Should Immigration Advocates hope for their own Gideon?

Guest blogger: Liz Pearce, 3L Student, University of San Francisco School of Law:

On March 18th, 2013, Gideon v. Wainwright  had its 50th birthday. Gideon stands for the proposition that a person accused of a crime must being appointed counsel if they cannot afford one. Several news articles made note of this momentous occasion using it to reflect on what Gideon’s legacy has come to mean today. Unfortunately, the benefits of Gideon have been overshadowed by over zealous prosecutors  and underfunded public defenders.  As hollowed as Gideon’s legacy has become, there is at least an ideal to strive for – strong words by Justice Black that advocates can stand on when imploring this country to better fund representation for indigent defendants. “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”  It is so fundamental that a judge does not ask a criminal defendant whether they are a citizen; instead anyone accused of a crime, who cannot afford counsel, is provided one, regardless of their citizenship status.

Yet, aliens facing deportation do not receive the benefits of Gideon because decades ago the Supreme Court decided that deportation was a civil matter (see e.g, INS v. Lopez-Mendoza). “A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime.”   The fact of the matter is that deportation affects a person equally if not more than going to prison. Deportation rips apart families, forces people to lose jobs and homes, and often sends a person off to a place where they are unfamiliar with the culture and the language.

Immigration advocates need their own Clarence Earl Gideon. Mr. Gideon was a petty theft who asked the court for counsel but at the time only capital cases received court appointed counsel. After putting on his own trial, Mr. Gideon was convicted, but from jail wrote letters to the Supreme Court justices about his case. The receptive Warren court took his case and appointed a future Justice, Abe Fortas, to argue his appeal. Mr. Gideon brought a face to the injustice, forcing the Justices to acknowledge the unfairness inherent in the system. Immigration advocates need this face, and a name to give depth and life to the stark realities of the broken immigration system. No one should face deportation alone. The language used in Gideon resonates within the immigration context: “[g]overnment  both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.” For deportations, the government spends vast amount of money to deport an individual, who often has no legal assistance. This person is often not a criminal, but is a human being fighting for a better life, and without a name, like Gideon, these forgotten individuals rights will continue to suffer. Who will be immigration’s Gideon?

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