Appointing Counsel for Non-Citizen Parents of Citizen Children

Guest blogger: Carlos Cueva-Alegria, second-year law student, University of San Francisco:

Despite immigration consequences that resemble criminal punishment such as prolonged “detention”, courts have continued to hold that the deportation process is a civil proceeding and not a criminal one. This has resulted in immigrants, most of whom are unable to afford a legal counsel, representing themselves during immigration court hearings because they are not constitutionally entitled to appointment of legal counsel. For undocumented parents of U.S. citizens, lack of legal counsel results in deportation that can, in essence, legally terminate the custody of their children. According to DHS, between January and June 2011, 46,486 non-citizens with U.S. citizen children were deported (Immigration Enforcement in the United States, The Rise of a Formidable Machinery, p. 135). Although courts have held that there is no constitutional right to appointed legal counsel for civil proceedings, this does not equate with a constitutional ban on appointed legal counsel for civil proceedings. In fact, Supreme Court decisions show that appointment of legal counsel for civil proceedings involving parental rights may in certain situations be required, and immigration should be no different.

To beginwith, the Supreme Court stated in 2010 that “Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it ‘most difficult’ to divorce the penalty from the conviction in the deportation context” (Padilla v. Kentucky). As a result, the court held that criminal defense counsel must inform their clients whether their plea carries a risk of deportation in order to be considered constitutionally competent. Thus the court acknowledged that deportation is intimately related to the criminal process, and required counsel to advise clients of deportation risks in light of their pleas. The court more importantly also acknowledged that immigration law can be complex, a legal specialty of its own, and that some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. This was the court’s first step in recognizing that immigration and criminal law are related, very complex, and therefore began to provide greater protection to non-citizens.

Following this line of reasoning, in 2011, the U.S. District Court for the Central District of California held that non-citizens with mental disabilities must be appointed counsel, even at expense of the government. This holding recognized that it was impractical for a father not trained in immigration law to represent a mentally disabled child. Specifically, the court stated that “plaintiff’s father lacks “adequate knowledge, information, and experience in immigration law and procedure” to represent his son. (Franco-Gonzalez et al v. Holder). This line of reasoning can be extended to apply to all immigrants, since very few of them can be said to have “adequate knowledge, information, and experience in immigration law and procedure” to represent others, it is unlikely that they will possess these abilities to represent themselves. This would apply to non-citizen parents as well, especially in light of not only facing deportation, but the secondary effect of losing custody of their children.

There is further legal precedent for considering appointment of counsel for civil deportation proceedings. In 1981, the Supreme Court held that there is a “presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty” (Lassiter v. Department of Social Services, 1981). In that case, an indigent parent was not appointed legal counsel even when the court decided to terminate parental custody. Although the court held that there was no error by the state in not appointing legal counsel, the holding did not foreclose appointing legal counsel in every situation. The court held that three elements should to be evaluated in deciding what due process requires: the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. All of the elements must be weighed, and applied in Lassiter, loss of personal freedom for the indigent client was not at stake which made a difference. This type of balancing should be applied in deportation proceedings, and under most circumstances, the balance would tip in the non-citizen’s favor for having appointed counsel.

Applying the test, a non-citizen parent of a U.S. citizen child has a very compelling interest in keeping custody of his child and therefore to not be deported. This is balanced against the government’s interest in enforcing immigration laws, which also is compelling. However, the deciding factor is the risk that the procedure will lead to erroneous decisions without legal counsel. In many cases, legal counsel is extremely important at deportation hearings. The Supreme Court itself has acknowledged the complexity of immigration laws, and it is illogical to think that someone who is not trained in immigration can offer any viable defense. Using this analysis, the scales should tip in favor of having legal counsel appointed in those circumstances. The proceedings not only lead to deportation, but also loss of custody. The government’s argument that this would add to government expense can be countered by studies that show the government could save money by providing publicly funded counsel to indigent non-citizens (Cost of Counsel in Immigration, 2014).

Following Supreme Court decisions recognizing the complexities of immigration law that require counsel to advice clients of immigration consequences to pleas, courts should consider providing counsel to indigent noncitizen parents of U.S. citizens. The legal precedent for this was set in 1981 with Lassiter, and immigration courts have not applied the test established by that decision. This test should be applied in these civil proceedings to help prevent the destruction of families that include citizen children.

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