107 Iowa L. Rev. 1833 (2022)

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Abstract

Individuals who face removal from the United States confront a complex legal landscape and an enormous disadvantage when they lack representation. When a noncitizen is denied their right to counsel during a removal proceeding and seeks judicial review based on this violation, reviewing courts should presume that the denial of counsel prejudiced their case. Circuit courts are divided on whether noncitizens should be required to show prejudice to succeed in a claim that counsel was denied. The Second, Third, Seventh, Ninth, and D.C. Circuit Courts reason that prejudice is not required when noncitizens in removal proceedings are denied counsel because of the statutory and regulatory character of the right to counsel, the administrative principle that agencies are bound to comply with their own regulations, the outsized impact that the denial of counsel can have on all aspects of a case, and judicial efficiency. Conversely, and in a smaller body of case law, the Fourth, Fifth, Eighth, and Tenth Circuits treat the denial of the right to counsel primarily as a due process issue and, accordingly, require a showing of prejudice. Five additional factors weigh in favor of presuming prejudice when counsel is denied, including the high volume of immigration appeals reviewed by the courts that presume prejudice; federal courts’ willingness to presume prejudice in analogous contexts; public demand for government-appointed counsel for noncitizens; local and state-level access to counsel initiatives; and the need for equitable enforcement of the right to counsel. Moving forward, federal courts should follow the lead of those circuits that presume prejudice and, in so doing, uphold the fundamental right to counsel.