“Under my administration, anyone who illegally crosses the border will be detained until they are removed out of our country and back to the country from which they came.”
“We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”
As a cornerstone of the rule of law, due process is guaranteed by the U.S. Constitution to all individuals in the United States, regardless if they are present in the country temporarily or illegally. The Fifth Amendment’s Due Process Clause grants full protections to immigrants in removal proceedings. However, President Trump— and to a large extent his administration—is resolute in his desire to deny these protections to immigrants present in the United States. In January 2017, President Trump issued an executive order on Border Security and Immigration Enforcement, announcing his intention to end the practice of “catch and release”—releasing immigrants into the community while their immigration court hearings are pending. The Trump administration quickly took steps to implement the mass detention of illegal immigrants, many of whom were asylum seekers. These steps included identifying locations and existing infrastructure for new immigrant detention facilities along the U.S.-Mexico border.
Although the Immigration and Nationality Act (INA) allows for the indefinite detention of asylum seekers in removal proceedings, cases have repeatedly challenged the constitutionality of this practice. Most recently, in February 2018, the Supreme Court was asked to rule on the constitutionality of indefinite detention for certain detained aliens in Jennings v. Rodriguez. The Court declined to rule directly on this issue, and instead held that detained immigrants awaiting immigration proceedings had no due process right to periodic bond hearings. As the lower courts continue to grapple with the legality of prolonged immigration detention, the U.S. government detains more than 40,000 individuals on any given day, according to Immigration and Customs Enforcement (ICE).
Deprivation of liberty is not the only due process concern relating to prolonged or indefinite detention of immigrants who are awaiting their court hearings. Currently, no general due process right exists for the appointment of counsel for immigrants in removal hearings. The geographic location, physical infrastructures, and resources available to detained immigrants make it difficult for them to obtain legal counsel or represent themselves pro se. These challenges are even more difficult for indigent immigrants in detention. Many immigration detention facilities are located in rural regions, far from major metropolitan areas, making it difficult for detained immigrants to obtain affordable counsel, if counsel is available at all. The capacity for legal services at immigrant detention facilities, including rooms for legal representatives to meet with detained clients, phone accessibility, and receipt of mail, is extremely limited. Additionally, resources for pro se applicants, such as legal and administrative resources, and even pen and paper, are scarce. In the case of asylum seekers in immigration detention, the consequences of lacking counsel could lead to the arbitrary deprivation of life if the detainee is returned to a country where near-certain death awaits.
There exists a broad range of legal scholarship analyzing the need and legal basis for appointed counsel to indigent asylum seekers that this article does not intend to duplicate. Instead, this article seeks to bolster the argument that appointed counsel to indigent asylum seekers awaiting removal proceedings is a necessary procedural due- process safeguard because of the real-world challenges indigent asylum seekers face in obtaining counsel or representing themselves pro se while in detention. Part II briefly lays out existing legal frameworks impacting the discretionary detainment of asylum seekers in the United States, specifically focusing on the effects on indigent asylum seekers. Part III first summarizes the leading legal arguments for the need of appointed counsel to represent indigent asylum seekers, before bolstering these legal arguments by presenting an overview of the real-world barriers detained asylum seekers face in obtaining effective legal counsel or in representing themselves within today’s immigration detention system. Part IV concludes by positing that if the current administration continues down a path towards large-scale immigrant detention, the government must consider appointment of counsel to indigent detained asylum seekers to protect their procedural due process rights.