September 17, 2013

An Immigration Gideon for Lawful Permanent Residents

I had the privilege of participating in a Yale Law Journal symposium entitled "The Gideon Effect:  Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright."  Gideon, of course, was the path-breaking decision guaranteeing counsel to defendants on criminal prosecutions.  The symposium included a star-studded cast of speakers, including Carol Steiker, Erwin Chemerinsky, Paul Butler, Neal Kumar Katyal, Jack Chin, and many others.

My contribution is entitled An Immigration Gideon for Lawful Permanent Residents, 122 YALE L.J. 2394 (2013) and can be downloaded at:

Here is the abstract to the article:

In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court's decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. This Essay studies the right to counsel in a particular category of civil cases-immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. It contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States. Temporary visitors and undocumented immigrants generally lack such a weighty legal interest and community ties. Modern developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.