The Right to an Attorney in Immigration Court

In removal proceedings, like in a criminal case, the respondent (accused) has the right to be represented by an attorney. In immigration court, however, that right only extends so far. For instance, in immigration court, the government does not provide an attorney for those who cannot afford one. There is no public defender organization or system in place to provide respondent’s with immigration lawyers.

As a result, many respondents find themselves in the position of self-representation in immigration court. This is commonly known as appearing pro se. In this situation, the Immigration Judge has certain responsibilities dictated by federal regulations to protect the rights of the self-represented.

In a recent Board of Immigration Appeals decision, Matter of C-B- decided on August 15, 2012, the Board of Immigration Appeals reversed and remanded an Immigration Judge because the Judge did not follow the law in protecting the rights of a respondent who appeared, pro se, at his immigration hearing in a detained setting.

In this case the Immigration Judge made two critical errors. First, the Judge denied a continuance to the respondent when he advised the Judge that he had a change of heart and wanted more time to find an attorney to help him with his case. The respondent advised the Judge that he changed his mind from his initial choice to represent himself because of his family. The Judge denied this request and went forward with the case without affording the respondent an opportunity to seek legal counsel.

Second, the respondent expressed a fear of returning to his country because of the violence that exists on a daily basis. The Immigration Judge listened to the respondent and found that he did not qualify for asylum and did not give him an opportunity to apply for asylum. This was a mistake. In removal proceedings, according to law, if a respondent expresses a fear of returning to his or her home country, the Immigration Judge MUST explain to the respondent his or her right to apply for political asylum, make the political asylum forms available to the respondent, and continue the removal proceedings to allow the respondent to submit a political asylum, form I-589 and have the case heard on the merits.

As immigration lawyers, we see this occasionally in both the non-detained and detained settings where Immigration Judges are under extreme pressure to move along their cases that they forget or ignore their responsibilities to the people facing deportation from the United States.

It is the Board of Immigration Appeals’ responsibility to provide a check and balance to the immigration court system and in this case they did their job. They reversed the Immigration Judge and remanded the case thus protecting the rights of this individual facing deportation.

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