Catholic Legal Immigration Network, Inc.

CLINIC, along with five other national immigrant advocacy organizations, signed a petition asking Attorney General Eric Holder to initiate rulemaking on the right to counsel to indigent individauls, where necessary, in removal proceedings to ensure the fundamental fairness of the proceedings.

A copy of the petition, submitted on June 29 2009, is below.

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Petition for Rulemaking toPromulgate Regulations Governing Appointment of Counsel for Immigrants in Removal Proceedings.

Petitioners: 

Catholic Legal Immigration Network, Inc.

National Immigration Forum

National Immigrant Justice Center

Northwest Immigrant Rights Project

Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College

Statement of Petition

Petitioners, (National Immigration Forum, National Immigrant Justice Center, Northwest Immigrant Rights Project, Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College) hereby petition the Department of Justice (“Department”) to initiate a rulemaking proceeding pursuant to the Administrative Procedures Act, 5 U.S.C. § 533, to promulgate regulations governing the appointment of counsel for indigent individuals in immigration proceedings.  The Attorney General has ultimate authority over the administration of Immigration Courts pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1103(g).

II.        Summary of Petition

While the interests at risk in any immigration proceeding are great, they are especially so when an individual appears without counsel.  This is illustrated by the stark disparities in success rates between represented and unrepresented individuals in immigration proceedings.  Represented individuals have significantly more success before Immigration Judges and the Board of Immigration Appeals (“Board”), while the unrepresented are sometimes left with little or no chance of winning their case by avoiding a finding of removability, or by showing eligibility for relief.

Congress has mandated by statute that all individuals in immigration proceedings receive a “reasonable opportunity” to present their case,[1] which many courts view as equivalent to the fundamental fairness embodied in our concept of due process.[2]  In some cases, fundamental fairness requires appointed counsel because the case cannot be adequately presented without legal counsel.  At least one Court of Appeals has recognized that appointment of counsel is required in some cases when the individual is indigent.[3]  However, regulations make no provision for an Immigration Judge to appoint counsel.  This is likely due, in Petitioners’ view, to a misinterpretation of the statutory provisions involved.

To read the complete petition, click here.

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[1] 8 U.S.C. § 1229a(b)(4).

[2] Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006) (“Aliens have both statutory and regulatory entitlements to present all material evidence at impartial hearings.  Any proceeding that meets these requirements satisfies the Constitution as well.”); Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th Cir. 2000) (“The due process standard is supported by the statutory scheme governing immigration proceedings”) (discussing 8 U.S.C. § 1229a(b)(4)(B)); see also Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”) (citing Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-01 (1903)).

[3] Aguilera-Enriquez v. INS, 516 F.2d 565, 568-69 (6th Cir.1975).