February 21, 2019 Substantive Law

Access to Counsel in Immigration Proceedings

By Matthew S. Mulqueen

Reprinted with permission from Litigation News, Winter 2019 (44:2) at 10-13. ©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Between July 2017 and June 2018, the U.S. government separated thousands of children from their families as part of a “zero-tolerance policy” of immigration enforcement.

The practice stirred vigorous public debate over the extent to which arriving parents and children enjoy due process rights. In particular, reports of young children appearing unrepresented in immigration court focused attention on the availability of legal representation for respondents in removal proceedings. Unlike criminal defendants, who have a right to an attorney even when they cannot afford one, respondents in immigration court do not. Indigent respondents must instead rely on scarce pro bono lawyers. Many find themselves without representation. ABA leaders have renewed calls for enhancements to due process in immigration proceedings, including the appointment of federally funded counsel for all indigent persons and unaccompanied minors in removal proceedings.

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