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Immigration Law and Procedure
by Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr
Copyright 2012, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 2 INSTITUTIONS OF IMMIGRATION LAW
CHAPTER 4 Attorneys and Representatives/Fees/Ethics and Sanctions *
1-4 Immigration Law and Procedure § 4.01
§ 4.01 Right to Representation by Counsel
[1] Constitutional and Statutory Rights
The right to be represented by counsel is one of the most important elements of due process of law. n1 As noted below,
the Fifth Amendment's requirement of due process apparently supports this right, rather than the Sixth Amendment's assurance of counsel in criminal proceedings. n2 The right is mentioned in various places in the Immigration and Nationality Act (INA). n3 The main provision is INA § 292, which declares 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, authorized to practice in such
proceedings, as he shall choose. n4
Regulations amplify this statutory mandate, extending the right of representation to every case pending before the Department of Homeland Security (DHS) n5 whenever additional regulations require that an examination be held. In such
cases counsel may examine and cross-examine witnesses, introduce evidence, make objections, and submit briefs. n6 A
proviso to this regulation, added in 1980, specifies that this right of representation does not extend to an applicant for
admission in either primary or secondary inspection, unless the applicant is the focus of a criminal investigation and has
been taken into custody. n7
A general statute applicable to all federal agencies authorizes any attorney in good standing to represent others before
any federal agency upon filing a written declaration that he or she is currently qualified and is authorized to represent a
particular party. n8 Members of the bar in any state or territory thus may appear for persons concerned in any matters or
proceedings pending before the various federal agencies that deal with immigration matters. When they appear in such
matters or proceedings, all notices and communications are sent to them, in addition to any other service specifically
required by statute. n9 Such attorneys are then authorized to take any appropriate action on behalf of their clients. n10
While the DHS and Executive Office for Immigration Review allow attorneys who are admitted in any state to represent
others before them, some state bars are not so inclusive. An Arizona law, for example, specifies that immigration practice by an out-of-state lawyer is lawful only as long as the lawyer does not advise on Arizona law. Moreover, an
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1-4 Immigration Law and Procedure § 4.01
out-of-state lawyer practicing in Arizona must state his or her practice limitations in writing at the beginning of the case.
n11
Similarly, a 1993 legal opinion by the New Jersey Supreme Court acknowledged that out-of-state attorneys could represent clients before the Immigration and Naturalization Service (INS) in New Jersey, but held that they could not open
an office in New Jersey for that purpose. The opinion also claimed that an out-of-state immigration attorney could not
advertise in the telephone directory or news media, even if the advertisement clearly stated, "practice limited to immigration law." n12
A 1989 decision by the Maryland Court of Appeals has been interpreted by some to restrict an out-of-state lawyer's
right to practice immigration law in Maryland. n13 A close reading, however, indicates that the holding may be limited
to the facts of the case. n14 For many reasons an immigration lawyer may want to be licensed in the state(s) in which he
or she practices. Nevertheless, under federal constitutional law, a lawyer can practice immigration law in any state, provided he or she has not been suspended from practice before federal immigration agencies. n15 Attorneys have a right
of access to their clients that cannot be unreasonably restricted. n16 Representation of persons before the Board of Immigration Appeals (BIA) and DHS is discussed in § 4.02, below.
The Supreme Court has underscored the importance of the right to representation by counsel in a number of landmark
decisions. n17 While these emerged from criminal prosecutions, they may also have an impact on some administrative
proceedings.
While the right to representation by counsel is an important aspect of immigration proceedings, opinions are divided
regarding the constitutional dimensions of that right. The BIA has ruled that there is no Sixth Amendment right to counsel in removal proceedings, and that the failure to accord adequate opportunity to obtain counsel is merely a procedural
omission that does not offend due process unless it appears that the omission was prejudicial. n18 Most courts have
supported the BIA's view. n19 Some courts, however, have declared that even though the strictures of the Sixth
Amendment may not apply to removal proceedings, an effective deprivation of counsel would necessarily deviate from
Fifth Amendment due process requirements, without the need for a showing of prejudice. n20
The Second Circuit provided an important exception to the "prejudice" test in Montilla v. INS n21 and Waldron v. INS.
n22 Together Montilla and Waldron require a remand even without a showing of prejudice in instances where an agency has failed to follow its own regulations established to assure a noncitizen of rights derived from the Constitution or
federal statutes. n23 However, this exception to the prejudice test has limited application, pertaining mainly to issues of
right to counsel and egregious violations of due process. The Second Circuit has also limited the applicability of Montilla and Waldron. n24 Other requests for remand based on "lesser" violations require the noncitizen to show prejudice.
While other circuits have not uniformly embraced Montilla and Waldron, we agree with the Second Circuit's approach.
It guarantees essential constitutional and statutory rights, while limiting frivolous claims of procedural error.
The regulations require an immigration judge (IJ) to fully advise a noncitizen in removal proceedings of his or her right
to be represented by counsel. n25 The IJ's explanation must not be perfunctory, and he or she must make certain that the
noncitizen fully understands this important right. n26 The noncitizen also must be advised of the availability of free
legal services programs and furnished with a list of such programs. n27
The statute does not require that counsel be present in every case n28 and entitles the noncitizen only to the opportunity
to obtain counsel, at no expense to the government. n29 If, given a fair opportunity, he or she fails to procure counsel,
n30 or if his or her counsel has been given adequate notice and fails to appear, n31 the hearing may proceed without
counsel. In such situations the courts will scrutinize the record carefully to make certain that fundamental fairness was
accorded and that justice was done. n32
[2] Reasonable Opportunity to Exercise Right to Counsel
The right to representation by counsel is meaningless if the respondent does not have a reasonable opportunity to exercise it, whether because of improper influence or action by government officers, n33 insufficient notification of his or
her rights, n34 inadequate comprehension of the language, n35 or mental incapacity. n36 The courts will correct deviations from fundamental fairness in these respects, or those resulting from the failure to accord rights granted by the regulations. n37
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1-4 Immigration Law and Procedure § 4.01
In 1992 the INS settled a class action that challenged the Service's practices in arrest situations. The plaintiffs claimed
that the immigration agency routinely denied their requests to consult attorneys and coerced them into waiving their
rights. Under the terms of the settlement the INS agreed to give arrested noncitizens written notice of their rights and to
suspend interrogations while they consult with attorneys. The settlement applies to warrantless arrests for immigration
law violations. n38
A notice-of-rights form (Form I-826) explains to persons in custody why they have been arrested and the procedures
they face, and informs them of their rights. All persons arrested may be provided with this form, except for Salvadorans
and minors, who are covered by injunctions issued in other litigation. n39 Sometimes respondents, when apprised of
their right to counsel, elect "to go it alone and take [their] chances." n40 Like most valuable grants, the privilege of representation by counsel can be waived. A waiver occurs when a noncitizen is informed of his or her right and chooses to
proceed without counsel. n41 But such a waiver must be deliberate and not unwitting, and can be accomplished only by
one intelligently informed of his or her rights. n42 A noncitizen's waiver must not be tainted by coercion, n43 mental
incapacity, n44 or inadequate comprehension. n45
Courts have held that the right to counsel was not impaired because a noncitizen claimed that he or she was without
funds to employ counsel n46 or because his or her freedom of movement was restricted while in jail n47 or in military
service n48 or because the hearing was shifted (upon respondent's change of residence) to a place inconvenient for his
or her original counsel. n49
It should be noted that detention, particularly in remote locations, can severely restrict access to affordable or volunteer
lawyers. A 1992 study by the U.S. General Accounting Office (GAO) found that only twenty-two percent of immigration detainees had legal representation. n50 This percentage was even lower in remote locations. n51 According to the
Executive Office for Immigration Review, of all noncitizens whose immigration proceedings were completed between
fiscal years 2006 and 2010, the percentage represented by legal counsel ranged between thirty-five and forty-three. n52
As the number of detainees has risen, fewer detainees have had legal representation. According to a 2008 study,
eighty-four percent of immigrant detainees represented themselves pro se, meaning only sixteen percent were represented by legal counsel. n53 According to a 2004 American Bar Association report, only ten percent of people detained
by U.S. Immigration and Customs Enforcement (ICE) secure legal representation in their cases. n54
[3] Availability of Assigned Counsel for Indigents
INA § 292 specifies that representation by counsel shall be without expense to the government. Unlike the rule in
criminal cases, there is no requirement that an indigent noncitizen be furnished with counsel. n55 Repeated efforts to
establish a right to assigned counsel for indigents in removal proceedings have been unsuccessful. n56 Legal aid bureaus and bar associations offer free legal services to indigent noncitizens. n57 In some instances voluntary social agencies in the immigration field provide services to all who request them. Regulations require DHS officials and IJs to advise noncitizens in removal proceedings of the availability of free legal services programs, and to furnish noncitizens
with a list of such programs. n58
Although the federal Legal Services Corporation (LSC) funds many such programs, the INS concluded that advice as to
the availability of free legal services did not conflict with the statutory requirement that representation by counsel be
without expense to the government. n59 However, as part of the annual appropriations bill for the LSC, Congress traditionally enacts restrictions on what services legal aid attorneys funded by the LSC can actually provide to noncitizens.
n60 Among other things, LSC funding usually cannot be used unless the noncitizen: (1) is a permanent resident; (2) is
married to a U.S. citizen or is a parent or an unmarried child of a U.S. citizen and has filed an application for adjustment
of status; (3) is a refugee or asylee; (4) has been granted withholding of removal; or (5) was granted conditional entry
before April 1, 1980, under INA § 203(a)(7) because of a fear of persecution. n61 By contrast, LSC regulations and a
1986 statute provide legal assistance to H-2A agricultural workers regarding matters relating to wages, housing, transportation, and employment, even though they are ineligible for legal assistance in immigration matters. n62
Until 1996, organizations that received LSC funds could at least represent otherwise ineligible noncitizens as long as all
costs of such representation, including staff time, were funded from non-LSC sources. n63 In 1996, Congress eliminated even that possibility by prohibiting the grant of LSC funds "to any person or entity ... that provides legal assistance
for or on behalf of an alien, unless the alien is present in the United States" and is within one of the eligible categories
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described above. n64 The practical result is to prevent LSC-funded organizations from representing almost all noncitizens in removal proceedings, even if they use non-LSC funding that donors have specifically earmarked for that purpose.
A leading case analyzing the right to assigned counsel in removal hearings is Aguilera-Enriquez v. INS. n65
Aguilera-Enriquez, who had requested and been denied appointed counsel during a deportation hearing, challenged the
constitutionality of INA § 292. In a 2-1 decision, the court generally upheld the right of resident noncitizens to due process under the Fifth Amendment. The majority set forth the following test:
The test for whether due process requires the appointment of counsel for an indigent alien is whether, in a given case, the assistance of counsel would be necessary to provide "fundamental fairness--the
touchstone of due process."
...
In Petitioner's case the absence of counsel at his hearing before the Immigration Judge did not deprive his deportation proceeding of fundamental fairness. n66
The dissenting judge objected to the majority's case-by-case approach. The dissent questioned whether a reviewing
court can ever accurately determine what the record would have contained if the noncitizen had been represented by
counsel. The dissent argued that once the United States has admitted a noncitizen as a permanent resident, it is unfair to
remove him or her without upholding the noncitizen's due process right to counsel and, if need be, his or her unqualified
right to appointed counsel. n67
Significantly, both the majority and the dissenting opinions drew a strong distinction between the rights of legal resident
noncitizens and the limited rights afforded undocumented noncitizens. Commentators have generally supported a requirement of assigned counsel in at least certain removal cases, though they have differed as to where and how the line
should be drawn. n68
Even in the absence of a requirement that counsel be provided for indigent noncitizens, courts will examine all the circumstances to determine whether in a particular case the party was accorded due process by having a fair opportunity to
obtain counsel and to develop the law and the facts.
[4] Ineffective Assistance of Counsel
Fundamental fairness may be absent if privately retained counsel provides ineffective representation. n69 This issue
arises in relation to representation before the Immigration Court and in relation to criminal defense counsel who fails to
inform his or her client of the immigration consequences of a guilty plea. n70
According to some courts, the right to effective assistance of counsel in civil removal proceedings derives from the Fifth
Amendment due process guarantee of a full and fair hearing. n71 In January 2009, however, Attorney General Michael
Mukasey opined in Matter of Compean n72 that individuals in removal proceedings have no constitutional right to
counsel. He argued that a noncitizen has no constitutional right to reopen a removal case because counsel was ineffective. n73
Later in 2009 Attorney General Eric Holder vacated Attorney General Mukasey's Compean decision. n74 Attorney
General Holder held that because the issue of when to grant a motion to reopen immigration proceedings based on a
claim of ineffective assistance of counsel "is a matter of great importance," it should be resolved by notice-and-comment rulemaking. n75 In the interim, he directed the BIA and immigration judges to apply the
pre-Compean standards to all pending and future motions to reopen based upon ineffective assistance of counsel, regardless of when such motions were filed. n76 Finally, Attorney General Holder held that the BIA has discretion to
consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after a final order of removal was entered. n77 He left it up to the Board to determine the scope of its discretion. n78
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State statutes that require trial courts to warn criminal defendants about the possibility or probability of immigration
consequences trigger an independent right to due process under the Fifth Amendment, which parallels Attorney General
Holder's position in Matter of Compean. n79 However, traditionally collateral consequences of criminal convictions
based on guilty pleas, including immigration consequences, were generally exempted from Sixth Amendment protection.
Thus, by characterizing deportation as a collateral consequence, States could avoid reversal based on counsel's failure to
inform defendants of removal consequences. n80
In a 2010 landmark case, the Supreme Court held in Padilla v. Kentucky that failing to notify a noncitizen client about
removal consequences of pleading guilty or no contest may give rise to a claim of ineffective assistance of counsel. n81
The Padilla Court stated that "[d]eportation is an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." n82 Acknowledging the close
connection between immigration consequences and criminal convictions, Padilla removed the deportation (removal)
penalty from the direct/collateral consequences distinction commonly used as a threshold for ineffective assistance of
counsel claims. n83 Thus, the Supreme Court validated ineffective assistance challenges based on removal consequences, exposing such claims to scrutiny under the Strickland v. Washington standard. n84 As discussed in more detail below, lower courts are now defining the many subtle contours of how to apply Strickland in the context of removal cases
and how broadly to apply Padilla itself.
The Padilla Court expressly declined to base its holding on the distinction between direct and collateral consequences,
noting the difficulty of thus classifying removal. n85 Instead, the Supreme Court focused on the Strickland two-pronged
test for error and resulting prejudice in assessing counsel's assistance. The Supreme Court thus distinguished habeas
corpus as a vehicle to raise ineffective assistance under the Sixth Amendment from due process violations under the
Fifth Amendment in the form of failure to comply with state statutes that require general advisals about the possibility or
probability of immigration consequences. This distinction is important for many foreign nationals because habeas petitions are subject to short limitations periods in most jurisdictions. However, the Padilla Court also noted greater risks
for those who collaterally attack guilty pleas based on ineffective assistance of counsel due to the possibility of a less
favorable outcome on collateral attack. n86
Under the facts of Padilla, the Court found clear error in counsel's advice, and remanded to the Kentucky courts for
development of a record on prejudice because no lower court had ever reached this key element. The remand emphasizes that a claim of ineffective assistance of counsel will lead to scrutiny of prejudice under Strickland v. Washington.
This latter burden requires proof that "there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." n87 Although the Padilla Court found counsel ineffective, it noted
that Strickland's prejudice prong still presents a significant obstacle in guilty-plea situations due to the highly deferential
judicial scrutiny applied in assessing counsel's performance and the requirement of showing that refusing a plea bargain
in the particular case is a rational decision. n88
Prejudice may turn in part on compliance with state advisal statutes, even though there is a prohibition against statutes
considering counsel's assistance effective without scrutinizing actual advice. For example, Florida state courts have
wrestled with the question whether an admonishment that deportation "may" occur can establish prejudice where deportation is certain to occur, rather than simply possible. Substantial litigation has arisen on this issue before the state
courts in Florida, and the split of authority among the appellate courts has led to certification of this issue to the Florida
Supreme Court. n89
In the aftermath of Padilla, it is unclear what effect state statutes and state court advisals about the possibility or probability of immigration consequences have on curing the omission of criminal defense attorneys to provide their noncitizen clients with specific advice about immigration consequences. n90 For instance, the Washington Supreme Court held
that affirmative misadvice could not be cured by a plea agreement advisal noting possible immigration consequences.
n91 However, a Florida court held that the trial court's general warning of immigration consequences in accordance
with Florida Rule of Criminal Procedure 3.172(c)(8) could cure affirmative misadvice. n92 Similarly, the Rhode Island
Supreme Court held that a trial court advisal and signed plea agreement containing advisals on immigration consequences adequately notified a noncitizen of possible immigration effects, preventing the noncitizen from succeeding on
an ineffective assistance complaint. n93 By contrast, the Colorado Court of Appeals held that neither a plea agreement
nor a trial court's general advisals were sufficient to cure counsel's failure to give specific warning of immigration con-
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1-4 Immigration Law and Procedure § 4.01
sequences. n94 With no consensus on whether defense counsel's lack of specific advice or affirmative misadvice may be
cured by a plea agreement or court advisals, counsel must look to the relevant jurisdiction for guidance.
A foreign national's criminal defense attorney is now subject to a duty to investigate immigration status and a duty to
advise about relevant immigration consequences that are "succinct, clear, and explicit." n95 While the Padilla Court
recognized the complex nature of immigration law, it held that despite a lack of expertise in the specific area of law,
criminal counsel still have a clear duty to give correct advice where removal consequences are clear. n96 This was the
case in Padilla, where the controlled-substance conviction was clearly one making Padilla removable. n97 As to immigration consequences that are "not succinct and straightforward," an attorney need only advise his or her client of the
possibility of adverse immigration consequences. n98 This distinction--between cases in which deportation consequences are clear and therefore counsel's duty to advise is clear and cases in which consequences are unclear and therefore counsel is required only to inform defendants of the possibility of adverse immigration consequences--requires
state courts to create benchmarks to measure competence.
Padilla may apply retroactively. n99 While some decisions have not applied it retroactively, n100 others have either
assumed retroactivity or declared it. n101 The Ninth Circuit has agreed to apply Padilla retroactively and has also concluded that the removal ground for federal firearm offenses under Immigration and Nationality Act § 237(a)(2) is clear.
n102 This important case opines that non-aggravated felonies can have clear consequences, addresses the issue of clarity by assessing firearm offenses as having certain immigration consequences, and says that Padilla did not issue not a
new rule but an interpretation of Strickland that warrants retroactive application. Similar treatment may be warranted in
other jurisdictions, especially to the extent that practitioners probe the applicable measure for distinguishing clear consequences from unclear consequences and inform the lower courts of prevailing norms about defense counsel's duty to
advise which consequences are clear and which are unclear (given the specific counts pending as well as charge and
sentence bargains available).
Prosecutors are burdened with standing on higher moral ground, according to Padilla. Consequently, the lower courts
should expect prosecutors to negotiate in good faith to mitigate immigration consequences. Padilla endorsed "informed
consideration" by both defense attorneys and prosecutors, suggesting that "informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process." n103 Unless the immigration consequence is already manifest or the parties reach consensus on whether the immigration consequence alleged is imminent or speculative, a hearing for presentation of competing expert opinions on this primary issue of imminence or speculation should be anticipated. According to Padilla, all attorneys (including criminal defense attorneys)
must notify clients about the possible immigration consequences of a criminal conviction. As a practical matter, attorneys should always strive to provide complete, correct, and detailed notification of the immigration consequences of a
criminal plea bargain or conviction. n104
Courts have held that immigration authorities lack the power to adjudicate the validity of a state conviction underlying a
removal proceeding. n105 While exceptions to this rule developed to honor the intention of the parties to a plea agreement by shielding the defendant against the deportation/removal order when a defendant relied on the assertions of a
prosecutor promising no immigration consequences, these exceptions may not have survived the enactment of the
AEDPA and IIRAIRA. n106 Unless counsel can establish that these exceptions survived the enactments, IJs and the
BIA will limit themselves to a review of whether a noncitizen's conviction is "final" for removal purposes, and will not
take an interest in the details of criminal trials.
An immigration agency may sanction a practitioner who provides ineffective assistance to his or her client. See §
4.03[4][b], below.
[5] Reasonable Opportunity to Obtain Counsel
As noted in § 4.01[1], above, some authorities have declared that there is no Sixth Amendment right to counsel for a
respondent in removal proceedings, and that a failure to accord an adequate opportunity to obtain counsel is merely a
procedural omission, which does not offend due process unless it appears that the omission was prejudicial. n107 A few
courts have disputed this view, finding that due process is necessarily denied if a reasonable opportunity to obtain
counsel is not accorded. n108
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1-4 Immigration Law and Procedure § 4.01
Neither the statute nor the regulations attempt to regulate the fees that may be charged in immigration matters. This is a
matter to be settled between client and attorney. n109 However, an attorney who charges exorbitant fees may be subject
to discipline. n110
[6] Representation in Preliminary Investigations
The right to representation by counsel may not apply fully to preliminary investigations. n111 Consequently, a noncitizen's testimony at a preliminary interrogation at which he or she is unrepresented may be used at the subsequent hearing, n112 particularly when he or she is represented by counsel at the later hearing. n113 A person compelled to appear
is entitled to be accompanied, represented, and advised by counsel. n114 A similar right of representation will be accorded to a person who appears voluntarily and insists upon having his or her counsel present. However, counsel's function in such situations is advisory, and he or she generally will be denied the right to participate in the proceeding, except to advise his or her client, at this preliminary investigative stage. The exact limits of the right to be represented by
counsel at such preliminary inquiries doubtless will be further explored in the future.
[7] Representation in Agencies Other Than DHS
The foregoing discussion relates generally only to representation by attorneys before DHS, the Immigration Court, and
the BIA. The right to representation by counsel before other agencies may depend on the general statute previously
noted n115 and the rules and practices of such agencies. The Department of Labor recognizes the right to such representation. n116 Attorneys can, and often do, represent persons dealing with the Department of State. n117 Attorneys
also may represent persons submitting visa applications to U.S. consular offices overseas. However, the State Department leaves to the discretion of particular consular offices the extent to which an attorney may participate in a visa interview. n118 Attorneys representing noncitizens in foreign countries should exercise caution to avoid violating the
laws of such countries. n119
Legal Topics:
For related research and practice materials, see the following legal topics:
Immigration LawDuties & Rights of AliensLegal Representation
FOOTNOTES:
Footnote 1. Other discussions of this subject appear in LaJuana Davis, Reconsidering Remedies for Ensuring Competent Representation in Removal Proceedings, 58 Drake L. Rev. 123 (2009); Michael Kaufman, Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 Stan. J.C.R. & C.L. 113 (2008) ; John R. Mills, Kristen M.
Echemendia & Stephen Yale-Loehr, "Death is Different" and a Refugee's Right to Counsel, 42 Cornell Int'l L.J. 361
(2009); Elizabeth Glazer, Note, The Right to Appointed Counsel in Asylum Proceedings, 85 Colum. L. Rev. 1157
(1985); Note, INS Transfer Policy: Interference with Detained Aliens' Due Process Right to Retain Counsel, 100 Harv.
L. Rev. 2001 (1987); see also Irving A. Appleman, Right to Counsel in Deportation Proceedings, 14 San Diego L. Rev.
130 (1976); William Haney, Comment, Deportation and the Right to Counsel, 11 Harv. Int'l L.J. 177 (1970).
Footnote 2. Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 240 (2d Cir. 1992) (claim of ineffective assistance of
counsel rejected, because noncitizen "has not demonstrated either incompetent performance by his attorneys or resultant
prejudice to his case"); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986) (any right to counsel in deportation proceedings must be grounded in the Fifth Amendment due process guarantee); Rios-Berrios v. INS, 776 F.2d
859, 862 (9th Cir. 1985) (while Sixth Amendment guarantee of counsel applies only to criminal cases, "due process
mandates that he is entitled to counsel of his own choice at his own expense"); cf. Ukrainian-American Bar Ass'n v.
Baker, 893 F.2d 1374 (D.C. Cir. 1990) (bar association has no right to compel access by its members to potential clients). See generally infra notes 18-20 and accompanying text.
Footnote 3. E.g., INA § 238(b)(4)(B), 8 U.S.C. § 1228(b)(4)(B); INA § 239(a)(1)(E), 8 U.S.C. § 1229(a)(1)(E);
INA § 240(b)(4)(A), 8 U.S.C. §1229a(b)(4)(A); INA § 292, 8 U.S.C. § 1362.
Footnote 4. 8 U.S.C. § 1362.
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Footnote 5. The Immigration and Naturalization Service (INS), an agency of the Department of Justice, was formally dissolved as of March 1, 2003. Its functions and authority were allocated primarily to the Department of Homeland Security (DHS). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135; see also Stanley Mailman & Stephen Yale-Loehr, Immigration in a Homeland Security Regime, N.Y.L.J., Dec. 23, 2002, at 3, reprinted at 8
Bender's Immigr. Bull. 1 (Jan. 1, 2003). Within DHS, the former INS functions relating to such immigration benefits
and services as the processing of visa petitions and applications for adjustment of status and naturalization were allocated to the bureau of Citizenship and Immigration Services (USCIS). See Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003) (amending various parts of 8 C.F.R., triggering the
transfer of functions, and allocating them within DHS agencies). In discussing current functions, we usually refer to the
government, the immigration agency, the agency, the DHS, or the USCIS, even though the INS initiated the underlying
regulations or other action. Where it seems important to indicate the earlier source of the action as the INS, the text so
states.
Footnote 6. 8 C.F.R. §§ 292.5(b), 1292.5(b).
Footnote 7. 8 C.F.R. §§ 292.5(b), 1292.5(b).
Footnote 8. 5 U.S.C. § 500(b).
Footnote 9. 5 U.S.C. § 500(f).
Footnote 10. Guerrero de Nodahl v. INS, 407 F.2d 1405, 1407 (9th Cir. 1969) (orally waived reading of charges
in presence of client); Wa v. INS, 407 F.2d 854, 854-55 (1st Cir. 1969) (orally waived appeal in presence of client).
Footnote 11. Ariz. Rev. Stat. Ann. § 12-2702(E) (1993).
Footnote 12. U.P.L. Opinion No. 27, N.J. Sup. Ct. (1993).
Footnote 13.
Kennedy v. Bar Ass'n of Montgomery County, 316 Md. 646, 561 A.2d 200 (1989) .
Footnote 14. See generally Bruce Hake, Counterpoint: State Bar Admission is Not Required to Practice Immigration Law In a State, 12 AILA Monthly Mailing 685 (Sept. 1993).
Footnote 15. Cf. Sperry v. Florida, 373 U.S. 379, 137 U.S.P.Q. 578 (1963) (holding that under the Supremacy
Clause of the U.S. Constitution, the Florida bar could not prohibit an out-of-state patent lawyer from practicing patent
law in Florida).
Footnote 16.
Jean v. Nelson, 727 F.2d 957, 984 (11th Cir. 1984) , aff'd on other grounds, 472 U.S. 846 (1985) .
Footnote 17. Miranda v. Arizona, 384 U.S. 436 (1966) ; Escobedo v. Illinois, 378 U.S. 478 (1964) ; Massiah v.
United States, 377 U.S. 201 (1964) .
Footnote 18. Matter of Santos, 19 I. & N. Dec. 105, 108 (BIA 1984) (noncitizen in custody allowed one day to
obtain counsel, then proceeded without counsel and admitted factual allegation of order to show cause).
Footnote 19. See, e.g., United States v. Luna, 436 F.3d 312 (1st Cir. 2006) (finding no prejudice against petitioner); United States v. Loaisiga, 104 F.3d 484, 487 (1st Cir. 1997) ("absent prejudice, a proceeding cannot be
deemed fundamentally unfair"); United States v. Fares, 978 F.2d 52, 57 (2d Cir. 1992) (collateral attacks on deportation orders require positive proof of fundamental unfairness); Saleh v. United States Dep't of Justice, 962 F.2d 234,
241 (2d Cir. 1992) (claim of ineffective assistance of counsel rejected because noncitizen "has not demonstrated either
incompetent performance by his attorneys or resultant prejudice to his case"); Baires v. INS, 856 F.2d 89, 91 (9th Cir.
1988) (noting the "critical role of counsel," court held that right to counsel was violated under the facts by denial of
continuance and change of venue); Castro-O'Ryan v. INS, 847 F.2d 1307, 1313 (9th Cir. 1988) ("Castro's laconic answer to Judge Nail was not an intelligent, voluntary waiver of counsel. The opportunity to obtain counsel was prevented."); Delgado-Corea v. INS, 804 F.2d 261, 263 (4th Cir. 1986) (absent showing of prejudice, there was no due process denial when respondents waived counsel after being given wrong list of organizations available for free legal services); Rios-Berrios v. INS, 776 F.2d 859, 863-64 (9th Cir. 1985) (court will take close look at claims that due process
was denied, "especially where so fundamental a question as right to counsel is concerned"); see also United States v.
Campos Ascencio, 822 F.2d 506, 510 (5th Cir. 1987) (conviction for re-entry after deportation reversed, and case remanded to district court to determine whether there had been a prejudicial deprivation of the statutory right to counsel);
United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979) (agency's violation of own regulations does not invalidate proceedings unless (a) regulation serves purpose of benefit to noncitizen, and (b) violation of regulation prejudices
Page 9
1-4 Immigration Law and Procedure § 4.01
the interests of the noncitizen); United States v. Jimenez, 921 F. Supp. 1054, 1057 (S.D.N.Y. 1995) ("no waiver is valid
if extracted upon an official threat of imprisonment"; although the deportation hearing was procedurally infirm, the errors did not prejudice noncitizen).
Footnote 20. Colindres-Aguilar v. INS, 819 F.2d 259, 262 (9th Cir. 1987) (right to counsel in deportation proceeding is guaranteed by due process; court finds it unnecessary to decide whether omission of opportunity for counsel
must be prejudicial, as failure to make proper inquiry whether respondent wished to proceed without counsel was prejudicial, because counsel would have been valuable in the case); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir.
1975) (finding abuse of discretion in unreasonably denying a continuance to secure counsel); Jiang v. Houseman, 904
F. Supp. 971, 979 (D. Minn. 1995) ("the critical factor is not the quantity of continuances granted, but the adequacy of
the postponement afforded"). Possible impairments of right to counsel by transfer of noncitizens to remote places of
confinement are discussed infra in § 4.01[2]. An additional recognition of that right in removal proceedings appears in
INA § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A). Implementing regulations are in 8 C.F.R. Parts 292 and 1292. Additional discussions of the statutory and constitutional right to representation by counsel appear infra in § 72.02[2][g].
Footnote 21. 926 F.2d 162, 168 (2d Cir. 1991) (a noncitizen claiming that the INS failed to adhere to its regulations regarding the right to counsel in removal proceedings was not required to make a showing of prejudice, but only to
show that the regulations were for the noncitizen's benefit and were not followed).
Footnote 22. 17 F.3d 511, 518 (2d Cir. 1994) ("[W]hen a regulation is promulgated to protect a fundamental
right derived from the Constitution or a federal statute, and the INS fails to adhere to it, the challenged deportation proceeding is invalid and a remand to the agency is required." However, where an immigration regulation does not affect
such a right, a noncitizen must show prejudice.) (citing Montilla).
Footnote 23.
Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994) .
Footnote 24. Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2007) (holding that Montilla and Waldron do not apply to
noncitizen who is inadmissible for security reasons); United States v. Ferreira-Plasencia, 229 F.3d 1136 (2d Cir.
2000) (limiting Montilla to noncollateral attacks); Hidalgo-Disla v. INS, 52 F.3d 444 (2d Cir. 1995) (immigration
judge did not act improperly in moving forward even though petitioner did not expressly waive his right to representation, as IJ had warned petitioner multiple times and granted two previous hearing adjournments).
Footnote 25. 8 C.F.R. § 1240.10(a)(1).
Footnote 26.
Handlovits v. Adcock, 80 F. Supp. 425, 428 (E.D. Mich. 1948) .
Footnote 27. See infra notes 57-58 and accompanying text. The regulations concerning the criteria for listing free
legal services are at 8 C.F.R. §§ 1003.61-1003.65. See also American Bar Ass'n, Board of Immigration Appeals Accreditation and Entering Immigration Appearances (1995) (guide to gaining and maintaining BIA recognition for nonprofit organizations and representative accreditations for their nonlawyer staff),
http://www.americanbar.org/content/dam/aba/migrated/Immigration/PublicDocuments/bia_order_form.pdf-2011-04-01
(last visited Dec. 1, 2011).
Footnote 28. Prassinos v. District Director, 193 F. Supp. 416, 419 (N.D. Ohio 1960), aff'd per curiam, 289 F.2d
490 (6th Cir. 1961).
Footnote 29. INA § 292, 8 U.S.C. § 1362; Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985) ; see also
Wlodinger v. Reimer, 103 F.2d 435 (2d Cir. 1939) (finding sufficient opportunity to have counsel present).
Footnote 30. Ramirez v. INS, 550 F.2d 560, 565 (9th Cir. 1977) ; Bisaillon v. Hogan, 257 F.2d 435 (9th Cir.
1958) ; Madokoro v. Del Guercio, 160 F.2d 164 (9th Cir. 1947) ; Wlodinger v. Reimer, 103 F.2d 435 (2d Cir. 1939) ;
Ciccerelli v. Curran, 12 F.2d 394 (2d Cir. 1926) ; Barrese v. Ryan, 189 F. Supp. 449 (D. Conn. 1960) ; Matter of
Madrigal-Calvo, 21 I. & N. Dec. 323 (BIA 1996).
Footnote 31. Van Hoven v. INS, 57 F.3d 1079 (9th Cir. 1995) (absence of counsel did not prejudice petitioner);
Giaimo v. Pederson, 289 F.2d 483 (6th Cir. 1961) (noncitizen had consulted counsel who did not appear at hearing,
apparently because place of confinement changed; noncitizen stated he wished to go ahead without counsel, was represented by counsel before BIA); United States v. Heikkinen, 240 F.2d 94 (7th Cir. 1957) (counsel refused to attend
hearing at new place, to which it was transferred upon respondent's change of address), rev'd on other grounds, 355
U.S. 273 (1958); Dengeleski v. Tillinghast, 65 F.2d 440 (1st Cir. 1933) (noncitizen had requested counsel to appear,
but he did not come); Weinbrand v. Prentis, 4 F.2d 778 (6th Cir. 1925) (counsel notified, but did not attend); Gould
Page 10
1-4 Immigration Law and Procedure § 4.01
v. Uhl, 6 F. Supp. 696 (S.D.N.Y. 1934) (counsel refused to attend hearing unless it was postponed until after respondent
had completed jail sentence).
Footnote 32. Palma v. INS, 318 F.2d 645 (6th Cir. 1963) (waiver intelligent; alleged procedural infirmities could
not be challenged twenty-five years later); Giaimo v. Pederson, 289 F.2d 483 (6th Cir. 1961) (counsel waived at hearing, represented by counsel before BIA); Van Den Berg v. Lehmann, 261 F.2d 828 (6th Cir. 1958) (insufficient facts to
determine whether there was reasonable opportunity to obtain counsel); Madokoro v. Del Guercio, 160 F.2d 164 (9th
Cir. 1947) (facts admitted); Wlodinger v. Reimer, 103 F.2d 435 (2d Cir. 1939) (procedure fair); Dengeleski v.
Tillinghast, 65 F.2d 440 (1st Cir. 1933) (same); Prassinos v. District Director, 193 F. Supp. 416, 419 (N.D. Ohio 1960)
aff'd per curiam, 289 F.2d 490 (6th Cir. 1961) (clearly deportable); In re Raimondi, 126 F. Supp. 390 (N.D. Cal. 1954)
(deportability undisputed).
Footnote 33. Singh v. Waters, 87 F.3d 346 (9th Cir. 1996) (unlawful deportation following a stay of deportation,
INS withheld noncitizen's file from counsel); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) ("Reliance by the
BIA on [former] 8 C.F.R. § 242.13 and its limitation of one continuance for the purpose of securing representation, on
the facts of this case, makes a mockery of the clear statutory mandate that a person in petitioner's position has the right
to counsel of his own choice."); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975) (improper refusal of further
continuance to obtain counsel); Chlomos v. United States Dep't of Justice, 516 F.2d 310 (3d Cir. 1975) (improper denial of continuance to obtain counsel unduly curtailed privilege of representation); cf. Ungar v. Sarafite, 376 U.S. 575,
589 (1964) ("a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right
to defend with counsel an empty formality"); Committee on Central American Refugees v. INS, 795 F.2d 1434, 1439
(9th Cir. 1986) , amended, 807 F.2d 769 (9th Cir. 1987) (court refused to restrain transfer of unrepresented noncitizens
to remote areas where they might experience difficulty in obtaining competent counsel; after reviewing authorities,
court indicated that result might be different if such transfer affected due process rights by impairing an "established,
on-going attorney-client relationship"); Jiang v. Houseman, 904 F. Supp. 971 (D. Minn. 1995) (no need to show prejudice where noncitizen is a minor who does not speak English, unable to make an intelligent waiver of right to counsel;
at issue was IJ's failure to provide a reasonable opportunity for the retention of counsel); Committee of Central American Refugees v. INS, 682 F. Supp. 1055 (N.D. Cal. 1988) (mere disparity between lawyers available at transferee detention facilities, as opposed to lawyers available in area from which the noncitizens were transferred, did not in itself constitute a violation of due process justifying interference with Attorney General's discretion in selecting place of detention).
Footnote 34. Reyes-Palacios v. INS, 836 F.2d 1154, 1155 (9th Cir. 1988) (emphasizes that importance of counsel
in asylum case "can neither be overemphasized nor ignored"; record does not "reflect the care INS must exercise to
protect the alien's right to counsel"; IJ failed to adequately inquire whether there was a waiver or noncitizen should be
given more time to obtain counsel); cf. Delgado-Corea v. INS, 804 F.2d 261 (4th Cir. 1986) (waiver of counsel effective even though respondents were furnished with the wrong list of organizations available to provide free legal services).
Footnote 35. Van Den Berg v. Lehmann, 261 F.2d 828 (6th Cir. 1958) ; Jiang v. Houseman, 904 F. Supp. 971
(D. Minn. 1995) (same as Molaire, infra); Molaire v. Smith, 743 F. Supp. 839 (S.D. Fla. 1990) (petitioner was a minor
who did not speak English and was unfamiliar with the U.S. legal system and the nature and purpose of the hearing;
proceedings were instituted swiftly, making it impossible for him to have intelligently and knowingly waived his right
to counsel); Castro-Louzan v. Zimmerman, 94 F. Supp. 22 (E.D. Pa. 1950) .
Footnote 36. United States ex rel. Shaw v. Van De Mark, 3 F. Supp. 101 (W.D.N.Y. 1933) ; In re Osterloh, 34
F.2d 223 (S.D. Tex. 1929) ; United States ex rel. Dioguardi v. Flynn, 15 F.2d 576 (W.D.N.Y. 1926) ; Matter of H-, 6
I. & N. Dec. 358 (BIA 1954) (rights of a mental incompetent amply protected when his wife and counsel were present at
the hearing and he himself testified).
Footnote 37. For instance, under the BIA framework, immigration judges will assess any indicia of incompetency
and provide appropriate safeguards. Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011).
Footnote 38. Lopez v. INS, No. CV 78-1912-WMB (C.D. Cal. Aug. 20, 1992), reported at 70 Interpreter Releases
151 (Feb. 1, 1993); 69 Interpreter Releases 1092 (Sept. 4, 1992).
Footnote 39. See Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) (Salvadorans); Perez-Funez
v. District Director, 619 F. Supp. 656 (C.D. Cal. 1985) (minors).
Page 11
1-4 Immigration Law and Procedure § 4.01
Footnote 40. In re Ellis, 144 F. Supp. 448, 449 (N.D.N.Y. 1956) , aff'd, 238 F.2d 235 (2d Cir. 1956) ; see
Faretta v. California, 422 U.S. 806 (1975) (criminal case; defendant has constitutional right to represent self and to reject court-appointed counsel).
Footnote 41. Poy v. Johnson, 273 U.S. 352 (1927) (waiver of privilege of having friend or relative present);
United States v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995) ("mere inability to obtain counsel does not constitute
a violation of due process"; waiver granted knowingly); Farrokhi v. INS, 900 F.2d 697, 701 (4th Cir. 1990) ("explicitly waived his right to counsel"); Ramirez v. INS, 550 F.2d 560, 565 (9th Cir. 1977) ("waiver of counsel eliminates any
basis for complaint"); Ballenilla-Gonzalez v. INS, 546 F.2d 515 (2d Cir. 1976) (waiver upheld even though under
mistaken impression of law, particularly since no showing of basis for changing the outcome); Barthold v. INS, 517
F.2d 689 (5th Cir. 1975) (informed that government would not provide counsel, noncitizen elected to "continue without
an attorney"); Strantzalis v. INS, 465 F.2d 1016 (3d Cir. 1972) (spoke little English, but declined counsel and understanding of questions and correctness of answers not disputed); Giaimo v. Pederson, 289 F.2d 483 (6th Cir. 1961)
(noncitizen specifically waived right to counsel after being advised of privilege and given an opportunity to procure
counsel); Dentico v. Esperdy, 280 F.2d 71 (2d Cir. 1960) (where right to representation clearly explained, waiver was
intelligent despite noncitizen's poor educational level); DeSouza v. Barber, 263 F.2d 470, 476-77 (9th Cir. 1959)
(waiver by twenty-year-old not invalid).
Footnote 42. Miranda v. Arizona, 384 U.S. 436, 444, 475 (1966) (heavy burden on government in criminal case
to show waiver made "voluntarily, knowingly and intelligently"); Delgado-Corea v. INS, 804 F.2d 261 (4th Cir. 1986)
(no prejudice when counsel was waived by respondents who had been given wrong list of organizations available for
free legal services); Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (due process not denied if noncitizen elects to proceed without counsel, if there is no showing of prejudice); Cobourne v. INS, 779 F.2d 1564 (11th Cir. 1986) (waiver
of right to counsel need not always be express; it may be inferred from the acts of the applicant); Rios-Berrios v. INS,
776 F.2d 859, 863 (9th Cir. 1985) ("The record demonstrates that the immigration judge proceeded instantly to take
evidence, an action that would intimidate an alien appearing before him, particularly after the chilling warning that the
hearing would proceed and that no further continuances would be granted. We will not hear the INS argue waiver on the
facts of this record."); Attoh v. INS, 606 F.2d 1273, 1277 (D.C. Cir. 1979) ("no actual explanation of his right to retain
a lawyer seems to have been given. And at the hearing this error was if anything compounded."); Partible v. INS, 600
F.2d 1094, 1096 (5th Cir. 1979) (waived right to counsel "without being provided with any understanding by the immigration judge of the complexity of her dilemma and without any awareness of the cogent legal arguments that could
have been made on her behalf"); Rose v. Woolwine, 344 F.2d 993 (4th Cir. 1965) (although noncitizen elected to be
represented by travel agent, rights prejudiced by absence of counsel) (citing this treatise); Van Den Berg v. Lehmann,
261 F.2d 828 (6th Cir. 1958) (noncitizen did not understand, speak, or read English, had never been represented by
counsel of his own choice, and had no intelligent, reasonable opportunity to explain circumstances); see also United
States v. Jimenez, 921 F. Supp. 1054, 1057 (S.D.N.Y. 1995) ("no waiver is valid if extracted upon an official threat of
imprisonment"; although deportation hearing was procedurally infirm, errors did not prejudice noncitizen); Jiang v.
Houseman, 904 F. Supp. 971 (D. Minn. 1995) (no need to show prejudice; noncitizen, a minor who did not speak English, unable to make an intelligent waiver of right to counsel; at issue was IJ's failure to provide a reasonable opportunity to obtain counsel); Orantes-Hernandez v. Smith, 541 F. Supp. 351, 374 (C.D. Cal. 1982) (waiver of right to hearing
and to apply for voluntary departure); Matter of Santos, 19 I. & N. Dec. 105 (BIA 1984) (waiver voluntary, knowing,
and intelligent even though IJ allowed noncitizen only one day to find counsel) (citing this treatise).
Footnote 43. Roux v. Comm'r, 203 F. 413 (9th Cir. 1913) (improperly induced not to engage counsel); Bosny v.
Williams, 185 F. 598 (S.D.N.Y. 1911) (improper persuasion and intimidation); cf. Ackermann v. United States, 340
U.S. 193 (1950) (advice deemed not improper); Percas v. Karnuth, 28 F. Supp. 597 (W.D.N.Y. 1939) (same).
Footnote 44. United States ex rel. Shaw v. Van De Mark, 3 F. Supp. 101 (W.D.N.Y. 1933) (court sustained writ of
habeas corpus because defendant was insane and without counsel, friend, or relative present at deportation hearing); In
re Osterloh, 34 F.2d 223 (S.D. Tex. 1929) (petitioner released because at time of hearing she was mentally incompetent
and had no counsel, friend, or relative present); United States ex rel. Dioguardi v. Flynn, 15 F.2d 576 (W.D.N.Y. 1926)
(no fair hearing because medical evidence regarding mental disability was not admitted); cf. Matter of H-, 6 I. & N.
Dec. 358 (BIA 1954) (proceedings substantially complied with deportation laws and regulations because despite
noncitizen's mental incapacity, he had adequate assistance of his wife and counsel).
Footnote 45. Dentico v. Esperdy, 280 F.2d 71 (2d Cir. 1960) (waiver was intelligent, despite noncitizen's poor
educational level); Van Den Berg v. Lehmann, 261 F.2d 828 (6th Cir. 1958) (noncitizen who did not understand,
speak, or read English was not given reasonable opportunity to be represented by counsel).
Page 12
1-4 Immigration Law and Procedure § 4.01
Footnote 46. Alves v. Shaughnessy, 107 F. Supp. 443, 445 (S.D.N.Y. 1952) (deportation hearing valid though
noncitizen not represented by counsel due to lack of funds).
Footnote 47. Madokoro v. Del Guercio, 160 F.2d 164 (9th Cir. 1947) (funds or counsel not readily available in
internment camp); Ciccerelli v. Curran, 12 F.2d 394, 395-96 (2d Cir. 1926) (hearing taking place in prison not unfair);
In re Raimondi, 126 F. Supp. 390 (N.D. Cal. 1954) (hearing valid in McNeil Island, Wash., prison though affordable
counsel was located in San Francisco); Gould v. Uhl, 6 F. Supp. 696 (S.D.N.Y. 1934) (counsel refused to attend hearing in jail); see also Bilokumsky v. Tod, 263 U.S. 149, 156 (1923) ; Giaimo v. Pederson, 289 F.2d 483 (6th Cir. 1961)
(counsel consulted but did not attend hearing located in jail, apparently because place of confinement shifted);
Wlodinger v. Reimer, 103 F.2d 435 (2d Cir. 1939) ; Dengeleski v. Tillinghast, 65 F.2d 440 (1st Cir. 1933) .
Footnote 48.
Alves v. Shaughnessy, 107 F. Supp. 443 (S.D.N.Y. 1952) .
Footnote 49. Giaimo v. Pederson, 289 F.2d 483 (6th Cir. 1961) ; United States v. Heikkinen, 240 F.2d 94 (7th
Cir. 1957) , rev'd on other grounds, 355 U.S. 273 (1958) ; cf. Committee on Central American Refugees v. INS, 795
F.2d 1434 (9th Cir. 1986) (possible exception for inconvenient inmate transfer where it would interfere with an ongoing
attorney-client relationship).
Footnote 50. General Accounting Office, GAO/GGD-92-85, Immigration Control: Immigration Policies Affect
INS Detention Efforts 45-53 (1992) [hereinafter GAO Detention Report]. More recent information, although not directly equivalent, is in Peter L. Markowitz, Subcomm. on Enhancing Mechanisms for Service Delivery, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, a Case Study, 78 Fordham
L. Rev. 541 (2009).
Footnote 51. GAO Detention Report, supra note 50, at 45-53; see also The Constitution Project, Recommendations for Reforming Our Immigration Detention System and Promoting Access to Counsel in Immigration Proceedings
(2009); Human Rights Watch, Locked Up Far Away 43-57 (2009) (both discuss the problem without giving percentages).
Footnote 52. Exec. Office for Immigration Review, U.S. Dep't of Justice, FY 2010 Statistical Yearbook G1
(2011), http://www.justice.gov/eoir/statspub/fy10syb.pdf.
Footnote 53. Nina Siulc et al., Vera Inst. of Justice, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program 1 (2008), available at
http://www.vera.org/download?file=1780/LOP%2BEvaluation (cited in Geoffrey Heeren, Pulling Teeth: The State of
Mandatory Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 604 n.20 (2010)).
Footnote 54. Am. Bar Ass'n Comm'n on Immigration, Immigration Detainee Pro Bono Opportunities Guide 1
(2004), http://www.abanet.org/publicserv/immigration/probonoguidefinal.pdf.
Footnote 55. The law is clear that the Sixth Amendment right to counsel, being limited to criminal proceedings,
does not apply to removal proceedings. Michelson v. INS, 897 F.2d 465, 467-68 (10th Cir. 1990) ; United States v.
Campos-Asencio, 822 F.2d 506, 509 (5th Cir. 1987) ; Escobar-Ruiz v. INS, 787 F.2d 1294, 1297 n.3 (9th Cir. 1986)
("The fifth amendment guarantee of due process applies to immigration proceedings, and in specific proceedings, due
process could be held to require that an indigent alien be provided with counsel despite the prohibition of section 292.");
Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986) (since deportation is a civil proceeding, there is no Sixth
Amendment right to appointed counsel at government expense); Trench v. INS, 783 F.2d 181, 183 (10th Cir. 1986) (no
right to assigned counsel in deportation proceedings); United States v. Gasca-Kraft, 522 F.2d 149 (9th Cir. 1975) (not
entitled to appointed counsel); Barthold v. INS, 517 F.2d 689 (5th Cir. 1975) ("any right an alien has in this regard is
grounded in the Fifth Amendment guarantee of due process rather than the Sixth Amendment right to counsel"; no deviation from fundamental fairness here); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975) (due process requires
assigned counsel for indigent when necessary for fundamental fairness; lack of counsel did not prevent full administrative consideration, since respondent clearly deportable; dissenting judge would afford a right to assigned counsel for
indigents in all deportation cases against resident noncitizens) (citing this treatise); Burquez v. INS, 513 F.2d 751, 754
(10th Cir. 1975) ("no right to appointed counsel"; lack of counsel here not denial of due process, no prejudice because
"it is doubtful that counsel could have obtained a different result"); Rosales-Caballero v. INS, 472 F.2d 1158 (5th Cir.
1973) (right of indigent alien to counsel in deportation proceeding a "momentous issue"; remanded for further evidence
on issue of indigency or new hearing with counsel); Carbonell v. INS, 460 F.2d 240, 242 (2d Cir. 1972) (no merit on
the facts, although "such a claim might raise grave issues in the abstract"); Dunn-Marin v. District Director, 426 F.2d
894, 895 (9th Cir. 1970) (complaint that counsel not provided at government expense "consistently rejected"); cf. Scott
Page 13
1-4 Immigration Law and Procedure § 4.01
v. Illinois, 440 U.S. 367 (1979) (no right to assigned counsel when misdemeanor charge resulted only in imposition of
fine, although prosecution was under statute that authorized imprisonment); Gagnon v. Scarpelli, 411 U.S. 778 (1973)
(no absolute right to assigned counsel, although right to assigned counsel may exist in some circumstances to assure
fundamental fairness); Goldberg v. Kelly, 397 U.S. 254 (1970) (no right to assigned counsel in hearing upon termination of welfare benefits); Miranda v. Arizona, 384 U.S. 436 (1966) (in criminal case, indigent person deprived of freedom of action must be advised, before any statement is taken from him, that if he wants an attorney, counsel will be
provided for him); Kovac v. INS, 407 F.2d 102, 108 (9th Cir. 1969) (because of claimed lack of understanding, hearing
of unrepresented respondent unfair) (citing this treatise); Comment, The Indigent's Right to Counsel in Civil Cases, 76
Yale L.J. 545 (1967); William Haney, Comment, Deportation and the Right to Counsel, 11 Harv. Int'l L.J. 177 (1970)
(advocating recognition of right to assigned counsel).
Footnote 56. In 1981, the Select Commission on Immigration and Refugee Policy recommended a statutory
amendment to provide counsel at government expense to indigent permanent resident noncitizens in deportation hearings. Select Commission on Immigration and Refugee Policy, 97th Cong., Final Report, U.S. Immigration Policy and
the National Interest, Rec. VIII. B. 2 (Comm. Print 1981). Congress never acted on that recommendation.
Footnote 57. Siaba-Fernandez v. Rosenberg, 302 F.2d 139 (9th Cir. 1962) (IJ informed noncitizen of agencies
available and adjourned hearing to enable him to contact such agencies); Castro-Louzan v. Zimmerman, 94 F. Supp. 22
(E.D. Pa. 1950) .
Footnote 58. See, e.g., 8 C.F.R. §§ 212.6(d)(1), 287.3(c), 1240.10(a)(2), (3). The Executive Office for Immigration Review (EOIR) maintains the list of free legal services providers for noncitizens. 62 Fed. Reg. 9071 (Feb. 28,
1997) (removing 8 C.F.R. Part 292a and moving criteria for the list to what is now 8 C.F.R. § 1003.61-1003.65). See
generally Landon v. Plasencia, 459 U.S. 21, 36 (1982) (remand for consideration of whether excluded returning resident had been accorded procedural due process; a suggested issue was "whether the new regulation [promulgated after
the hearing] on the right to notice of free legal services is of constitutional magnitude"); Delgado-Corea v. INS, 804
F.2d 261 (4th Cir. 1986) (no prejudice shown even though respondents waived counsel after having been furnished
wrong list of organizations available for free legal services).
Footnote 59.
44 Fed Reg. 4652 (Jan. 23, 1979) (supplementary information).
Footnote 60. The current regulations are at 45 C.F.R. pt. 1626.
Footnote 61. See, e.g., Pub. L. No. 110-161, § 540, 121 Stat. 1844, 1897 (2007) (modifying restrictions to permit
representation of H-2B forestry workers); Pub. L. No. 105-119, § 502, 111 Stat. 2440, 2510-2511 (1997) (incorporates
Violence Against Women Act of 2005 by allowing legal assistance to noncitizens who have been battered or subjected
to extreme cruelty by a spouse or parent); Pub. L. No. 104-134, § 504(a)(11), 110 Stat. 1321 (1996); Pub. L. No.
101-515, § 607, 104 Stat. 2101 (1990) (codified at 45 C.F.R. pt. 1626, especially § 1626.2) (exceptions for certain otherwise ineligible noncitizens who are the victims of domestic abuse). See generally Robert L. Bach, Building Community Among Diversity: Legal Services for Impoverished Immigrants, 27 U. Mich. J.L. Reform 639, 641-45 (1994) (describing immigrants' access to legal services).
Footnote 62. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 305, 100 Stat. 3359, 3434; 45
C.F.R. § 1626.11.
Footnote 63. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a),
110 Stat. 1321. See generally Donald Kerwin, Charitable Legal Immigration Programs: Can They Survive?, 74 Interpreter Releases 813, 814 & n.20 (May 19, 1997).
Footnote 64. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a),
110 Stat. 1321; see 45 C.F.R. § 1626.3.
Footnote 65.
516 F.2d 565 (6th Cir. 1975) (citing this treatise).
Footnote 66.
Id. at 568-69 (citation and footnote omitted).
Footnote 67.
Id. at 571-74 .
Footnote 68. See Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 1032-34
(6th ed. 2008); Appleman, supra note 1 (former BIA member arguing for a case-by-case approach); Robert N. Black,
Due Process and Deportation--Is There a Right to Assigned Counsel?, 8 U.C. Davis L. Rev. 289 (1975); Mills et al.,
Page 14
1-4 Immigration Law and Procedure § 4.01
supra note 1 (arguing that asylum applicants must have assigned counsel in removal proceedings); David A. Robertson,
Comment, An Opportunity to be Heard: The Right to Counsel in a Deportation Hearing, 63 Wash. L. Rev. 1019
(1988).
Footnote 69. Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008) ; Blanco v. Mukasey, 518 F.3d 714, 722 (9th
Cir. 2008) ; Aris v. Mukasey, 517 F.3d 595, 600-01 (2d Cir. 2008) ; Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.
2007) ; Fadiga v. Att'y Gen., 488 F.3d 142, 155 (3d Cir. 2007) ; Sene v. Gonzales, 453 F.3d 383, 386 (6th Cir. 2006)
; Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006) ("[T]he only context in which courts have recognized a
constitutional right to effective assistance of counsel in civil litigation is in immigration cases."); Dakane v. United
States Att'y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005) ; Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) ;
Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) ("counsel at a deportation hearing may be 'so ineffective as
to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause.'
") (quoting Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986)) ; Saleh v. United States Dep't of Justice,
962 F.2d 234 (2d Cir. 1992) (claim of ineffective assistance of counsel rejected, because noncitizen "has not demonstrated either incompetent performance by his attorneys or resultant prejudice to his case"); Janvier v. United States,
793 F.2d 449 (2d Cir. 1986) (failure of counsel in criminal case to make timely request for recommendation against
deportation may have deprived defendant of effective representation by counsel); Janvier v. United States, 659 F.
Supp. 827 (N.D.N.Y. 1987) (upon remand, judgment and sentence were vacated because counsel's failure to request
recommendation against deportation was prejudicial); United States v. Nagaro-Garbin, 653 F. Supp. 586, 591 (E.D.
Mich. 1987) (criminal case; since counsel correctly informed client of possible immigration consequences, there was no
ineffective assistance); Quin v. United States, 652 F. Supp. 454 (D.P.R. 1987) (allegation that counsel in criminal case
had not advised client of possible immigration consequences not raised until after conviction and appeal, found to be
frivolous). For state cases on this issue, see, e.g.,
People v. Superior Court, 11 Cal. 3d 793, 114 Cal. Rptr. 596, 523
P.2d 636 (1974) ; People v. Pozo, 746 P.2d 523 (Colo. 1987) ; Edwards v. Florida, 393 So. 2d 597 (Fla. App. 1981)
(counsel's failure to advise of deportability resulting from guilty plea made representation ineffective; court remanded
case to permit defendant to withdraw guilty plea);
People v. Padilla, 151 Ill. App. 3d 297, 104 Ill. Dec. 522, 502
N.E.2d 1182 (Ill. 1986) ;
People v. Correa, 124 Ill. App. 3d 668, 80 Ill. Dec. 395, 465 N.E.2d 507 (Ill. App. 1984) ,
aff'd,
108 Ill. 2d 541, 92 Ill. Dec. 496, 485 N.E.2d 307 (Ill. 1985) ; Daley v. State, 61 Md. App. 486, 487 A.2d 320
(Md. 1985) ; People v. McDonald, 1 N.Y.3d 109 (2003) (a defense counsel's erroneous advice as to the deportation
consequences of a plea agreement may constitute ineffective assistance of counsel, provided there is a reasonable probability that but for counsel's error the defendant would not have pleaded guilty and would have insisted on going to trial); Lyons v. Pearce, 298 Ore. 554, 694 P.2d 969 (1985) ; Commonwealth v. Wellington, 305 Pa. Super. 24, 451
A.2d 223 (Pa. Super. Ct. 1982) (counsel's failure to advise of deportability resulting from guilty plea made representation ineffective; court remanded case to permit defendant to withdraw guilty plea). See generally Magallanes-Damian
v. INS, 783 F.2d 931, 933-34 (9th Cir. 1986) (counsel's decision to forgo challenge to deportability, in exchange for
longer period of voluntary departure, was a tactical decision, which, even if in hindsight unwise, did not constitute ineffective assistance of counsel); Trench v. INS, 783 F.2d 181, 184 (10th Cir. 1986) (not necessary to decide whether
failure to advise noncitizen of immigration consequences of guilty plea constituted ineffective assistance of counsel);
Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir. 1984) (same; attorney's tactical decision not "to raise the defense of
equitable estoppel did not impinge upon the fundamental fairness of the deportation proceedings") (citing this treatise);
Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1142 (9th Cir. 1981) (ineffective representation not established by counsel's
"tactical decision, even if in hindsight unwise," to admit illegal entry and concentrate on another defense); Castro-Carvache v. INS, 911 F. Supp. 843 (E.D. Pa. 1995) (allegations of ineffective assistance of counsel "are allegations
of serious constitutional error and it behooves all tribunals ... to address such claims with great care"); Motta v. District
Director, 869 F. Supp. 80 (D. Mass. 1994) (petitioner satisfying BIA's procedural prerequisites for an allegation of ineffective assistance of counsel would be denied due process if he were deported before the Board examined the merits
of an IJ's decision in the case); Colloquium, Effective Assistance of Counsel for the Criminal Defendant: Has the Promise Been Fulfilled?, 14 N.Y.U. Rev. L. & Soc. Change 1 (1986); Lory D. Rosenberg & Kenneth Stern, Ineffective Assistance of Counsel: An Antidote for the Convicted Alien, 65 Interpreter Releases 529 (May 23, 1988).
Footnote 70. See also Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 287 (2010).
Footnote 71. See supra note 20; see also
(2010) .
Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 287
Footnote 72. Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008) ("Ineffective assistance of counsel in a removal proceeding is a denial of due process if the proceeding 'was so fundamentally unfair that the alien was prevented
Page 15
1-4 Immigration Law and Procedure § 4.01
from reasonably presenting his case.' ") (citations omitted); Aris v. Mukasey, 517 F.3d 595, 600-01 (2d Cir. 2008)
("the Fifth Amendment does require that [removal] proceedings comport with due process of the law") (citation omitted); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) ; Fadiga v. Att'y Gen., 488 F.3d 142, 155 (3d Cir. 2007) ;
Sene v. Gonzales, 453 F.3d 383, 386 (6th Cir. 2006) ; Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006)
("[T]he only context in which courts have recognized a constitutional right to effective assistance of counsel in civil
litigation is in immigration cases."); Dakane v. U.S. Att'y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005) ; Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) ; Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) ("counsel at
a deportation hearing may be 'so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause.' ") (quoting Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir.
1986)) ; Mohsseni Behbahani v. INS, 796 F.2d 249, 251 n.1 (9th Cir. 1986) (citing Ramirez v. INS, 550 F.2d 560,
563 (9th Cir. 1977)) . See generally Note, A Second Chance: The Right to Effective Assistance of Counsel in Immigration Removal Proceedings, 120 Harv. L. Rev. 1544 (2007) (arguing that the right is correctly rooted in constitutional
due process considerations of fundamental fairness). But see Afanwi v. Mukasey, 526 F.3d 788, 798 (4th Cir. 2008)
(Fifth Amendment right to a fundamentally fair hearing does not apply to an attorney's ineffectiveness in a removal proceeding); Matter of Compean, 24 I. & N. Dec. 710 (Att'y Gen. 2009) (same), vacated, 25 I. & N. Dec. 1 (Att'y Gen.
2009).
Footnote 73. 24 I. & N. Dec. at 710 . See generally Daniel Changshik Moon, Current Development, Attorney
General Mukasey Eliminates Right to Effective Assistance to Counsel in Immigration Proceedings, 23 Geo. Immigr.
L.J. 245 (2008).
Footnote 74.
Matter of Compean, 25 I. & N. Dec. 1 (Att'y Gen. 2009).
Footnote 75.
Id. at 2 .
Footnote 76. Id. at 3 . In Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the BIA held that a motion to reopen deportation proceedings based on a claim of ineffective assistance of counsel must meet the following three conditions: (1) The motion should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant
facts; (2) Before allegations of ineffective assistance of former counsel are presented to the Board, former counsel must
be informed of the allegations and allowed the opportunity to respond; and (3) If it is asserted that prior counsel's handling of the case involved a violation of ethical or legal responsibilities, the motion should reflect whether a complaint
has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not. Id. at 639 .
Footnote 77.
25 I. & N. Dec. 1, 3 (Att'y Gen. 2009) .
Footnote 78. Id.
Footnote 79. Smith v. Georgia, 697 S.E.2d 177, 183 (Ga. 2010) ("Direct and collateral consequences relate to the
trial court's duty to ensure that guilty pleas are knowingly and voluntarily entered as a matter of Fifth Amendment due
process, while ineffective assistance of counsel relates to the defense lawyer's duty pursuant to the Sixth Amendment. ...
Padilla confirms this analytical distinction.").
Footnote 80. States never developed a central rubric for classifying direct and collateral consequences, but many
courts classified deportation/removal as collateral. See, e.g., Padilla v. Kentucky, 176 L. Ed. 2d 284, 293 (2010) ;
United States v. Banda, 1 F.3d 354 (5th Cir. 1993) ("We hold that an attorney's failure to advise a client that deportation
is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel."); Varela v. Kaiser, 976
F.2d 1357, 1358 (10th Cir. 1992) (citing cases from the Second, Fourth, Seventh, and Eleventh Circuits); United
States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990) (counsel's failure to advise criminal defendant of deportability
upon plea of guilty did not constitute ineffective assistance of counsel; "deportation is a harsh collateral consequence,
but many other collateral consequences are also harsh"); United States v. George, 869 F.2d 333, 338 (7th Cir. 1989) ;
United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985) (deportation a collateral consequence of a guilty plea and
need not be explained to defendant to ensure that the plea is voluntary); Giwah v. United States, 1997 U.S. Dist. LEXIS
6239, at *4 (S.D.N.Y. 1997) ("it is well established that an attorney's failure to advise a defendant that a conviction
could result in deportation does not support a claim for ineffective assistance");
People v. Huante, 143 Ill. 2d 61, 156
Ill. Dec. 756, 571 N.E.2d 736, 740-41 (Ill. 1991) (failure of counsel to inform defendant of immigration consequences
of guilty plea did not constitute ineffective assistance of counsel); State v. Rojas-Martinez, 125 P.3d 930, 935 (Utah
2005) ("[D]eportation is a collateral consequence of the criminal process and ... defense counsel's failure to advise a
defendant about all possible deportation consequences does not amount to ineffective assistance of counsel."). See gen-
Page 16
1-4 Immigration Law and Procedure § 4.01
erally Maria E. Andrade, Avoiding Deportation Before Conviction in a World of Uncertainty, 14 Bender's Immigr. Bull.
797, 801 n.12 (July 1, 2009).
Footnote 81. ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) . For discussion of the practical implications of Padilla, see Vivian Chang, Note, Where Do We Go From Here: Plea Colloquy Warnings and Immigration
Consequences Post-Padilla, 45 U. Mich. J.L. Reform 189-218 (2011); Danielle M. Lang, Note, Padilla v. Kentucky:
The Effect of Plea Colloquy Warnings on Defendants' Ability To Bring Successful Padilla Claims, 121 Yale L.J. 944
(2012); Immigrant Defense Project, Duty of Criminal Defense Counsel Representing An Immigrant Defendant After
Padilla v. Kentucky (Apr. 9, 2010), available at
http://www.immigrantdefenseproject.org/docs/2010/10-Padilla_Practice_Advisory.pdf; New York State Defenders
Ass'n, Life after Padilla v. Kentucky: What Defense Attorneys Should Know (2010), available at
http://www.nysda.org/docs/PDFs/CIDP/App%20F%20NYSDA%20PADILLA%20ADVISORY.pdf; Siovhan Sheridan-Ayala, Advice to Alien Clients in Criminal Cases After Padilla v. Kentucky, 2010 Emerging Issues 4987 (Apr. 26,
2010); Wendy Wayne & Jeanette Kain, Practice Advisory on Padilla v. Kentucky (Apr. 8, 2010), available at
http://www.publiccounsel.net/Practice_Areas/immigration/pdf/Padilla%20v.%20Kentucky%20-%20CPCS%20advisory
%204-8-10.pdf.
Footnote 82. Padilla, 176 L. Ed. 2d at 292 (footnote omitted).
Footnote 83. Id. at 294.
Footnote 84. 466 U.S. 668 (1984) . Strickland requires attorneys to provide effective assistance of counsel that
does not fall "below an objective standard of reasonableness" as measured by prevailing professional norms. Id. at
688 . In a Strickland analysis, if a court determines that counsel fell below that standard, the court must then determine
whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694 .
Footnote 85.
Padilla, 176 L. Ed. 2d 284, 293 .
Footnote 86.
Id. at 298 .
Footnote 87.
Id. at 294 (quoting Strickland,
Footnote 88.
Id. at 297 .
466 U.S. at 688).
Footnote 89. Hernandez v. Florida, 61 So. 3d 1144, 1152 (Fla. Dist. Ct. App. 2011) (certifying conflict to Florida
Supreme Court). See generally Sui Chung & Michael S. Vastine, "Looking on darkness which the blind do see": An
Analysis of the Sixth Amendment Rights of Noncitizens and the Application of Padilla v. Kentucky in the Florida
Courts, 17 Bender's Immigr. Bull. 356 (Mar. 15, 2012).
Footnote 90. For example, under California Penal Code § 1016.5 a state court must inform defendants before
taking a guilty plea that they could be deported if convicted. Similarly, Rule 3.172 of Florida's Rules of Criminal Procedure mandates that before accepting a guilty or no contest plea, the trial judge must personally address the defendant
to ensure that he or she understands the possibility of deportation. Similar laws exist in several other states, including
Connecticut, Massachusetts, New York, North Carolina, Ohio, Oregon, Texas, and Washington. See generally Maria E.
Andrade, Avoiding Deportation Before Conviction in a World of Uncertainty, 14 Bender's Immigr. Bull. 797, 801 n.12
(July 1, 2009); Danielle M. Lang, Note, Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants'
Ability To Bring Successful Padilla Claims, 121 Yale L.J. 944 (2012).
Footnote 91.
State v. Sandoval, 249 P.3d 1015 (Wash. 2011) .
Footnote 92.
Flores v. State, 57 So. 3d 218 (Fla. Dist. Ct. App. 2010) .
Footnote 93.
Neufville v. State, 13 A.3d 607 (R.I. 2011) .
Footnote 94.
People v. Kazadi, 2011 Colo. App. LEXIS 325 (Colo. Ct. App. Mar. 3, 2011) .
Footnote 95.
Padilla v. Kentucky, ___ U.S. ___, 176 L. Ed. 2d 284, 295 (2010) .
Footnote 96.
Id. at 296 .
Footnote 97. A controlled-substance conviction makes a noncitizen deportable under INA § 237(a)(2)(B)(i), 8
U.S.C. § 1227(a)(2)(B)(i). See generally infra § 71.05[5].
Page 17
1-4 Immigration Law and Procedure § 4.01
Footnote 98. Padilla, 176 L. Ed. 2d at 296.
Footnote 99. Id. at 297-98. For a more detailed discussion, see Wayne & Kain, supra note 81, at 4. See generally
Cesar Cuauhtemoc Garcia Hernandez, Major Issues the Courts Have Been Dealing with Since Padilla v. Kentucky,
2011 Emerging Issues 5882 (Sept. 8, 2011).
Footnote 100. E.g., United States v. Chang Hong, 2011 U.S. App. LEXIS 18034 (10th. Cir. Aug. 30, 2011) ;
Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) , cert. granted, 2012 U.S. LEXIS 3335 (Apr. 30, 2012); Ufele
v. United States, 2011 U.S. Dist. LEXIS 133222 (D.D.C. Nov. 18, 2011) ; United States v. Agoro, 2011 U.S. Dist.
LEXIS 140476 (D. R.I. Nov. 16, 2011) ; Sarria v. United States, 2011 U.S. Dist. LEXIS 120982 (S.D. Fla. Oct. 18,
2011) ; State v. Gaitan, 2012 N.J. LEXIS 195 (Feb. 28, 2012) ; State v. Alshaif, 2012 N.C. App. LEXIS 281 (Feb. 21,
2012) .
Footnote 101. E.g., United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) ; Marroquin v. United States, 2011
U.S. Dist. LEXIS 11406 (S.D. Tex. Feb. 4, 2011) ; Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011) .
Footnote 102.
Footnote 103.
United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011) .
Padilla v. Kentucky, ___ U.S. ___, 176 L. 3d. 2d 284, 298 (2010).
Footnote 104. See generally Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002); Susan Pilcher, Justice Without a Blindfold: Criminal
Proceedings and the Alien Defendant, 50 Ark. L. Rev. 269 (1997); L. Griffin Tyndall, "You Won't be Deported ... Trust
Me!" Ineffective Assistance of Counsel and the Duty to Advise Alien Defendants of the Immigration Consequence of
Guilty Pleas, 19 Am. J. Trial Advoc. 652 (1996); Michael S. Vastine, Is Your Client Prejudiced? Litigating Ineffective-Assistance-of-Counsel Claims in Immigration Matters Arising in the Eleventh Circuit, 62 U. Miami L. Rev. 1063
(2008); Ronald F. Wright, Padilla and the Delivery of Integrated Criminal Defense, 58 UCLA L. Rev. 1515 (2011);
Timothy B. Jafek, Note, Non-Citizens, Guilty Pleas, and Ineffective Assistance of Counsel Under the Arizona Constitution, 42 Ariz. L. Rev. 549 (2000); Jennifer Welch, Comment, Defending Against Deportation: Equipping Public Defenders to Represent Noncitizens Effectively, 92 Calif. L. Rev. 541 (2004).
Footnote 105. Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981) ; Ocon-Perez v. INS, 550 F.2d 1153, 1154
(9th Cir. 1977) ; Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) .
Footnote 106.
1994) .
Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) ; Thomas v. INS, 35 F.3d 1332 (9th Cir.
Footnote 107. See supra notes 18-32.
Footnote 108. See supra note 20.
Footnote 109. For limitation on fees prescribed in earlier regulations, see Charles Gordon, Right to Counsel in
Immigration Proceedings, 45 Minn. L. Rev. 875, 890 n.104 (1961).
Footnote 110. See infra § 4.04[1].
Footnote 111. See Anonymous v. Baker, 360 U.S. 287 (1959) ; In re Groban, 352 U.S. 330 (1957) ; cf. Brewer
v. Williams, 430 U.S. 387 (1977) (improper interrogation of criminal defendant without presence of counsel he had retained, after arrest and after he had been warned of rights, although officers had repeatedly been told such interrogation
would be improper); Miranda v. Arizona, 384 U.S. 436 (1966) (interrogation of prospective criminal defendant invalid
unless he or she was advised of the rights to remain silent, to be represented by counsel, and to have counsel supplied, if
he or she was indigent); Escobedo v. Illinois, 378 U.S. 478 (1964) (interrogation of prospective criminal defendant
invalid when not warned of rights, and request for consultation with counsel refused); Massiah v. United States, 377
U.S. 201 (1964) (interrogation of criminal defendant after indictment invalid without presence of counsel); Spano v.
New York, 360 U.S. 315 (1959) ; William Haney, Comment, Deportation and the Right to Counsel, 11 Harv. Int'l L.J.
177 (1970).
Footnote 112. Matter of S-, 8 I. & N. Dec. 409 (BIA 1959) (failure to advise noncitizen of right to counsel at
taking of preliminary statement did not preclude its use). Statements upheld when made: while in custody of immigration officers, Suey v. Backus, 225 U.S. 460 (1912) ; Ex parte Kishimoto, 32 F.2d 991 (9th Cir. 1929) ; In re
Kosopud, 272 F. 330 (N.D. Ohio 1920) ; while in custody of other officials, Ex Parte Vilarino, 50 F.2d 582 (9th Cir.
1931) (statement to immigration officers, while in police custody); Plane v. Carr, 19 F.2d 470 (9th Cir. 1927) (state-
Page 18
1-4 Immigration Law and Procedure § 4.01
ment to police officers while under arrest for prostitution); to immigration officers, when not in custody, Bilokumsky v.
Tod, 263 U.S. 149, 156 (1923) ; United States ex rel. Drachmos v. Hughes, 26 F. Supp. 192 (D.N.J. 1938) , aff'd, 110
F.2d 662 (3d Cir. 1940) . But see Ungar v. Seaman, 4 F.2d 80 (8th Cir. 1924) (unfair procedure found when the
statement was taken from someone under immigration arrest, without counsel, notice of the charges, or opportunity to
meet them).
Footnote 113. Landon v. Clarke, 239 F.2d 631 (1st Cir. 1956) ; United States ex rel. Beck v. Neelly, 202 F.2d
221 (7th Cir. 1953) .
Footnote 114. Administrative Procedure Act § 6(a), 5 U.S.C. § 555(b).
Footnote 115. 8 U.S.C. § 500(b).
Footnote 116. 20 C.F.R. §§ 801.401, 802.202.
Footnote 117. E.g., there was specific authorization for the appearance of attorneys before the State Department
Board of Appellate Review when that board existed. 22 C.F.R. § 7.12 (2007).
Footnote 118. See, e.g., U.S. Dep't of State, 9 Foreign Affairs Manual (FAM) § 40.4 n.12.4.
Footnote 119. For an account of the prosecution of an attorney representing noncitizens in France, see 61 Interpreter Releases 101 (Feb. 10, 1984). Criminal proceedings against attorneys are discussed infra in § 4.03[4][f].
* The authors thank Karl Krooth, Brian Palmer, and Lawrence H. Rudnick for their assistance on §§ 4.01, 4.03, and
4.04, respectively.
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