By Marcia Coyle
Five immigrant rights organizations have filed a petition asking the Department of Justice to begin an official rulemaking to permit immigration judges to appoint counsel in certain cases.
"The massive increase in the number of immigration detainees, the increased complexity of the immigration law, and the inability of most immigrants to navigate the legal system without counsel all suggest the reconsideration of the appointment of counsel," the petition, filed June 29, states.
With pro bono help from Jones Day, the petition for rulemaking was submitted by the Catholic Legal Immigration Network Inc.; the National Immigration Forum; the National Immigrant Justice Center; the Northwest Immigrant Rights Project, and the Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College.
The groups call for appointment of counsel only where the immigration judge finds it is necessary for the proceedings to be "fundamentally fair." They say the judge should be required to consider eight factors, including the alien's ability to read, write, and comprehend the English language; the complexity of the case; and whether the alien is detained.
The groups contend there is no express bar to an immigration judge appointing counsel, either in the Immigration and Nationality Act or regulations. But the regulations require that an individual be informed of his "right to representation, at no expense to the Government, by counsel of his or her own choice." This regulation, particularly the "at no expense to the Government" statement, is often interpreted as being inconsistent with appointment of counsel by the Immigration court, they note.
The five groups, however, argue in their petition that there is nothing inconsistent with the broad rule allowing those in immigration courts to have a lawyer at their own expense and a narrow rule permitting the court to appoint lawyers in certain circumstances. The payment restriction in the broad rule, they contend, would not apply. "There are some contexts in which courts appoint counsel without payment," they noted, adding the Supreme Court has upheld those situations. But they called such appointment schemes "ill-advised," particularly in complex cases.
The groups also argue that appointing lawyers would generally save the government money and time by increasing the efficient functioning of the immigration courts and preventing undue delay while immigrants are detained at government expense. The petition notes that represented immigrants are consistently granted relief at a higher rate than unrepresented immigrants.
Charles Roth, director of litigation at the National Immigration Justice Center, said, "We find our argument convincing and we would hope it has traction both from the standpoint of justice and the standpoint of efficiency for the government. When someone is in immigrant detention, it costs the government $70 to $100 a day. We see this as having some benefits to the government."
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