{ "id": "R43613", "type": "CRS Report", "typeId": "REPORTS", "number": "R43613", "active": true, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 450946, "date": "2016-03-17", "retrieved": "2016-03-24T16:51:56.536492", "title": "Aliens\u2019 Right to Counsel in Removal Proceedings: In Brief", "summary": "The scope of aliens\u2019 right to counsel in removal proceedings is a topic of recurring congressional and public interest. This topic is complicated, in part, because the term right to counsel can refer to either (1) the right to counsel of one\u2019s own choice at one\u2019s own expense, or (2) the right of indigent persons to counsel at the government\u2019s expense. A right to counsel can also arise from multiple sources, including the Fifth and Sixth Amendments to the U.S. Constitution, the Immigration and Nationality Act (INA), other federal statutes, and federal regulations. Further, in some cases, courts have declined to recognize a categorical right to counsel, applicable to all aliens in removal proceedings, but have opined that individual aliens could have a right to counsel at the government\u2019s expense on a case-by-case basis because of their specific circumstances. \nRight to Counsel at the Alien\u2019s Expense. The Fifth Amendment to the U.S. Constitution has generally been construed to mean that aliens have a right to counsel at their own expense in formal removal proceedings. The Fifth Amendment guarantees that \u201c[n]o person ... shall be deprived of life, liberty, or property\u201d without due process of law. Aliens\u2014including those who have entered or remained in the United States in violation of federal immigration law\u2014have been found to be encompassed by the Fifth Amendment\u2019s usage of \u201cperson,\u201d and removal can be seen as implicating an alien\u2019s interest in liberty. Thus, courts have historically viewed access to counsel at one\u2019s own expense as required to ensure \u201cfundamental fairness\u201d in formal removal proceedings. While then-Attorney General Mukasey\u2019s 2009 decision in Matter of Compean expressed doubt about the Fifth Amendment basis for aliens\u2019 right to counsel at their own expense, this decision was subsequently vacated later in 2009 by then-Attorney General Holder. \nVarious federal statutes and regulations also provide aliens (other than those in expedited removal proceedings under Section 235 of the INA) with a right to counsel at their own expense. Some of these provisions refer to such counsel as a \u201cprivilege.\u201d However, the provisions have generally been construed as conferring a legally enforceable right. \nRight to Counsel at the Government\u2019s Expense. Aliens, as a group, generally do not have a right to counsel at the government\u2019s expense in administrative removal proceedings under either the Sixth Amendment or the INA. The Sixth Amendment\u2019s \u201cright to ... have the Assistance of Counsel\u201d at government expense, in the case of indigent persons, applies to criminal proceedings. Removal proceedings, in contrast, are civil in nature (although aliens subject to judicial orders of removal could be seen to have a Sixth Amendment right to counsel in the criminal proceedings that result in such orders). Similarly, the INA and its implementing regulations do not purport to provide a right to appointed counsel for any aliens except those removed by the Alien Terrorist Removal Court, which has not been used to date. \nIndividual aliens could, however, potentially be found to have a right to counsel at the government\u2019s expense on other grounds, depending upon the facts and circumstances of the case. Several federal courts of appeals have suggested that the Fifth Amendment\u2019s guarantee of due process could require the appointment of counsel on a case-by-case basis for individual aliens who are incapable of representing themselves due to \u201cage, ignorance, or mental capacity,\u201d although it is unclear whether any alien has been provided with appointed counsel on this basis to date. In addition, Section 504 of the Rehabilitation Act has been construed to require the appointment of \u201cqualified representatives\u201d for aliens who are \u201cmentally incompetent\u201d to represent themselves in removal proceedings. These representatives may be pro bono, or appointed at government expense, and they can include licensed attorneys as well as persons who are not attorneys.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R43613", "sha1": "f0250ce8dc95aa29d0cd6f30bdbd9fe826f37d55", "filename": "files/20160317_R43613_f0250ce8dc95aa29d0cd6f30bdbd9fe826f37d55.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R43613", "sha1": "8d54f2cd62fb49be6d5c59cbc73049874cc2c6ab", "filename": "files/20160317_R43613_8d54f2cd62fb49be6d5c59cbc73049874cc2c6ab.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc332876/", "id": "R43613_2014Jun20", "date": "2014-06-20", "retrieved": "2014-08-27T12:47:05", "title": "Aliens' Right to Counsel in Removal Proceedings: In Brief", "summary": "This report provides an overview of the various legal authorities governing aliens' right to counsel--as that term is broadly understood--in removal proceedings.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20140620_R43613_0675cc39c38c6998854cda02ca658d85a97ca6cd.pdf" }, { "format": "HTML", "filename": "files/20140620_R43613_0675cc39c38c6998854cda02ca658d85a97ca6cd.html" } ], "topics": [ { "source": "LIV", "id": "Illegal aliens", "name": "Illegal aliens" }, { "source": "LIV", "id": "Legal aid", "name": "Legal aid" }, { "source": "LIV", "id": "Legal fees", "name": "Legal fees" } ] } ], "topics": [] }