As immigration reform takes shape in Congress, the US must ensure that any person detained in the context of immigration enforcement must be provided access to legal counsel. Victims of sex trafficking and genuine refugees are among those held without possibility of finding counsel.
Jeremy Redmon/Atlanta Journal-Constitution/AP
Congress is off to an optimistic though rancorous start on comprehensive immigration reform. Advocates across the political spectrum recognize the need to address the arcane and often incomprehensible set of rules that govern legal and illegal immigration in the United States. We must also continue to honor our treasured commitment to refugee protection.
But a crucial issue that cries out for action is the need to ensure that any person detained in the context of immigration enforcement must have access to legal counsel. America cannot continue to propound the rule of law abroad while denying upward of 400,000 individuals (the number deported in 2012) the opportunity to be meaningfully informed of legal charges against them and of their options to steer through the legal maze.
Due to Supreme Court precedent from the 1880s that arose in the context of viral anti-Chinese sentiment, it has been accepted doctrine that an immigration removal proceeding is civil rather than criminal in nature. That means only limited access to counsel.
Congress has since determined that individuals in removal proceedings are allowed representation by counsel, but not at the expense of the government. That possibility creates the opening to rectify this injustice. Congress should change the law to provide access to counsel at government expense if necessary for those in detention.
Under the present scheme even detained children and the mentally disabled are not provided with counsel, except for the scarce non-profit resources and occasional attorney from an immigration project who may be able to step in. But a handful of such lawyers cannot provide counsel to hundreds of thousands of detained individuals. Victims of sex trafficking, genuine refugees, and torture survivors are among those held without possibility of ever finding legal counsel.