Aliens’ Right to Counsel in Removal
Proceedings: In Brief
Kate M. Manuel
Legislative Attorney
June 20, 2014
Congressional Research Service
7-5700
www.crs.gov
R43613
Aliens’ Right to Counsel in Removal Proceedings
Summary
The scope of aliens’ right to counsel in removal proceedings is a topic of recurring congressional
and public interest. This topic is complicated, in part, because the term right to counsel can refer
to either (1) the right to counsel of one’s own choice at one’s own expense, or (2) the right of
indigent persons to counsel at the government’s expense. A right to counsel can also arise from
multiple sources, including the Fifth and Sixth Amendments to the U.S. Constitution, the
Immigration and Nationality Act (INA), other federal statutes, and federal regulations. Further, in
some cases, courts have declined to recognize a “categorical” right to counsel, applicable to all
aliens in removal proceedings, but have found that individual aliens could potentially have a right
to counsel on a case-by-case basis because of their specific circumstances.
Right to Counsel at the Alien’s Expense. The Fifth Amendment to the U.S. Constitution has
generally been construed to mean that aliens have a right to counsel at their own expense in
formal removal proceedings. The Fifth Amendment guarantees that “[n]o person ... shall be
deprived of life, liberty, or property” without due process of law. Aliens—including those who
have entered or remained in the United States in violation of federal immigration law—have been
found to be encompassed by the Fifth Amendment’s usage of “person,” and removal can be seen
as implicating an alien’s interest in liberty. Thus, courts have historically viewed access to
counsel at one’s own expense as required to ensure “fundamental fairness” in formal removal
proceedings. While then-Attorney General Mukasey’s 2009 decision in Matter of Compean
expressed doubt about the Fifth Amendment basis for aliens’ right to counsel at their own
expense, this decision was subsequently vacated by Attorney General Holder.
Various federal statutes and regulations also provide aliens with a right to counsel at their own
expense. Some of these provisions refer to such counsel as a “privilege.” However, they have
generally been construed as conferring a legally enforceable right.
Right to Counsel at the Government’s Expense. Aliens, as a group, generally do not have a
right to counsel at the government’s expense in administrative removal proceedings under either
the Sixth Amendment or the INA. The Sixth Amendment’s “right to ... have the Assistance of
Counsel” at government expense, in the case of indigent persons, applies to criminal proceedings.
Removal proceedings, in contrast, are civil in nature (although aliens subject to judicial orders of
removal may have a Sixth Amendment right to counsel in the criminal proceedings that result in
such orders). Similarly, the INA and its implementing regulations do not purport to provide a
right to appointed counsel for any aliens except those removed by the Alien Terrorist Removal
Court, which has not been used to date.
Individual aliens could, however, potentially be found to have a right to counsel at the
government’s expense on other grounds, depending upon the facts and circumstances of the case.
At least four federal courts of appeals have opined that the Fifth Amendment’s guarantee of due
process could require the appointment of counsel on a case-by-case basis for individual aliens
who are incapable of representing themselves due to “age, ignorance, or mental capacity,”
although it does not appear that any alien has actually been provided with appointed counsel, to
date, on this basis. In addition, Section 504 of the Rehabilitation Act has been construed to
require the appointment of “qualified representatives” for aliens who are “mentally incompetent”
to represent themselves in removal proceedings. These representatives may be pro bono, or
appointed at government expense, and they can include licensed attorneys as well as persons who
are not attorneys.
Congressional Research Service
Aliens’ Right to Counsel in Removal Proceedings
Contents
Right to Counsel at the Alien’s Expense .......................................................................................... 2
Fifth Amendment ....................................................................................................................... 2
INA and Other Provisions of Immigration Law ........................................................................ 3
Right to Counsel at the Government’s Expense .............................................................................. 6
Sixth Amendment ...................................................................................................................... 6
INA and Other Provisions of Immigration Law ........................................................................ 7
Fifth Amendment ....................................................................................................................... 8
Rehabilitation Act ...................................................................................................................... 9
Contacts
Author Contact Information........................................................................................................... 11
Congressional Research Service
Aliens’ Right to Counsel in Removal Proceedings
he scope of aliens’ right to counsel in removal proceedings (i.e., proceedings to remove
them from the United States) is a topic of recurring congressional and public interest. This
Ttopic is complicated, in part, because the term right to counsel can refer to either (1) the
right to counsel of one’s own choice at one’s own expense, or (2) the right of indigent persons to
counsel at the government’s expense. A right to counsel can also arise from multiple sources,
including the Fifth and Sixth Amendments to the U.S. Constitution, the Immigration and
Nationality Act (INA), other federal statutes, and federal regulations. Further, in some cases,
courts have declined to recognize a “categorical” right to counsel, applicable to all aliens in
removal proceedings, but have found that individual aliens could potentially have a right to
counsel on a case-by-case basis because of their specific circumstances. In addition, federal, state,
and local governments may provide counsel to aliens in circumstances where they have not been
seen as having a legal right to counsel.1
As used here, the term removal proceeding refers to formal proceedings before an immigration
judge under Section 240 of the INA.2 There are other types of proceedings that can result in an
alien being removed from the United States—most notably, expedited removal under Section 235
of the INA.3 However, insofar as these other types of proceedings involve aliens who have few, if
any, ties to the United States, the aliens subject to them could be seen to lack constitutional or
statutory rights to counsel,4 and thus this report does not address these other forms of removal
proceedings.
This report provides an overview of the various legal authorities governing aliens’ right to
counsel—as that term is broadly understood—in removal proceedings. It does not address aliens’
right to counsel in criminal proceedings, the outcomes of which could potentially affect their
ability to remain in the United States under immigration law.5 The report also does not address
effective assistance of counsel.6
1 See, e.g., Kirk Semple, Youths Facing Deportation To Be Given Legal Counsel, N.Y. TIMES, June 6, 2014, available
at http://www.nytimes.com/2014/06/07/us/us-to-provide-lawyers-for-children-facing-deportation.html?_r=0 (reporting
that the federal government will award $2 million in grants to enroll “about 100 lawyers and paralegals” to represent
children in “immigration proceedings”); David Iaconangelo, NYC Unveils Pilot Program To Give Legal Defense to
Detained Immigrants Facing Deportation, LATIN TIMES, Nov. 7, 2013, available at http://www.latintimes.com/nyc-
unveils-pilot-program-give-legal-defense-detained-immigrants-facing-deportation-132676 (reporting that the New
York City Council appropriated $500,000 for a pilot project to provide pro bono counsel to indigent aliens).
2 See 8 U.S.C. §1229a.
3 See generally 8 U.S.C. §1225.
4 See, e.g., United States v. Barajas-Alvarado, 655 F.3 1077, 1088 (9th Cir. 2011) (“Barajas-Alvarado’s claim that he
was denied his right to counsel, is meritless on its face. Barajas-Alvarado himself identifies no legal basis for his claim
that non-admitted aliens who have not entered the United States have a right to representation ... The cases cited by
Barajas-Alvarado involve aliens in the more formal removal proceedings, where the regulations provide a right of
counsel, as compared to expedited removal proceedings, where they do not. ... Because non-admitted aliens are entitled
only to whatever process Congress provides, ... Barajas-Alvarado’s lack of representation in the removal proceeding
did not constitute a procedural error at all, let alone a due process violation.”).
5 See, e.g., INA §237(a)(2)(A)(ii), 8 U.S.C. §1227(a)(2)(A)(ii) (aliens who are convicted of two or more “crimes
involving moral turpitude”, not arising from a single scheme of criminal conduct, at any time after admission are
deportable); INA §240A(a), 8 U.S.C. §1229b(a) (cancellation of removal may not be granted to otherwise eligible
lawful permanent resident (LPR) aliens who have been convicted of “aggravated felonies”).
6 See generally CRS Report R41190, Ineffective Assistance of Counsel: Deportation Consequences of Guilty Pleas, by
Larry M. Eig; Thomas K. Ragland, The Right to Effective Assistance of Counsel in Immigration Proceedings, Am. Bar
Assoc., available at http://apps.americanbar.org/litigation/committees/immigration/articles/0609_ragland.html (last
accessed: June 13, 2014).
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Aliens’ Right to Counsel in Removal Proceedings
Right to Counsel at the Alien’s Expense
Aliens have generally been seen as having both constitutional and statutory rights to counsel at
their own expense in formal removal proceedings. The constitutional right is grounded in the
Fifth Amendment’s guarantee of due process, while the statutory right arises from the INA and
related provisions of immigration law. The regulations implementing these statutory provisions
further establish these and other rights pertaining to counsel in removal proceedings.
Fifth Amendment
The Fifth Amendment guarantees that “[n]o person ... shall be deprived of life, liberty, or
property” without due process of law.7 Aliens—including those who have entered or remained in
the United States in violation of federal immigration law—have been found to be encompassed
by the Fifth Amendment’s usage of “person,”8 and removal can be seen as implicating an alien’s
interest in liberty.9 Thus, courts have historically viewed access to counsel at one’s own expense
as required to ensure “fundamental fairness” in formal removal proceedings.10 For example, in
Leslie v. Attorney General, the U.S. Court of Appeals for the Third Circuit (Third Circuit) noted
that “although the Fifth Amendment does not mandate government-appointed counsel for aliens
at removal proceedings, it indisputably affords an alien the right to counsel of his or her own
choice at his or her own expense.”11 Similarly, in United States v. Charleswell, the Third Circuit
described aliens’ right to counsel at their own expense in formal removal proceedings as “so
fundamental to the proceeding’s fairness” that a denial of this right could “rise to the level of
fundamental unfairness.”12 Aliens’ Fifth Amendment right to counsel at their own expense has
also been seen as underlying the INA’s provisions granting aliens a right to counsel at their own
7 U.S. Const., amend. V.
8 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.”); Landon v. Plasencia, 459 U.S. 21 (1982) (recognizing certain aliens’ right
to due process in exclusion proceedings, a predecessor of contemporary removal proceedings that applied to aliens
seeking to enter the United States); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (recognizing aliens’ right
to due process in deportation proceedings, another predecessor of removal proceedings that applied to aliens within the
United States, regardless of whether they were lawfully present); Yamataya v. Fisher, 189 U.S. 86, 101 (1903) (aliens
who have “become subject in all respects to [the] jurisdiction [of the United States], and a part of its population,” are
entitled to due process in removal proceedings, even if they are “alleged to be illegally here”). In 1996, Congress
created a new unified proceeding known as removal, combining exclusion and deportation proceedings into one.
9 See, e.g., Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“[Because removal] visits a great hardship on the individual
and deprives him of the right to stay and live and work in this land of freedom[,] ... meticulous care must be exercised
lest the procedure by which [an alien] is deprived of that liberty not meet the essential standards of fairness.”) In certain
cases, removal proceedings also implicate a liberty interest in being free from detention because the INA requires that
aliens be held pending the issuance of a final order of removal, or pending the execution of such a removal order. See,
e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Ly v. Hansen, 351 F.3d 263, 269 (6th Cir. 2002).
10 See, e.g., Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (“The right to counsel in immigration proceedings
is rooted in the Due Process Clause.”); Dakane v. U.S. Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2005) (“It is
well established in this Circuit that an alien in civil deportation proceedings ... has the constitutional right under the
Fifth Amendment Due Process Clause ... to a fundamentally fair hearing.”); Borges v. Gonzales, 402 F.3d 398, 408 (3d
Cir. 2005) (“The Fifth Amendment entitles aliens to due process of law in deportation proceedings.”); Rosales v.
Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005) (“[D]ue process requires that
deportation hearings be fundamentally fair”); Brown v. Ashcroft, 360 F.3d 346, 350 (2d Cir. 2004) (“The right ... under
the Fifth Amendment to due process of law in deportation proceedings is well established.”).
11 611 F.3d 171, 181 (3d Cir. 2010).
12 456 F.3d 347, 360 (3d Cir. 2006).
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Aliens’ Right to Counsel in Removal Proceedings
expense,13 discussed below, although courts have generally treated actions that deprive aliens of
counsel at their own expenses as violating the statute, not the Constitution.14
Then-Attorney General Mukasey departed from this general view in his 2009 decision in Matter
of Compean, finding that aliens have no Fifth Amendment right to counsel at their own expense
in removal proceedings.15 This finding formed, in part, the basis for his articulation of a new
standard for assessing claims of ineffective assistance of counsel in removal proceedings,16 since
aliens cannot be said to have a constitutional right to effective assistance of counsel in removal
proceedings if they lack any constitutional right to counsel in these proceedings.17 However, this
decision was vacated later in 2009 by Attorney General Holder.18 Holder’s decision in Matter of
Compean is primarily concerned with the standards for assessing claims of ineffective assistance
of counsel in removal proceedings,19 but the vacatur apparently encompasses Mukasey’s findings
about aliens’ Fifth Amendment right to counsel at their own expense.
INA and Other Provisions of Immigration Law
Various provisions of the INA and other immigration-related statutes, as well as their
implementing regulations, provide aliens with a right to counsel at their own expense in removal
proceedings. Section 292 of the INA generally governs aliens’ right to counsel, and provides that,
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 ...
as he shall choose.20
However, other provisions of the INA or related statutes address the rights of particular categories
of aliens (e.g., children),21 or aliens’ rights in particular types of removal proceedings (e.g.,
13 See, e.g., Leslie, 611 F.3d 171, 180-181 (“[Aliens’] statutory and regulatory right to counsel is also derivative of the
due process right to a fundamentally fair hearing.”); Castaneda-Delgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975)
(characterizing the INA’s provisions regarding the right to counsel as “an integral part of the procedural due process to
which the alien is entitled”).
14 See “Right to Counsel at the Alien’s Expense: INA and Other Provisions of Immigration Law.”
15 24 I. & N. Dec. 710, 726 (A.G. 2009) (“The fact that aliens in removal proceedings have a statutory privilege to
retain counsel of their choosing at no expense to the Government ... does not change the constitutional analysis,
because a statutory privilege is not the same as a right to assistance of counsel, including Government-appointed
counsel, under the Constitution.”). Decisions by the Board of Immigration Appeals (BIA)—the highest administrative
tribunal for interpreting and applying immigration law—may be certified to the Attorney General for his review,
resulting in decisions such as that in Matter of Compean. See generally 8 C.F.R. §1003.1(h)(1)(i)-(iii).
16 24 I. & N. Dec. at 732-739.
17 Id. at 729 (“[T]here is no valid basis for finding a constitutional right to counsel in removal proceedings, and thus no
valid basis for recognizing a constitutional right to effective assistance of privately retained lawyers in such
proceedings.”).
18 25 I. & N. Dec. 1 (A.G. 2009).
19 Id. at 2 (directing the Executive Office for Immigration Review (EOIR) to initiate rulemaking procedures “as soon as
practicable” to determine the appropriate standard for assessing claims of ineffective assistance of counsel in removal
proceedings).
20 See 8 U.S.C. §1362.
21 See, e.g., 8 U.S.C. §1232(c)(5) (“The Secretary of Health and Human Services shall ensure, to the greatest extent
practicable and consistent with section 292 of the [INA] ..., that all unaccompanied alien children who are or have been
in the custody of the Secretary or the Secretary of Homeland Security, and who are not nationals or habitual residents
(continued...)
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Aliens’ Right to Counsel in Removal Proceedings
expedited removal under Section 238 of the INA).22 These statutory provisions also afford aliens
certain other rights as to counsel in removal proceedings. Specifically, they (1) impose
restrictions upon when hearings in removal proceedings may be held, so as to permit aliens the
opportunity to obtain counsel;23 (2) require that aliens against whom removal proceedings have
been initiated be furnished with lists of persons available for pro bono representation;24 and (3)
establish additional protections for classes of aliens who are seen as particularly “vulnerable”
(e.g., unaccompanied minors, “mentally incompetent” individuals).25 Many of these statutory
provisions describe aliens’ retention of counsel at their own expense as a “privilege.”26 However,
the implementing regulations are drafted so as to suggest that there is a legal right to counsel at
the alien’s expense,27 and numerous courts have construed the INA as establishing a statutory
right to counsel at the alien’s expense.28
(...continued)
of countries contiguous with the United States, have counsel to represent them in legal proceedings or matters and
protect them from mistreatment, exploitation, and trafficking.”); INA §240(b)(3), 8 U.S.C. §1229a(b)(3) (“If it is
impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney
General shall prescribe safeguards to protect the rights and privileges of the alien.”). Among other things, the
safeguards for “mentally incompetent” aliens (1) call for service of the Notice to Appear (NTA) initiating removal
proceedings upon near relatives, guardians, or friends of the alien, 8 C.F.R. §103.8(c)(2); 8 C.F.R. §236.2(a); (2) permit
attorneys, legal representatives and guardians, and family and friends of the alien to appear on the alien’s behalf in
removal proceedings, 8 C.F.R. §1240.4; and (3) bar immigration judges from accepting admissions of removability
from unrepresented respondents who are “incompetent” absent certain assistance from third parties, 8 C.F.R.
§1240.10(c).
22 See, e.g., INA §208(d)(4), 8 U.S.C. §1158(d)(4) (requiring that applicants for asylum be advised of the “privilege” of
being represented by counsel and given a list of persons who can provide pro bono representation); INA §238(b)(4)(B),
8 U.S.C. §1228(b)(4)(B) (providing that aliens convicted of aggravated felonies who are subject to expedited removal
under Section 238 of the INA shall “have the privilege of being represented (at no expense to the government) by such
counsel ... as the alien shall choose.”). Expedited removal under Section 238 is distinct from expedited removal under
Section 235. See supra note 4 and accompanying text.
23 See, e.g., INA §239(b)(1), 8 U.S.C. §1229(b)(1).
24 See, e.g., INA §239(b)(2), 8 U.S.C. §1229(b)(2) (general requirement); 8 C.F.R. §238.1(b)(2)(iv) (requirement as to
aliens convicted of aggravated felonies who are facing “expedited removal” under Section 238 of the INA).
25 See, e.g., 6 U.S.C. §279(b)(1)(A) (requiring the Office of Refugee Resettlement (ORR) at the Department of Health
and Human Services to develop a plan to “ensure that qualified and independent legal counsel is timely appointed to
represent the interests of each such child, consistent with the law regarding appointment of counsel that is in effect on
November 25, 2002”). Despite the reference to the “appointment” of counsel, this provision has not been construed to
require that unaccompanied alien children (UAC) receive counsel at the government’s expense because such
representation is to be “consistent with the law regarding appointment of counsel that is in effect on November 25,
2002,” and the INA at that time generally provided only for aliens’ right to counsel at their own expense. ORR sought
to meet this mandate by contracting with the Vera Institute of Justice in 2005 to develop and test ways to provide legal
representation to UAC. See Shani M. King, Alone and Unrepresented: A Call to Congress to Provide Counsel for
Unaccompanied Minors, 5 HARV. J. LEG. 332, 340 (2013). The Institute, in turn, oversees programs at 17 nonprofit
agencies that provide legal assistance to UAC throughout the country. Id. Among other things, these agencies make
presentations about legal rights at local detention facilities before UAC’s first court appearance, conduct individual
screenings to identify UAC’s legal needs and furnish information, and provide pro bono assistance and referrals. Id.
For more on the protections for “mentally incompetent” individuals, see supra note 21.
26 See, e.g., INA §208(d)(4), 8 U.S.C. §1158(d)(4); INA §292, 8 U.S.C. §1362. But see Castro-O’Ryan v. INS, 847
F.2d 1307, 1312 (9th Cir. 1982) (noting that the captions of some provisions refer to a “Right to Counsel”).
27 See, e.g., 8 C.F.R. §292.5(b) (“Whenever an examination is provided for in this chapter, the person involved shall
have the right to be represented by an attorney or representative.”); 8 C.F.R. §1240.10(a)(1) (“In a removal proceeding,
the immigration judge shall ... [a]dvise the respondent of his or her right to representation at no expense to the
government, by counsel of his or her choice.”).
28 See supra note 11; Castro-O’Ryan, 847 F.2d at 1312 (noting that the caption of Section 292 of the INA, as well as its
legislative history, “confirms that Congress wanted to confer a right”).
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Aliens’ Right to Counsel in Removal Proceedings
These and other courts have generally viewed aliens’ statutory right to counsel at their own
expense as satisfied if the immigration judge inquires whether the alien wishes counsel, gives any
alien wishing counsel a reasonable period of time in which to obtain it, and determines that any
waivers of this right are knowing and voluntary.29 On the other hand, violations of aliens’ right to
counsel at their own expense have been found in specific circumstances where (1) the alien was
not advised of his/her due process rights, including the right to counsel, in a language s/he could
understand;30 (2) the alien was transferred to a remote facility without notice to his/her attorney;31
(3) the government exercised “unexplained” haste in beginning removal proceedings;32 (4) the
alien was prevented from consulting with counsel prior to signing a voluntary departure form;33
(5) the alien was denied access to basic written legal materials;34 and (6) the alien was denied a
change of venue to allow the retention of counsel.35 Courts in some jurisdictions have, however,
found that violations of aliens’ statutory right to counsel at their own expense are not, in
themselves, grounds for reopening removal proceedings or otherwise permitting the alien to re-
litigate his/her removability or eligibility for relief from removal.36 Instead, courts in these
jurisdictions have generally required that aliens show that any violation of their statutory rights
was “prejudicial” in that the outcome of the proceeding could have been different absent the
violation.37 For example, in United States v. Reyes-Bonilla, the U.S. Court of Appeals for the
Ninth Circuit found that an alien was not entitled to have his conviction for violating 8 U.S.C.
§1326 (being a deported alien found in the United States without permission) overturned due to a
violation of his statutory rights because he could not show the requisite prejudice resulting from
such violation.38 In so finding, the Ninth Circuit noted that the immigration judge had failed to
provide Reyes-Bonilla the requisite notice of his rights—including his right to counsel at his own
expense—in a language he could understand during his removal proceedings. However, it did not
view this error as having affected the outcome of the proceeding because Reyes-Bonilla’s ability
to obtain relief from removal was “severely limited,” regardless of whether he had counsel, due to
his “prior convictions for aggravated felonies.”39
29 See, e.g., United States v. Ramos, 623 F.3d 672, 682 (9th Cir. 2010); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th
Cir. 2004).
30 See, e.g., United States v. Reyes-Bonilla, 671 F.3d 1036, 1046 (9th Cir. 2012); Ramos, 623 F.3d at 683.
31 See, e.g., Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 565 (9th Cir. 1990); Rios-Berrios v. INS, 776 F.2d 859,
863 (9th Cir. 1985). But see Committee of Central American Refugees v. INS, 682 F. Supp. 1055, 1065 (N.D. Cal.
1988) (transfer to a remote location does not, per se, violate due process absent an existing attorney-client relationship).
32 See Rios-Berrios, 776 F.2d at 863.
33 See Orantes-Hernandez, 919 F.2d at 565.
34 Id.
35 Id.
36 See generally Michael Kaufman, Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 STAN.
J. C.R. & C.L. 113, 133 n.133 (2008) (discussing variations in courts’ approaches on this issue).
37 See, e.g., Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010) (“The alien also must show prejudice, ‘which
means that the outcome of the proceeding may have been affected by the alleged violation.’”); Lapaix v. U.S. Att’y
Gen., 605 F.3d 1138, 1143 (11th Cir. 2012) (“To establish a due process violation, the petitioner must show that she
was deprived of liberty without due process of law and that the purported errors caused her substantial prejudice. ... To
show substantial prejudice, an alien must demonstrate that, in the absence of the alleged violations, the outcome of the
proceeding would have been different.”); Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) (“To prevail on a due
process claim, an alien must establish not only error, but prejudice.”); Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir.
2003) (“To demonstrate a violation of due process, an alien must demonstrate both a fundamental procedural error and
that the error resulted in prejudice.”).
38 See generally 671 F.3d 1036 (9th Cir. 2012).
39 Id. at 1049. In so finding, the Ninth Circuit expressly declined to adopt the view that any error is, per se, prejudicial,
(continued...)
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Aliens’ Right to Counsel in Removal Proceedings
Right to Counsel at the Government’s Expense
Aliens, as a category, have generally not been seen as having either constitutional or statutory
rights to counsel at the government’s expense in administrative removal proceedings. The Sixth
Amendment right to appointed counsel for indigent persons applies only in criminal proceedings,
not in civil proceedings such as removal. The INA and its implementing regulations also do not
purport to provide a right to counsel at the government’s expense for any aliens except those
subject to removal proceedings before the Alien Terrorist Removal Court, which has not been
used to date. Nonetheless, individual aliens could potentially be found to have a right to counsel
at the government’s expense based on the Fifth Amendment’s guarantee of due process or Section
504 of the Rehabilitation Act, depending upon the facts and circumstances of the case.
Sixth Amendment
Courts have repeatedly declined to find that indigent aliens have a Sixth Amendment right to
counsel at the government’s expense in removal proceedings.40 Those who would afford such a
right to aliens often emphasize the serious consequences that being removed from the United
States can have for aliens.41 They sometimes also note that immigration law has become
increasingly intertwined with criminal law (a phenomenon sometimes referred to as
“crimmigration”42).43 However, such arguments have consistently proved unavailing because the
Sixth Amendment explicitly refers to “the Assistance of Counsel” in “criminal proceedings,”44
and removal proceedings are civil in nature.45 Thus, courts have deemed it appropriate that aliens
subject to removal receive a different degree of protections than criminal defendants because
removal proceedings are civil, not criminal.46
(...continued)
instead requiring a showing of actual prejudice to the alien’s case. Id. at 1047-1048.
40 See, e.g., Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); Ramos, 623 F.3d at 682; Romero v. U.S. INS, 399
F.3d 109, 112 (2d Cir. 2005); Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004); Goonsuwan v. Ashcroft, 252
F.3d 383, 385 n.2 (5th Cir. 2001); Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001); Stroe v. INS, 256 F.3d 498, 500-
501 (7th Cir. 2001); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); Mejia-Rodriguez v. Reno, 178 F.3d
1139, 1146 (11th Cir. 1999); Mustata v. U.S. Dep’t of Justice [DOJ], 179 F.3d 1017, 1022 n.6 (6th Cir. 1999);
Gandarillas-Zambrana v. Board of Immigration Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995); Mantell v. U.S. DOJ, 798
F.2d 124, 127 (5th Cir. 1986).
41 See, e.g., Bridges, 326 U.S. at 154 (“Though deportation is not technically a criminal proceeding, it visits a great
hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That
deportation is a penalty—at times a most serious one—cannot be doubted.”). In addition, some aliens may be subject to
detention during removal proceedings or pending their removal. See INA §§235-236, 8 U.S.C. §§1225-1226.
42 See Juliet P. Stumpf, The Crimmigration Crisis: Immigrants, Crime, and the Sovereign Power, 56 AM. U. L. REV.
367 (2006).
43 See, e.g., Mark T. Fennell, Preserving Process in the Wake of Policy: The Need for Appointed Counsel in
Immigration Removal Proceedings, 23 NOTRE DAME J.L. ETHICS & PUB. POL’Y 261 (2009); Nimrod Pitsker, Due
Process for All: Applying Eldridge to Require Appointed Counsel for Asylum Seekers, 95 CAL. L. REV. 169 (2007).
44 U.S. Const., amend. VI; Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“[A]ny person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”).
45 INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine
eligibility to remain in this country, not to punish an unlawful entry.”); Abel v. United States, 362 U.S. 217, 237 (1960)
(noting the different procedural protections associated with criminal proceedings and removal proceedings).
46 Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013) (“A noncitizen in removal proceedings is not at all similarly
situated to a defendant in a federal criminal prosecution.”); Lopez-Mendoza, 468 U.S. at 1039 (“[A] deportation hearing
(continued...)
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Aliens’ Right to Counsel in Removal Proceedings
Aliens are, however, entitled to counsel at the government’s expense in criminal proceedings to
the same extent as citizens.47 This can include any criminal proceedings that may also result in a
judicial order of removal, although such orders are rarely sought.48
INA and Other Provisions of Immigration Law
The INA also generally does not purport to afford aliens a right to counsel at the government’s
expense in removal proceedings. Alone among the provisions of the INA, 8 U.S.C. Section 1534
states that “[a]ny alien financially unable to obtain counsel shall be entitled to have counsel
assigned to represent” him or her.49 However, this provision applies only to aliens removed by the
Alien Terrorist Removal Court, a forum which has not been used to date.50 All the other
provisions of the INA and their implementing regulations specify that aliens’ right to counsel
shall be “at no expense to the government.”51
In fact, some have suggested that the INA’s provisions regarding counsel “at no expense to the
government” bar the government from providing or otherwise paying for aliens’ counsel in
removal proceedings.52 Those making this argument seemingly construe the language about
aliens’ “privilege” to have counsel at their own expense to mean that the government may not pay
for counsel for them. However, an argument could be made that these provisions only restrict
aliens’ ability to claim an entitlement to counsel at the government’s expense, and do not preclude
the government from paying for aliens’ counsel pursuant to other provisions of law or at its
discretion.53 Indeed, as previously noted, the federal government—as well as certain local
(...continued)
is intended to provide a streamlined determination of eligibility to remain in this country, nothing more.”).
47 See, e.g., Padilla v. Kentucky, 559 U.S. 356, 388 (2010) (Scalia, J., dissenting on other grounds) (noting that Sixth
Amendment protections apply to “the accused,” a term which has been construed to include aliens).
48 Thomas Alexander Aleinikoff, David A. Martin, Hiroshi Motomura, & Maryellen Fullerton, IMMIGRATION AND
CITIZENSHIP: PROCESS AND POLICY 1210 (7th ed. 2012) (noting that judicial orders of removal are “rarely used today”).
For a court to order removal as part of a criminal proceeding, the U.S. Attorney must seek a removal order with the
concurrence of federal immigration authorities, and the court must agree to hear the removal case. See INA §238(c), 8
U.S.C. §1228(c).
49 INA §504(c)(1), 8 U.S.C. §1534(c)(1).
50 See, e.g., Andrew Becker, Terrorist Court Unused 16 Years after Creation, Apr. 12, 2012, available at
http://californiawatch.org/dailyreport/terrorist-court-unused-16-years-after-creation-14746.
51 See, e.g., INA §235(b)(1)(B)(iv), 8 U.S.C. §1225(b)(1)(B)(iv); INA §238(b)(4)(B), 8 U.S.C. §1228(b)(4)(B); INA
§240(b)(4)(A), 8 U.S.C. §1229a(b)(4)(A); INA §292, 8 U.S.C. §1362.
52 See, e.g., Escobar Ruiz v. INS, 787 F.2d 1294 (9th Cir. 1986) (holding that Section 292 of the INA does not bar the
payment of attorney fees, pursuant to the Equal Access to Justice Act (EAJA), to prevailing plaintiffs); Aguilera-
Enriquez v. INA, 516 F.2d 565, 568 (6th Cir. 1975) (noting that the immigration judge in this case had found that
Section 292 of the INA barred the provision of appointed counsel for the plaintiff); Funding of a Pilot Project for the
Representation of Aliens in Immigration Proceedings, memorandum from David A. Martin, General Counsel, INS, to
T. Alexander Aleinikoff, Executive Associate Commissioner, INS, Dec. 21, 1995 (reading 5 U.S.C. §3106, which
generally bars agencies from “employ[ing] an attorney or counsel for the conduct of litigation in which the United
States ... is a party,” in conjunction with INA §292, to bar the appointment of counsel for aliens in removal
proceedings) (copy on file with the author).
53 See Views Concerning Whether It Is Legally Permissible to Use Discretionary Funding for Representation of Aliens
in Immigration Proceedings, memorandum from David A. Martin, Principal Deputy General Counsel, Department of
Homeland Security, to Thomas J. Perrelli, Associate Attorney General, Department of Justice, Dec. 10, 2010 (copy on
file with the author).
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Aliens’ Right to Counsel in Removal Proceedings
governments—have recently adopted programs to provide counsel for at least certain aliens in
removal proceedings.54
Fifth Amendment
In contrast, at least four federal courts of appeals55 have opined that the Fifth Amendment’s
guarantee of due process could potentially require the appointment of counsel for individual
aliens who are incapable of representing themselves due to “age, ignorance, or mental capacity.”56
The earliest and most cited example of this appears to be the U.S. Court of Appeals for the Sixth
Circuit’s 1975 decision in Aguilera-Enriquez v. Immigration and Naturalization Service.57 There,
the court rejected the argument that Section 292 of the INA—which provides for aliens to be
represented by counsel in removal proceedings at their own expense—unconstitutionally deprived
aliens of their right to counsel. In so doing, the court indicated that it viewed the Due Process
Clause of the Fifth Amendment to require the appointment of counsel “[w]here an unrepresented
indigent alien would require counsel to present his position adequately to an immigration
judge.”58 However, it viewed the entitlement to appointed counsel as being determined on a case-
by-case basis, and, in this case, it concluded that there was “no defense for which a lawyer would
have helped.”59
There are certain contexts wherein courts have recognized a Fifth Amendment right to appointed
counsel for all persons subject to particular types of proceedings, regardless of their individual
circumstances.60 However, courts have, to date, declined to take this approach to aliens—or even
particular subcategories of aliens—facing removal proceedings.61 A federal district court in
54 See supra note 1 and accompanying text.
55 See Aguilera-Enriquez, 516 F.2d at 569 n.3; Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990); Ruiz v. INS, 787
F.2d 1294, 1297 n.3 (9th Cir. 1996), withdrawn on other grounds, 838 F.2d 1020 (9th Cir. 1998) (en banc); Barthold v.
INS, 517 F.2d 689, 690-91 (5th Cir. 1975).
56 Cf. Wade v. Mayo, 334 U.S. 672, 683-684 (1948) (“There are some individuals who, by reason of age, ignorance, or
mental capacity, are incapable of representing themselves in a prosecution of a relatively simple nature. ... Where such
incapacity is present, the refusal to appoint counsel is a denial of due process of law.”).
57 516 F.2d 565 (6th Cir. 1975).
58 Id. at 568 n.3.
59 Id.
60 Compare Vitek v. Jones, 445 U.S. 480 (1980) (plurality of the Court finding that due process required the
appointment of counsel for an indigent prisoner facing commitment to a mental institution); In re Gault, 387 U.S. 1, 41
(1966) (children in delinquency proceedings have a categorical right to appointed counsel under the Due Process
Clause); Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1360 (N.D. Ga. 2005) (categorical right to appointed
counsel for children in proceedings to terminate parental rights pursuant to the Due Process Clause of the Georgia
constitution, which tracks the language of the U.S. Constitution); and In re T.T., 599 N.Y.S.2d 892, 894 (App. Div.
1993) (same right under the U.S. Constitution) with Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26 (1981)
(establishing a presumption that “an indigent litigant has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty”). See also Parham v. J.R., 442 U.S. 584, 627-28 (1979) (Brennan, J., dissenting)
(“[C]hildhood is a particularly vulnerable time of life.”).
61 Chlomos v. INS, 516 F.2d 310, 314 (3d Cir. 1975) (considering whether the alien was actually prejudiced by the
alleged errors in his removal proceedings); Burquez v. INS, 513 F.2d 751, 755 (10th Cir. 1975) (same); Henriques v.
INS, 465 F.2d 119, 120 n.3 (2d Cir. 1972) (“[W]e can agree with, and follow, the majority in Argersinger and Gideon,
each involving the sixth amendment and criminal cases, without reaching a blanket rule that the fifth amendment
requires, as a matter of due process, counsel for indigent aliens in deportation cases, regardless of their nature.”),
Tupacyupanqui-Marin v. INS, 447 F.2d 603, 606 (7th Cir. 1971) (considering whether the alien was actually prejudiced
by the alleged violations of Due Process in his removal proceedings).
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Washington, for example, expressly rejected the argument that unaccompanied alien children
(UAC), as a class, have a due process right to appointed counsel in its 2002 decision Gonzalez
Machado v. Ashcroft.62 In so doing, the court indicated that the “[c]ase law does not demonstrate
... that the right to counsel is on an inevitable path of outward expansion,”63 a factor which the
court viewed as significant since the plaintiff would have to show that the precedents finding that
aliens have no right to counsel at the government’s expense in removal proceedings have been
“eroded” by subsequent decisions or “become anachronistic” in order to prevail in the face of the
government’s motion to dismiss the complaint.64
Indeed, to date, there does not appear to be any published decision in which a court has found that
the Due Process Clause requires the appointment of counsel for an individual alien.65
Rehabilitation Act
Section 504 of the Rehabilitation Act has also been construed to require the appointment of
“qualified representatives”—a term which includes (but is not limited to) legal counsel—for
aliens who are “mentally incompetent” to represent themselves in removal proceedings.66 Section
504 states, in relevant part, that no “qualified individual with a disability” may “be excluded from
participation in, be denied the benefits of, or be subjected to discrimination ... under any program
or activity conducted by any Executive agency,” 67 and has been construed to mean that agencies
cannot deny qualified individuals with disabilities any “reasonable accommodation” that they
might need in order to enjoy meaningful access to the benefits of public services.68 As used here,
62 Order Granting Motion to Dismiss, No. CS-01-0066-FVS (E.D. Wa. June 18, 2002) (copy on file with the author).
63 Id. at 17. See also Perez-Funez v. District Director, 619 F. Supp. 656 (C.D. Cal. 1985) (finding that the government’s
practices in obtaining voluntary departure agreements from UAC violated due process, but also noting that the “case
law clearly forecloses ... a finding” that UAC have a right to appointed counsel).
64 Order Granting Motion to Dismiss, supra note 62, at 13. Similarly, in his 2009 decision in Matter of Compean, then-
Attorney General Mukasey distinguished the potential loss of physical liberty associated with removal proceedings
from that in other proceedings wherein courts have found a categorical right to appointed counsel under the Due
Process Clause on the grounds that the loss of physical liberty is incidental to removal proceedings, rather than the
outcome of such proceedings. 24 I. & N. Dec. at 718 n.3 (“Although an alien may be detained during the course of
removal proceedings, he does not ‘lose his physical liberty’ based on the outcome of the proceeding.”). In so stating,
Attorney General Mukasey was apparently influenced by the “presumption”, established by the Supreme Court in
Lassiter, that “an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his
physical liberty.” See 452 U.S. at 27. While Mukasey’s decision here has been vacated, it was arguably vacated on
other grounds, and it is unclear that a court would necessarily adopt different reasoning as to the distinction between
removal proceedings and other proceedings wherein persons have been found to have a Fifth Amendment right to
appointed counsel.
65 See IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY, supra note 48, at1155 (“Research reveals no published
decision applying the test set forth in Aguilera-Enriquez to require government-paid counsel in a deportation or
removal proceeding, though many cases reiterate the fundamental fairness standard.”).
66 See Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034 (C.D. Cal. 2010). Initially, the court expressly declined to
address the merits of the plaintiffs’ claim that due process also requires the appointment of counsel for them. Id. at
1059. However, dicta in a subsequent decision suggest that the court may have viewed the plaintiffs as having a
“constitutional right to representation” at the government’s expense. See Franco-Gonzalez v. Holder, 828 F. Supp. 2d
1133, 1145 (C.D. Cal. 2011).
67 29 U.S.C. §794(a).
68 28 C.F.R. §35.130(b)(7); Alexander v. Choate, 469 U.S. 287, 300-301 n.21 (1985); Mark H. v. Hamamoto, 620 F.3d
1090, 1098 (9th Cir. 2010).
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Aliens’ Right to Counsel in Removal Proceedings
disability includes “a physical or mental impairment that substantially limits one or more major
life activities of such individual.” 69
In the litigation that gave rise to this finding, Franco-Gonzales v. Holder, the government
apparently did not contest that the plaintiffs—who included aliens found incompetent to stand
trial for criminal offenses—had established a prima facie case under Section 504.70 Instead, the
plaintiffs and the government disagreed over whether current statutory and regulatory protections,
discussed above, suffice to protect the rights of “mentally incompetent” aliens in removal
proceedings71 and, if not, what would constitute a reasonable accommodation. 72 The court agreed
with the plaintiffs that the existing statutory and regulatory protections are inadequate, in part,
because “near relatives” or “friends” acting as the alien’s “representatives” cannot be compelled
to appear in removal proceedings and are often unable to adequately represent the alien’s
interests.73 The court also agreed with the plaintiffs that the appointment of “qualified
representatives,” either pro bono or at the government’s expense, for the entirety of the
immigration proceedings constituted a reasonable accommodation. 74 In so finding, the court
expressly rejected the government’s argument that Section 504 is “only intended to level the
playing field and not to provide advantages to the disabled” on the grounds that an
accommodation which provides a preference can constitute a “reasonable accommodation” for
purposes of the Rehabilitation Act.75
In a 2010 decision, the Franco-Gonzales court adopted the plaintiffs’ proposed definition of a
qualified representative as a person (1) obligated to provide zealous representation; (2) subject to
sanction by the immigration courts for ineffective assistance; (3) free of any conflicts of interest;
(4) having adequate knowledge and information to provide representation at least as competent as
that provided by an alien detained pending removal proceedings with ample time, motivation, and
access to legal material; and (5) obligated to maintain the confidentiality of information.76
However, it did not directly address whether qualified representatives must be attorneys. A
subsequent decision, issued in 2011, clarified that qualified representatives can include not only
licensed attorneys but also law students or graduates who are directly supervised by retained
attorneys and “accredited representatives.”77 Accredited representatives are persons employed by
certain non-profit religious, charitable, social service, or similar organizations who have been
accredited by the Board of Immigration Appeals (BIA) and are effectively registered to practice
before the immigration judges and the BIA.78
69 42 U.S.C. §12102(1).
70 See 767 F. Supp. 2d at 1052.
71 Id. at 1052-1053. The defendants conceded that the protections required under existing law had not been provided
here. Id. 1053.
72 Id. at 1053-1056.
73 Id. at 1054.
74 Id. at 1058. The court expressly rejected the plaintiffs suggestion that counsel be appointed pursuant to the Criminal
Justice Act, 18 U.S.C. §2006A(a)(1)(D) and (I), on the grounds this provision contemplates the appointment of
criminal defense attorneys, and expertise in criminal law is not necessarily relevant to removal proceedings. Id. at 1058
n.20.
75 767 F. Supp. 2d at 1056.
76 Id. at 1058.
77 Franco-Gonzalez, 828 F. Supp. 2d at 1147.
78 8 C.F.R. §1292.1(a)(4).
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Aliens’ Right to Counsel in Removal Proceedings
In 2013, as a result of the Franco-Gonzales litigation, the Departments of Justice and Homeland
Security adopted a “nationwide policy” regarding unrepresented immigration detainees with
“serious mental disorders or conditions that may render them mentally incompetent to represent
themselves in immigration proceedings.” Among other things, this policy calls for procedures that
would make qualified representatives available to such individuals. 79
Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
79 Dep’t of Justice, Press Release, Department of Justice and the Department of Homeland Security Announce
Safeguards for Unrepresented Immigration Detainees with Serious Mental Disorders or Conditions, Apr. 22, 2013,
available at http://www.justice.gov/eoir/press/2013/SafeguardsUnrepresentedImmigrationDetainees.html. The
announcement of this policy coincided with the court’s issuance of an order permanently enjoining the government to
provide qualified representatives, “whether pro bono or at Defendants’ expense,” for the plaintiffs. See Franco-
Gonzalez v. Holder, No. CV 10-02211 DMG (DTBx), Partial Judgment and Permanent Injunction, at ¶¶ 2 and 6 (D.C.
Cal., Apr. 23, 2013) (copy on file with the author). For purposes of this order, representation must be provided for
appeals and custody hearings. Id. at ¶ 6.
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