Waiting for Gideon: A Future Public Defender’s Outrage Over the Absence of Court Appointed Counsel in Immigration Proceedings

By Clinic Staff

I came into law school with a preconceived plan to work in the area of criminal defense following graduation. Fueled by my interests in wrongful conviction and anti-death penalty advocacy, I have primarily enrolled in classes focusing on the constitutional protections afforded criminal defendants and the practical shortcomings of the system designed to uphold them. Although I often feel deflated at the various ways in which our criminal justice systems undermines the rights of vulnerable defendants, the robust protection afforded by the Sixth Amendment remains a constant source of comfort and hope.1

The Sixth Amendment provides that “[in] all criminal prosecutions, the accused shall enjoy the right to  . . . have the Assistance of Counsel for his defense.”2 Interpreted by the Supreme Court in Gideon v. Wainwright, the Amendment guarantees that indigent defendants shall not face the extraordinary power of the state without the aid of competent counsel.3 The right to a lawyer is assured regardless of the ability to pay.4 As the Court stated in Gideon, “reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”5

I elected to participate in the William & Mary Immigration Clinic after learning that the Constitution requires that defense attorneys alert immigrant defendants of potential immigration consequences in their cases.6 In Padilla, the Court held that defense counsel must inform their clients of any immigration consequences of their conviction.7 If the immigration consequences are beyond the attorney’s scope of knowledge, they must instead, at the bare minimum, alert the client to the potential for consequences and recommend the client seek outside counsel.8 Despite the frequent overlap of the criminal justice system with Immigration Court proceedings, many criminal defense attorneys are not well versed in immigration law. Yet, perhaps they should be forgiven because, “to say that immigration law is vast and complex is an understatement.”9

Despite the exceedingly complex nature of U.S. Immigration Law, there is no rule  guaranteeing a right to counsel in immigration proceedings, regardless of a client’s age, background, or circumstances. Instead, persons facing the extraordinary power of the government in immigration court are merely afforded to the right to counsel if and when they are able to find and afford one. “In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”10 The absence of appointed counsel is made even more shocking when considering the realities of many people facing removal. In a report published by the Brennan Center in 2019, the author estimated that over eighty-five percent of people appearing in U.S. Immigration Courts have limited proficiency in English.11 Beyond limited capacity for communication, persons facing the Court are naturally constrained by limited financial means of persons fleeing traumatic pasts or poverty and unable to attain gainful employment in America. Across America, and here in the Hampton Roads region, access to pro-bono representation is scarce.

It seems to me an “obvious truth,” that persons facing removal cannot be assured anything resembling a “fair trial,” without the aid of competent counsel. This gap in the procedural guarantees afforded to non-citizens in immigration proceedings shocked me. It also made me feel grateful to have joined the Clinic and its efforts to increase access to counsel in an area that so desperately needs it.

[1] See U.S. Const. amend. VI.

[2] Id.

[3] 372 U.S. 335 (1963).

[4] Id. at 344.

[5] Id.

[6] Padilla v. Kentucky 559 U.S. 356 (2010).  

[7] Id. at 387-88.

[8] Id.

[9] Mirriam Seddiq, Immigration Law: A Primer, American Bar Association (Apr. 3, 2019), https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2011/april_may/immigration_law_aprimer.

[10] 8 USC § 1362.

[11] Laura Abel, Language Access in Immigration Courts, Brennan Center for Justice (2011), https://www.brennancenter.org/sites/default/files/legacy/Justice/LangAccess/Language_Access_in_Immigration_Courts.pdf.