, but financial devastation as well. Immigrants in detention have little chance of meaningful relief if they lack access to an advocate who can help them prepare their documentation and legal defense. Meanwhile, the immigration courts are notoriously overburdened and clogged with inefficiency. You’d think by now, the government would realize that it’s not just the immigrants who could use a good lawyer.