Tainted From Their Roots: The Fundamental Unfairness of Depriving Foreign Nationals of Counsel in Immigration Court

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Jehanzeb Khan, Associate Member, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

“This seems to us to be an obvious truth.”[1] In Gideon v. Wainwright, Justice Hugo Black stated that people haled into court by virtue of a criminal charge who are too poor to afford a lawyer cannot be assured a fair trial unless counsel is provided to them.[2] Importantly, this “obvious truth” exists as a right afforded to criminal defendants under the Sixth Amendment of the Constitution.[3] However, there is no similar Constitutional protection for individuals in immigration removal proceedings, including immigrants who are apprehended while attempting to enter the United States and individuals who are already in the United States and facing deportation.[4] Although various federal statutes have provided for individuals in removal proceedings to secure counsel, only thirty-seven percent of all individuals in removal proceedings are actually able to do so.[5]

While the consequences of an immigration proceeding are akin to those in a criminal proceeding, their rights are ostensibly limited because foreign nationals are not protected by the Sixth Amendment in removal proceedings. Specifically, while a criminal defendant need only demonstrate that their right to counsel was violated, certain circuits have found that foreign nationals must demonstrate that they were prejudiced by the lack of counsel—particularly, that the lack of counsel resulted in removal or deportation.[6]

This Note evaluates the circuit split of whether or not pro se individuals who are subject to removal proceedings in immigration courts must separately demonstrate that the absence of counsel leads to prejudice. Section II provides detail about the right to counsel in criminal proceedings, how a Constitutional right provides greater protection than a right protected by a federal statute, and the history and background of 8 U.S.C. § 1362, a statute which provides respondents in removal proceedings a right to counsel. Section II also outlines the caselaw from circuits that have ruled on the circuit split and whether a foreign national needs to demonstrate how a lack of counsel in their immigration proceeding resulted in prejudice. Section III explains why federal courts should not require foreign nationals to demonstrate prejudice when they are denied their right to counsel in immigration proceedings. Finally, Section IV concludes with framing the current legal landscape and reaffirming why federal courts should not require foreign nationals to demonstrate prejudice.


[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

[2] Id.

[3] INGRID EAGLY & STEVEN SHAFER, ACCESS TO COUNSEL IN IMMIGRATION COURT, (American Immigration Counsel eds., 2016).

[4] Id.

[5] Id.

[6] These circuits conflate prejudice with the “harmless error doctrine.” Namely, that despite a legal error by a judge (like denying a foreign national of their statutory right to counsel), the foreign national would have be removed anyway, thus nullifying the need to appeal.

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