I. Introduction

In the U.S. immigration system,[1] foreign nationals[2] can significantly improve their chances of a positive outcome by having an attorney. In a review of 1.2 million removal cases, only 37% of immigrants had an attorney.[3] Of those who were detained, only 14% had an attorney.[4] Having an attorney in detention meant the foreign national was “four times [as] likely to be released from detention” and “11 times more likely to seek relief.”[5] Those detained were “twice as likely” to receive the relief they sought with their attorney; those never detained were “nearly five times” as likely.[6] Additionally, a 2020 study found that 67% of Americans surveyed support government-funded attorneys for those facing removal.[7]

This Comment argues that foreign nationals should be provided an attorney at all stages of the immigration process. From consular processing to expedited removal, an immigrant should be provided an attorney to help navigate our complex immigration system. Creating constitutional protections or expanding proposed legislative protections, which currently fall short by providing the right to counsel only in certain proceedings for certain individuals, may achieve this goal; however, the most realistic solution is at the local level. Part II of this Comment will start by explaining the different steps in the U.S. immigration system. It will then detail the Fifth Amendment’s and Sixth Amendment’s right to counsel and explain how it is currently interpreted for immigrants. Part III of this Comment will first argue that the Fifth and Sixth Amendments should apply to foreign nationals in the immigration process because of (1) the potential criminal convictions that arise from immigration questioning; (2) the similarities between criminal custodial interrogations and immigration interviews; and (3) the fact that removal should be classified as a punishment. Part III will then examine previous and current proposed legislation for comprehensive immigration reform that affects immigrants’ right to counsel. Finally, Part III reviews state and local programs that help provide counsel to immigrants and contains a proposal to achieve a state-based, nationwide commitment to providing counsel to all foreign nationals within the immigration system.

II. Background

To understand why foreign nationals need the right to counsel, it is necessary to understand both the U.S. immigration system that they must navigate and the foundation of the right to counsel. The immigration system involves many branching pathways at different physical locations inside and outside the United States.[8] The events that transpire during each step of the immigration process are different,[9] and the extent of the right to counsel at each step is different.[10] What is consistent, however, is that most foreign nationals who attempt to enter the United States will at some point experience one or more of these steps[11] and likely will not have counsel to assist them.[12]

A. Breaking Down the U.S. Immigration System

Often described as “broken,” the U.S. immigration system is incredibly complex and confusing.[13] The system is governed by the Immigration and Nationality Act (INA)[14] and is separated into different categories including family, employment, humanitarian, and diversity-based immigration.[15] Some foreign nationals may temporarily enter the United States through student visas, business visas, and visitor visas.[16]

If a foreign national has been granted admittance into the United States through any of the aforementioned categories or is seeking asylum, the foreign national may attempt to enter at a port of entry.[17] While the foreign national may have all the correct documents necessary to enter the United States or present an asylum claim, it is up to Customs and Border Protection (CPB) officers to grant admittance to the United States during inspection.[18] It is vital for foreign nationals to have the right to counsel during CBP inspections because decisions regarding a foreign national’s ability to enter and live within the United States are made by CBP officers,[19] and foreign nationals need legal counsel to understand and navigate the series of complex and unfamiliar immigration laws.

1. Consular Processing—Visas and Lawful Permanent Residence Status.

When foreign nationals apply to lawfully enter the United States from outside the United States, they are typically required to visit a U.S. consulate or embassy.[20] At the American embassy or consulate of their home country, foreign nationals must bring the required documentation to apply for a visa.[21] Once these foreign nationals attend their interview and are granted their visas, they may attempt to enter the United States.[22] Generally, for visitor visas, an interview is required for those between the ages of fourteen and seventy-nine.[23]

Foreign nationals seeking permanent immigration visas may also be required to complete consular processing. If a foreign national’s immigration petition has been approved and an immigrant visa number is available, the foreign national can apply for lawful permanent resident status.[24] If the foreign national applied for the immigrant visa from within the United States, the foreign national may apply for an adjustment of status without leaving the United States.[25] Conversely, if the foreign national applied for the immigrant visa from outside of the United States, the foreign national must visit a consular office in their home country to complete consular processing.[26] The foreign national and anyone immigrating with the foreign national must attend an interview at the consulate before the visa is granted.[27] The foreign national’s sponsor or petitioner does not participate in the interview.[28] Attorneys are not allowed to accompany their clients to immigrant visa interviews at American consulates.[29]

The interview questions asked to foreign nationals during consular processing depend on the type of visa the foreign national seeks. For example, student visa seekers are subject to questions regarding their intent to return home after graduation, and marriage-based visa seekers are subject to questions regarding their relationship and whether their marriage is bona fide.[30] Once foreign nationals have obtained the necessary visa to enter the United States, they are then subject to primary inspection at their chosen port of entry to the United States.[31]

2. Primary Inspection—The First Stop Within the United States.

If you have ever entered the United States from another country at a port of entry, whether immigrating to the United States or returning home from a trip, you were most likely the subject of a primary inspection by the CBP because all individuals arriving at a port of entry are required to be inspected.[32] All travelers must provide basic biographic information such as their name and travel documents.[33] Additionally, foreign nationals’ fingerprints may be taken during primary inspection.[34] TECS, CBP’s “information-sharing system,” contains information regarding each traveler’s “immigration, criminal, and national security background.”[35] The TECS system obtains this information from travelers during arrival and departure, and through different “federal, state, local, and international law enforcement entities.”[36]

During primary inspection, CBP officers check the information stored in TECS.[37] Simultaneously, the Automated Targeting System (ATS) calculates a “risk-based score” for each traveler.[38] If the traveler has a score above a certain threshold, the traveler is sent to secondary inspection.[39] If CBP determines a traveler is admissible to the United States, the traveler is allowed to enter.[40] Despite the ATS score, if CBP believes a traveler is inadmissible for any reason,[41] the traveler is referred to secondary inspection.[42] Primary inspection is typically done within a minute.[43] The Congressional Research Service estimated that primary inspections constituted 56% of immigration inspection workload in the United States.[44] There is no right to an attorney during primary inspection unless the traveler is being taken into custody for a criminal investigation.[45]

3. Secondary Inspection—Further Questioning of the Traveler.

If the ATS indicates a traveler is high-risk or the CBP official finds “derogatory information in TECS,” the traveler will be referred to secondary inspection.[46] Additionally, if the traveler’s conduct raises suspicion “through [the traveler’s] behavior, responses to questions, or suspicious documents,” CBP can refer the traveler to secondary inspection.[47] Furthermore, CBP can randomly select travelers for secondary inspection.[48]

During secondary inspection, CBP further questions the traveler and examines the traveler’s documents.[49] CBP can inquire about travel history, search belongings, take photographs, and obtain sworn statements during secondary inspection.[50] CBP then uses this information to determine whether the traveler should be admitted to the United States, denied from entering, or sent to deferred inspection.[51]

For immigration purposes, a foreign national’s application for admission to the United States can be withdrawn if the foreign national is found in violation of U.S. immigration law.[52] This withdrawal allows the foreign national to leave the United States, avoid a reentry bar, and reapply for admission at a later time.[53]

“[T]he seriousness of the immigration violation; previous findings of inadmissibility against the alien; intent on the part of the alien to violate the law; ability to easily overcome the ground of inadmissibility . . . ; age or poor health of the alien; and other humanitarian or public interest considerations”

are considered when deciding whether a foreign national can withdraw the admission application.[54] There is also no right to an attorney during secondary inspection unless the traveler is being taken into custody for a criminal investigation.[55]

4. Deferred Inspection—Insufficient Information.

If a traveler’s situation is such that an admissibility decision cannot be made during secondary inspection, CBP releases the traveler into the United States with instructions to later visit an immigration office near the traveler’s U.S. residence.[56] Deferred inspection is typically the result of incomplete documents and no “blatant [finding of a] violation of admissibility laws.”[57] Additionally, if an officer believes the traveler “can overcome a finding of inadmissibility” and post bond or obtain an inadmissibility waiver, the officer can release the traveler for deferred inspection.[58] Furthermore, officers can grant deferred inspection to travelers with a disability that “renders it impractical” for them to be inspected at the point of entry.[59] Generally, CBP does not provide the right to counsel during deferred inspection.[60]

5. Removal Proceedings—An Immigrant’s First, and Potentially Last, Opportunity to Be in U.S. Court.

If a foreign national is found in violation of U.S. immigration laws, the Department of Homeland Security (DHS) will press charges against the foreign national for the alleged violations.[61] An immigration judge employed by the Department of Justice’s Executive Office for Immigration Review (EOIR) then determines whether the foreign national is removable in a removal proceeding.[62] At these proceedings, the immigration judge may also determine whether the foreign national “qualif[ies] for protection or relief from removal.”[63]

DHS begins removal proceedings by serving the foreign national with a Notice to Appear (NTA).[64] If the foreign national does not appear for their first removal hearing, called the “master calendar hearing,” the immigration judge will rule in absentia.[65] If DHS proves with “clear, unequivocal, and convincing evidence that” the foreign national is removable, was served an NTA, and was provided notice of the hearing, then the immigration judge will order the foreign national removed.[66]

If the foreign national attends the master calendar hearing, the foreign national can “plead to the factual allegations and charge(s) of removability.”[67] “[O]n a case-by-case basis,” the immigration judge then finds whether the foreign national is removable based on the law and precedent.[68] If removable, the foreign national can apply for protection or relief from removal.[69] In these cases, the immigration court then schedules an “individual merits hearing” for the protection or relief to be argued by both the foreign national and the DHS counsel.[70] If the judge finds for the foreign national, the application for protection or relief will be granted.[71] During these proceedings, the foreign national is allowed the privilege of counsel—subject to the foreign national being able to afford an attorney.[72]

6. Expedited Removal—The Government Deciding Which Foreign Nationals Are Never Given an Opportunity in Court.

Before July 23, 2019, expedited removal allowed for immigration officers to remove foreign nationals within fourteen days of the foreign national’s entrance to the United States either at the border or within 100 miles of the border.[73] However, on July 23, 2019, the Trump Administration significantly expanded this power to allow for the expedited removal of those “living in the United States for two years or less” and encountered “anywhere in the United States.”[74] Expedited removal applies to “undocumented” foreign nationals or those who “have committed fraud or misrepresentation.”[75] Foreign nationals claiming asylum or fear of persecution are not subject to expedited removal.[76] In the past decade, between 35%–40% of all removals were expedited removals.[77] During the expedited removal determination, the immigration officer is the sole arbitrator.[78] The traveler is not given the opportunity to appear before an immigration judge, and the traveler is typically not given enough time to speak to an attorney.[79]

7. Appeals—The Last Stand.

Certain decisions by an immigration judge—including those related to exclusion cases, deportation cases, removal proceedings, recission of adjustment of status cases, and asylum proceedings—can be appealed to the Board of Immigration Appeals (BIA).[80] The BIA also hears appeals relating to administrative fines and penalties, and “[d]eterminations relating to bond, parole, or detention.”[81] Most decisions by the BIA can be appealed to a U.S. Courts of Appeals and, eventually, the Supreme Court.[82] Again, the foreign national’s representation is only a privilege, not a right.[83]

The Administrative Appeals Office (AAO) hears appeals arising from U.S. Citizenship and Immigration Services office decisions, including those decisions related to employment-based visa petitions, inadmissibility waivers, and reapplications for admission after removal.[84] At the AAO, foreign nationals can represent themselves pro se or be represented by an attorney.[85] Unfavorable decisions by the AAO can be reopened and reconsidered.[86]

Throughout this long and stressful immigration process, at no point does the foreign national have a guaranteed right to an attorney.[87] Additionally, between or during these steps, the foreign national may be held in detention with limited access to counsel.[88] The lack of a guaranteed right to an attorney severely hinders a foreign national’s ability to navigate this process—whether or not the foreign national has a strong case for admittance into the United States.[89] Providing those within the immigration system the right to an attorney would allow smoother navigation of the immigration system and cost savings for the United States.[90]

B. The Fifth and Sixth Amendment Right to Counsel

There are two constitutional sources of the right to counsel: The Fifth and Sixth Amendments. The Fifth Amendment provides the right to counsel to protect individuals from self-incrimination.[91] The Fifth Amendment has also been interpreted to provide the right to counsel for immigrants in removal proceedings at their own expense because of the right to due process.[92] The Sixth Amendment, on the other hand, provides the right to counsel after the commencement of criminal proceedings.[93]

1. Fifth Amendment Right to Counsel—The Right to Remain Silent.

One constitutional source of the right to counsel is the Fifth Amendment—although it does not explicitly state this right.[94] Chief Justice Earl Warren in Miranda v. Arizona articulated the “fundamental” nature of the Fifth Amendment right to counsel.[95] This right provides for an “individual’s right to choose between silence and speech” during interrogations.[96] In order to protect that right, an individual must be allowed to protect himself against the quick, overbearing nature of interrogations through the use of counsel.[97] Not only does the Fifth Amendment allow consultation with counsel before an interrogation, it also calls for counsel’s presence during questioning.[98]

In addition to supporting the individual’s Fifth Amendment rights, Chief Justice Warren also discussed the ancillary benefits of the presence of counsel.[99] These include reducing untrustworthiness, police coercion, and incomplete statements.[100] Counsel can also ensure that any statements by the counsel’s client or instances of police coercion are accurately testified to at trial.[101]

Furthermore, the Court also recognized that those who do not ask for counsel because they do not understand their rights are the ones who would benefit most from the presence of counsel.[102] The Court also found that the financial resources of the individual should have no bearing on their right to counsel because the Fifth Amendment applies equally to the rich and the poor.[103]

Thus, once an individual requests an attorney prior to or during questioning, the interrogation must stop “until an attorney is present.”[104] Chief Justice Warren adds that this does not mean a lawyer must be stationed at the police station;[105] instead, it simply means that an interrogation cannot proceed until a lawyer is procured to protect the individual’s Fifth Amendment right.[106]

Throughout Miranda, the Court emphasized that the “interrogation atmosphere” can bring about “evils.”[107] Individuals are placed in an “unfamiliar atmosphere and run through menacing police interrogations.”[108] While the interrogations are not always physically harmful, they are still “destructive of human dignity.”[109] Counsel, if requested, ensures that the words of the individual are freely and willingly provided in this “menacing” “government-established atmosphere.”[110]

The Court revisited Miranda rights in Mathis v. United States. In Mathis, the Court found that it was unconstitutional to introduce self-incriminating evidence from an individual who was not Mirandized.[111] The individual in question was in prison for a state conviction when government agents obtained statements from him for a “routine tax investigation” without informing him of his Miranda rights.[112] Those statements were used to convict the individual for “knowingly fil[ing] false [tax] claims against the Government.”[113] The Court found that “tax investigations frequently lead to criminal prosecutions” and that Miranda does not depend on “the reason why the person is in custody”; therefore, the Court found any evidence from the tax investigation obtained without Miranda warnings was inadmissible.[114]

2. Fifth Amendment Right to Counsel—Removal Proceedings.

Some courts have found that the Fifth Amendment also implicitly creates the right to counsel specifically for foreign nationals in removal proceedings at the foreign national’s expense. The foundation for this right is the due process clause of the Fifth Amendment.[115] The Supreme Court has also found that removal proceedings exert a “great hardship” on foreign nationals and can potentially “deprive[] [them] of the right to . . . live and work in” the United States.[116] Once they start to develop ties to the United States, foreign nationals may be afforded stronger constitutional rights over time.[117]

Furthermore, foreign nationals also have a statutory privilege to counsel during removal proceedings. Although foreign nationals have this statutory privilege, the privilege does not provide a government-appointed or subsidized attorney.[118] Under the INA, foreign nationals only have the privilege of an attorney at their own expense,[119] and this privilege only applies to removal proceedings—not in other contexts such as interviews or inspections.[120]

However, there are other statutory provisions that provide some assistance to foreign nationals in need of counsel. One such provision requires “unaccompanied . . . children who are or have been in the custody of” the Department of Health and Human Services or DHS to have an attorney “to the greatest extent practicable.”[121] Foreign nationals who apply for asylum must also be advised of their “privilege of being represented by counsel” and be provided a list of attorneys who have agreed to represent asylum seekers pro bono.[122]

3. Sixth Amendment Right to Counsel—Criminal Proceedings.

The Sixth Amendment guarantees the right to effective assistance of counsel for defendants in criminal trials.[123] However, this right “does not attach until a prosecution is commenced.”[124] The Supreme Court determined that commencement occurs at “points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”[125] This is the moment when “the government has committed itself to prosecute” and the “defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”[126]

The importance of the Sixth Amendment right to counsel mirrors that of the Fifth Amendment. A typical individual has little knowledge of the intricacies of the law and seldom the skill to argue it.[127] Counsel effectively functions “as a guide through complex legal technicalities.”[128] Justice Sutherland articulated this point in Powell v. Atlanta:

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have [sic] a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.[129]

Foreign nationals, however, are not granted the Sixth Amendment’s right to counsel in removal proceedings because removal proceedings are considered civil proceedings.[130] The Sixth Amendment only protects those under criminal prosecution; therefore, if removal proceedings are considered civil in nature, the Sixth Amendment will not apply.[131]

A significant reason why removal proceedings are not considered criminal in nature is that removal is not considered a punishment. The Supreme Court has held that removal is comparative to returning foreign nationals to their countries for not complying with immigration law rather than a “banishment.”[132] Moreover, the conditions of detention before removal proceedings have not been found to be punishment.[133] The government can detain an individual “to ensure his presence at trial,” and the detention facility in which a foreign national is held typically does not constitute punishment “no matter how . . . antiquated.”[134] Although detention prevents individuals from exercising their freedoms of movement, choice, and privacy, it is not considered punishment.[135]

III. Analysis

During each step in the immigration process, immigration officers or judges make monumental decisions regarding a foreign national’s future. During consular processing, an official is deciding whether to approve a visa or a lawful permanent residence application.[136] During primary inspection, a CBP officer decides whether to allow foreign nationals to proceed into the United States or hold them for further questioning.[137] During secondary inspection, a CBP officer decides whether to freely allow foreign nationals into the United States, to detain them in an immigration detention facility, or to expedite the foreign national’s removal.[138] During removal proceedings, an immigration judge decides whether to remove foreign nationals from the United States to their home countries.[139] Finally, during appeals, undesirable decisions for the foreign national are granted a second look.[140] During these procedures, the right to counsel should be afforded to a foreign national because significant, life-changing decisions are being made for the foreign national and the foreign national has the opportunity to present arguments against the government.[141]

A. The Constitution Providing Foreign Nationals the Full Right to Counsel at All Stages of the Immigration Process

Because the Fifth Amendment’s Miranda warnings also apply during civil questioning that could lead to criminal prosecution, a foreign national should be afforded the right to counsel during inspections or questioning.[142] Additionally, the similarities between criminal custodial interrogations and immigration questioning call for Fifth Amendment Miranda warnings to apply to immigration inspections and interviews.[143] Finally, because of the severe impact removal has on immigrants’ lives, removal should be considered a punishment and the Sixth Amendment should therefore apply to any proceedings resulting in the removal of a foreign national.[144]

1. Criminal Custodial Interrogations Versus Immigration Interviews and Procedures.

First, the Fifth Amendment right to counsel to prevent self-incrimination should apply to foreign nationals questioned or detained by the U.S. government for immigration purposes because the Fifth Amendment’s Miranda warnings also apply during civil questioning that could lead to criminal prosecution.[145] If a foreign national improperly enters the United States without inspection or while attempting to conceal or misrepresent facts, the foreign national can be subject to six months’ imprisonment for the first offense and two years for subsequent offenses.[146] If a foreign national marries with the intent to commit immigration fraud or establishes a commercial enterprise for similar reasons, the foreign national can be subject to five years’ imprisonment.[147] These criminal issues may be discovered when an individual is questioned by CBP officials or undergoes consular processing.[148]

In 2019, over 100,000 foreign nationals were criminally prosecuted for improper entry or reentry.[149] Conversely, the Internal Revenue Service (IRS) obtains “[a]pproximately 3,000 criminal prosecutions per year.”[150] In the southwest sectors of the U.S. border in 2018, 21% of apprehensions led to criminal arrests.[151] The IRS, on the other hand, converts approximately 56% of its initiated investigations into criminal convictions.[152] While the IRS’s conversion rate is higher, almost 100,000 more individuals per year are prosecuted for immigration offenses just on improper entry or reentry alone. Just as foreign nationals would be afforded an attorney if they were to be questioned for civil tax issues that may lead to criminal prosecution, foreign nationals should be afforded an attorney when questioned regarding civil immigration issues that may lead to criminal prosecution. Unfortunately, even though the holding in Mathis was clear, most courts considering civil–criminal immigration issues have failed to follow the Mathis reasoning.[153]

Second, while foreign nationals—especially those who are inadmissible to the United States or removable—may not be criminally charged while they are navigating the immigration system, they are held under similar custodial conditions. The Fifth Amendment right to counsel protection against self-incrimination applies when an individual is in custody.[154] “Custody” includes a “depriv[ation] of . . . freedom of action in any significant way.”[155] While the case-specific circumstances of custody are examined, “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”[156] There is some amount of flexibility when analyzing the restraint on an individual’s freedom to leave.[157]

Immigration inspections and interviews are similar to the criminal custodial interrogations detailed in Miranda, if not more extreme. For example, foreign nationals can be in secondary inspection for up to several hours.[158] During this time, their personal belongings—including electronics—may be searched without a warrant.[159] Documents that are attorney–client privileged material are also not immune from these searches.[160] During the secondary inspection, a CBP official may determine that foreign nationals should be held longer at a holding facility, which are often “inadequate for any overnight detention.”[161]

The holding facilities along the U.S. southern border frequently lack beds, heating, “food, water, and medical care.”[162] They are overcrowded, and individuals are typically held for twenty-four hours, but some detention centers average more than seventy-two hours.[163] CBP’s own policy states that “detainees should generally not be held for longer than 72 hours in CBP holding rooms or holding facilities.”[164] Some have compared these conditions to torture,[165] and the Arizona District Court found CBP cannot hold detainees whose processing is complete “longer than 48 hours, unless CBP provides conditions of confinement that meet basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessments performed by a medical professional.”[166]

These conditions are similar, if not worse, than criminal custodial conditions. The mental and physical effects on detainees can lead to the coercion described by Chief Justice Warren—the same coercion the Fifth Amendment is said to defend against.[167] To prevent this overbearing environment from affecting detainees’ abilities to make a sound legal decision regarding their immigration status, access to legal counsel should be mandatory.

Furthermore, whether detained during secondary inspection or in detainment facilities, foreign nationals are frequently forced to make significant decisions regarding their future. For example, to avoid detention, they are sometimes offered expedited removal.[168] Without a lawyer, a foreign national may not understand that agreeing to expedited removal includes accepting a five-year bar to reentry into the United States.[169] From that point, the only options for a foreign national are to either: (1) challenge the inadmissibility and expedited removal determination; or (2) file an I-212 waiver, waiving the five-year ban.[170] Unfortunately, if the foreign national had available access to an attorney, the foreign national would have been informed that, although he would be temporarily detained, he could have the opportunity to post bond[171] or be paroled.[172]

As stated by the Miranda Court, criminal custodial interrogations are incredibly overbearing—especially to those who do not understand their rights.[173] Whether rich or poor, an individual suffers the same psychological coercion, conditioning, and interrogation techniques.[174] The Court set out to alleviate and combat those concerns by requiring the presence of a knowledgeable attorney at the interrogation if requested.[175]

Unfortunately, these concerns have not been formally acknowledged nor provided to foreign nationals entering the United States and its immigration system, despite a significant number of foreign nationals not understanding the U.S. immigration system or its laws, not speaking English, and fleeing persecution.[176] Because of the reluctance by the courts to recognize Fifth Amendment rights for immigrants, Congress should pass Fifth Amendment-like legislation for immigrants in inspections, detention, or other custodial interrogations as further discussed in Part III of this Comment.

2. Removal Should Be Classified as a Punishment, Requiring the Right to Counsel.

Currently, removal is not considered a punishment.[177] However, in many ways, removal may result in consequences more harmful than incarceration. Not only are the foreign nationals removed from the life they have created and property they have earned in the United States, but foreign nationals also potentially face disastrous and dangerous consequences in their home country.[178]

Although the Supreme Court has reiterated that removal proceedings are civil proceedings and removal is not a criminal punishment,[179] the Court has noted the severity of removal and, in the context of criminal proceedings, the ability for the prospect of removal to impact a foreign national’s decision regarding a plea agreement.[180] While the Court still would not acknowledge removal as a “punishment,” it recognized that removal is a “penalty” that foreign nationals may find more impactful and damaging than incarceration.[181]

The semantics between “punishment” and “penalty” appear to be arbitrary. Imprisonment is a clear example of punishment.[182] Imprisonment, by definition, is “‘[t]o put in a prison,’ ‘to incarcerate,’ ‘[t]o confine a person, or restrain . . . liberty, in any way.’”[183] When foreign nationals are removed from the United States, their liberty is restrained as a result of their banishment. Although they may have entered the country without inspection or have broken other immigration laws, foreign nationals are still granted some constitutional rights.[184] If they are forced to leave, they will no longer have the same liberties they once possessed. This loss of liberty should be considered a “punishment” in the criminal context.

Furthermore, detainment of foreign nationals is comparable to pretrial detainment and, thus, should also be considered a criminal punishment, for imprisonment also includes pretrial detention.[185] In pretrial detainment, individuals are held in city or county jails.[186] Like individuals in pretrial detention, those in immigration detention have restrictions on freedom of movement, choice, and privacy.[187] Detainment in both contexts can be avoided if the individual is given the opportunity to and can post bail or bond.[188] Simply because one form of detention is not labeled a “punishment” and is associated with removal does not mean that it is any less of a detainment or a restriction of liberty, as pretrial detention is in the criminal context, the latter in which the Sixth Amendment protects the right to counsel.[189] Because of this, the Sixth Amendment right to counsel should apply to foreign nationals in any removal proceedings or in danger of facing removal proceedings. However, the reluctance of the courts to acknowledge that removal is a “punishment” prevents this from being a realistic outcome. Therefore, the next best solution would be congressional immigration reform.

B. Previous and Current Attempts to Provide Immigrants the Right to Counsel Fall Short

1. Senate Bill 744.

Since the early 2000s, Congress has repeatedly attempted to enact comprehensive immigration reform.[190] In 2006, Republican Senator Arlen Specter and Democratic Senator Edward Kennedy introduced legislation for comprehensive immigration reform that passed, and stayed, in the Senate.[191] In 2007, similar legislation was reintroduced by Senator Harry Reid but failed to pass the Senate.[192] These two Senate bills, 2006 S. 2611 and 2007 S. 1639, did not consider granting immigrants the right to counsel.[193] Then, in 2013, eight Senators, the “Gang of Eight,” introduced a new, bipartisan bill for U.S. immigration reform: Senate Bill 744 (S. 744).[194] This bill included reform for the right to counsel for immigrants, but only for “unaccompanied minor children, immigrants with serious mental disabilities, and other particularly vulnerable individuals.”[195]

While S. 744’s appointment of counsel for children and those with mental disabilities seemed to be a step toward substantially awarding more rights to immigrants, a closer look finds that it may not have done much at all. S. 744’s appointment of counsel occurred at the discretion of the Attorney General.[196] Because the Attorney General would delegate this power to immigration judges, the judges would determine whether foreign nationals are “qualified” to receive the right to counsel.[197] However, unless all foreign nationals were provided counsel before this determination, the determination would be made without the presence of counsel to defend and advise the foreign national, and there would be no protection against erroneous rulings.[198] Without protection at the very first interaction with immigration officials, a foreign national’s case may fall apart before the foreign national has a chance to consult with an attorney.

Additionally, the bill provided for the creation of “Legal Orientation Programs” to educate foreign nationals on relevant U.S. immigration law.[199] This education would include helping foreign nationals “make[] informed and timely decisions regarding their removal and eligibility for relief from removal.”[200] It would also require that these programs be available within five days of the foreign national’s detention.[201]

These programs, however, are not comparable to legal representation. While it would be beneficial for foreign nationals to obtain more information regarding their situation, nothing can replace an attorney providing legal advice. While one would hope these programs provide nonbiased information regarding the immigration system and an immigrant’s outlook, those administering the program could possibly choose to influence detainees’ decisions. These officials may also not have the foreign national’s best interest in mind—unlike attorneys professionally responsible for fighting for their clients.

Unfortunately, S. 744 was not considered by the House of Representatives.[202] However, in response to S. 744, the New York City Bar Association (City Bar) sent a letter to the U.S. Senate Judiciary Committee arguing for further action to be taken in regard to the availability of counsel for immigrants.[203] In the letter, the City Bar argued for free counsel for all those in removal proceedings who could not afford counsel.[204] The City Bar cited that 76% of Americans wanted immigrants to have access to counsel if they were in danger of being removed.[205] Citing the Supreme Court, the City Bar emphasized that removal is more than a civil penalty because of the “higher stakes” involved—banishment from “all that makes life worth living.”[206]

The City Bar argued more than just an emotional plea—it claimed economic interests as well.[207] When foreign nationals are removed, their loss of businesses and jobs affect the economy.[208] If parents are removed without their children, the children are sent to foster care, which generates economic and social costs.[209] The City Bar also noted that most states are required to appoint counsel for termination of parental rights in circumstances of abuse or neglect.[210] Furthermore, the letter detailed that, by allowing foreign nationals to consult with counsel, the government can cut down the cost of unnecessary court proceedings, reduce detention times, and reduce the costs of foster care required for separated children.[211]

Finally, the letter called for the right to counsel for those set to undergo expedited removal and those attempting to enter the United States for humanitarian reasons.[212] The letter detailed the consequences of expedited removal and the lack of avenues overturning an expedited removal order.[213] To ensure a “fair and efficient adjudication,” the City Bar called for the government to provide counsel for those subjected to expedited removal.[214] Arguing for the right to counsel for those seeking humanitarian relief, the City Bar noted how these claimants may need help due to trauma.[215] These individuals are often communicating with government immigration officials days after escaping abuse, danger, and persecution.[216] To better articulate their claims, these foreign nationals should be afforded counsel, who can aid in their possibility of being released on bond and not suffer through detention.[217]

Expanding the City Bar’s economic argument to the federal level, it would be economically beneficial for the federal government to create an immigration public defender’s office. It would cost an estimated $208 million a year to provide an attorney for every indigent immigrant in removal proceedings.[218] The government would save approximately $173 million per year in detention costs and $31 million per year in other costs such as foster care and legal orientation programs.[219] While these numbers are only an estimate, a program like this could pay for itself.

The federal government sees similar cost savings with its Legal Orientation Program (LOP): “[T]he LOP provides detainees with vital information about the removal process and [their] rights . . . .”[220] This program saved almost $20 million in detention costs, alleviated some of the immigration court backlog, and decreased in absentia removal orders.[221]

Utilizing a public defender program for those subject to expedited removal or inspections would increase the program cost, but it could also increase government savings that offset the costs. By providing the right to counsel at primary inspections, the government could save more in detention costs and unnecessary removal proceedings. If counsel is only provided in the middle of the immigration process, however, there are significant unnecessary costs still being spent up until that point.

While the suggestions presented by the City Bar’s letter should be implemented, they stop too short. Foreign nationals at all stages of the immigration process should be provided the right to counsel, not just those in removal proceedings. If assisting those in removal proceedings would create an economic and social benefit, helping those in inspections would provide a greater benefit because providing counsel at the first opportunity prevents unnecessary administrative costs, court proceedings, and hardship on the immigrants.

Since the 2020 election, President Joe Biden has called for the strengthening and expansion of access to legal counsel—specifically for civil issues and pro bono services. With the goal of “ensuring that all persons in this country enjoy the protections and benefits of our legal system,” President Biden began revitalizing the White House Legal Aid Interagency Roundtable (LAIR) established under the Obama Administration to bring together federal agencies to “raise federal agencies’ awareness of how civil legal aid can help advance a wide range of federal objectives.”[222] Previously, LAIR recognized the importance of providing legal counsel to those in immigration proceedings. Agencies associated with LAIR created programs to prevent immigration representation scams, to provide access to representation for vulnerable populations, and to increase language services in state courts.[223] If President Biden is truly calling for an “increase [in] the availability of meaningful access to justice,” LAIR and its affiliated government agencies should work to provide meaningful access to attorneys at the earliest possible moment for foreign nationals.[224]

Furthermore, President Biden specifically called for the “moderniz[ation]” of the U.S. immigration system.[225] Advocating to “[i]mprove the immigration courts,” President Biden seeks to provide counsel to “children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims” through the U.S. Citizenship Act of 2021 (2021 Bill).[226] The 2021 Bill would revise 8 U.S.C. § 1362, the statute providing the privilege to counsel in removal proceedings, to (1) allow the Attorney General to appoint counsel in immigration proceedings; (2) ensure those in detention or at border facilities have access to counsel; and (3) require government-funded appointment of counsel in certain proceedings for indigent individuals, children, individuals with disabilities, abuse victims, pregnant women, and parents of U.S. citizen minors.[227] Funding for these appointments would be created by adding a $25 surcharge to any fee established by immigration law.[228]

On its own, the first provision, which would allow the Attorney General to appoint counsel, does not ensure any guaranteed right to foreign nationals in the immigration system.[229] The second provision, ensuring only “access to counsel” at “detention and border facilities,” also does not appear to guarantee any right to counsel on its own.[230] Only foreign nationals fortunate enough to have counsel will benefit because it only provides “access to counsel.”[231] While this would be an immense assistance to those fortunate enough to have counsel, for those who are less fortunate, this still does not guarantee the right to counsel. However, when combined with the third provision, these provisions could significantly increase access to counsel for a larger population.

The third provision, much like the previously proposed S. 744, focuses on providing the right to counsel to particularly vulnerable individuals; however, where S. 744 focused on removal proceedings and a limited population, the 2021 Bill appears to have a broader scope. Not only does the 2021 Bill reference “any proceeding conducted under section 235, 236, 238, 240, or 241 or any other section of this Act, and in any appeal proceedings before the Attorney General from any such proceedings,” it calls for government-funded counsel “to represent any noncitizen financially unable to obtain adequate representation in such proceedings.”[232] Section 235 governs inspection and expedited removal; section 236 governs detention; section 238 governs expedited removal for those convicted of aggravated felonies; and sections 240 and 241 govern removal proceedings and subsequent detentions.[233] Therefore, it appears any foreign national who cannot afford counsel would be provided an attorney in these proceedings.

However, the 2021 Bill targets only “proceedings,”[234] which is most likely inapplicable to foreign nationals undergoing primary inspection, secondary inspection, or consular processing. While neither the current INA nor the 2021 Bill specifically define “proceedings,” the plain meaning of “proceeding” is “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.”[235] Additionally, within the 2021 Bill, “proceedings” is frequently used in reference to removal proceedings and judicial or appellate settings.[236] As written, the provision requiring access to counsel for vulnerable individuals will most likely not be interpreted to affect those in inspections or consular processing unless formal proceedings have commenced. To better clarify when this right to government-funded counsel applies, “proceedings” should be defined in this section of the 2021 Bill. Additionally, to encompass all stages of the immigration process, not only should “proceedings” be impacted, but any detention, questioning, or immigration interviews should also be included in this provision.

Furthermore, in regard to appellate proceedings, the 2021 Bill only applies to those proceedings before the Attorney General.[237] These proceedings would include only appellate proceedings before the BIA.[238] The Attorney General can only approve marking AAO decisions as precedential[239] and represent the United States in appeals to circuit courts and the Supreme Court.[240] Therefore, not only does the 2021 Bill avoid representation on the front end of the immigration process, the 2021 Bill also avoids representation at the back end with appeals to the AAO or federal appellate courts. As previously discussed, providing access to counsel for foreign nationals throughout the entire immigration process is essential. Ignoring the right to counsel during any important stage of the immigration process hinders immigrants during those stages that do provide for counsel.

President Biden also supports another bill, the American Dream and Promise Act of 2021 (Dream Act of 2021), which also includes provisions regarding the right to counsel.[241] The Dream Act of 2021 provides certain foreign nationals with a path to receive permanent resident status.[242] In the Dream Act of 2021, an applicant can seek judicial review of an adjustment of status application’s provisional denial and, if requested, shall be appointed counsel funded by the government.[243] While this provision is niche, it does target an important aspect of immigration proceedings that is often ignored: federal court appellate proceedings. The sentiment of this provision should be expanded to apply beyond foreign nationals that fit specific requirements and are seeking permanent resident status. Any appeal regarding immigration status—whether at the BIA, AAO, or circuit courts—should require the appointment of counsel.

As of October 2021, the 2021 Bill is still in its infancy as it has only been introduced to the House of Representatives and “[r]eferred to the Subcommittee on Immigration and Citizenship”;[244] the Dream Act of 2021, conversely, has passed the House and is currently in the Senate, where it was referred to the Committee on the Judiciary.[245] Significant amendments could be incorporated to either bill—potentially expanding or reducing the right to counsel for foreign nationals. Although, as seen with previous attempts at comprehensive immigration reform, realistically, the 2021 Bill and the Dream Act of 2021 may never reach the President’s desk. Therefore, a local course of action may be the most realistic solution.

C. Proposal: Pilot Programs Established by States or Local Governments to Provide Free Guaranteed Counsel for Foreign Nationals in the U.S. Immigration System

Scholars have contemplated and analyzed several different proposals to expand the right to counsel to foreign nationals in the immigration system. These proposals include allowing representation by accredited nonlawyer representatives,[246] new DHS regulations,[247] and local-level advocacy.[248] Because comprehensive, nationwide immigration reform will be challenging to implement, foreign nationals’ right to counsel should be established at the smaller scale laboratories of democracy: States.

State and local actions have improved foreign nationals’ access to counsel. To start, many municipalities and states have funded immigrant representation programs. In 2020, for example, Harris County, Texas, allocated $2 million,[249] the California Department of Social Services allocated $45 million,[250] and Prince George’s County, Maryland, allocated $500,000[251] toward legal services for foreign nationals. These funding efforts allow foreign nationals facing removal or detention, or seeking other immigration remedies, to seek out pro bono legal services.[252]

Some states are also pursuing legislation to assist foreign nationals in the immigration system. In August 2021, Illinois passed a bill to allow public defenders to “act as attorney[s] to noncitizens in immigration cases” within “counties with a population over 3,000,000.”[253] This follows what Alameda County, San Francisco, and New York City have implemented in respect to public defenders representing individuals in immigration proceedings.[254] Additionally, as of October 2021, a bill is pending amendments in the Illinois Senate that would create a “Task Force on Counsel in Immigration Proceedings.”[255] This Task Force would “investigate the implementation of universal representation” for those in proceedings to seek relief from removal or to challenge an arrest or detention, and provide a recommendation on how to provide representation.[256]

This type of legislation is a step in the right direction to provide counsel for as many foreign nationals as possible. However, these bills will still fall short of the ultimate goal to provide foreign nationals access to counsel at the earliest possible moment because these bills focus on representing foreign nationals already in immigration proceedings. By that time, the foreign national has already navigated many parts of the immigration system without counsel, leading to adverse effects on their case or longer-than-necessary detainment. Additionally, without requiring that a foreign national be provided an attorney, public defenders stressed for resources will have to pick and choose which cases to represent.[257]

Local organizations also help encourage individuals to become immigration advocates and provide counsel to those in the immigration system. Some law schools have immigration clinics that allow law students to assist foreign nationals in different stages of the immigration system.[258] Another example, the Immigrant Justice Corps (IJC), was created by Judge Robert Katzmann, Chief Judge of the U.S. Court of Appeals for the Second Circuit.[259] “IJC’s mission is to recruit, train, and populate the immigration field with the highest quality legal advocates,” and places these advocates in “legal services and community-based organizations where they can make the greatest difference.”[260] IJC’s boasts “a 92% case success rate . . . in contrast to a 3% success rate when a detained immigrant is without counsel.”[261] These successful local organizations are incredibly valuable to those who cannot afford counsel, but realistically, a larger scale project is required to provide access to counsel for all foreign nationals within the immigration system.

In its letter to the Senate Judiciary Committee, the City Bar proposed that counsel should be appointed for those in removal proceedings who could not afford an attorney.[262] This would be done through the creation of a public defender’s office specifically for immigration purposes,[263] and the program would be independent and have “direct granting authority.”[264] Outside of constitutional or statutory reform, a public defender’s office for all foreign nationals at all stages of the immigration system would be the ideal solution to assist those within the complex American immigration system.

New York has already taken the first step in this type of immigration reform. There, the state partnered with the Vera Institute of Justice to establish the “first and largest public defender program in the [United States] for detained immigrants facing deportation”—the New York Immigrant Family Unity Project (NYIFUP).[265] The program “provides legal representation to every detained and unrepresented immigrant in the state of New York whose income does not exceed 200% of the federal poverty guidelines.”[266] It is funded through the New York Liberty Defense Project.[267] The program has already saved individuals from removal who will in turn contribute a combined “$2.7 million in federal, state, and local taxes each year.”[268]

While a state stands to gain economically from creating an immigration public defender program, as shown by New York’s implementation, such programs would also benefit states in other aspects. As the New York City Bar stated in its letter, providing access to an attorney keeps families together and saves people from humanitarian crises.[269] Additionally, the states would be providing access to counsel to “the [person] who most needs counsel,” which is, in part, a foundation of the constitutional right to counsel. [270] Ideally, a program like NYIFUP could be expanded to and implemented in other jurisdictions. The expansion should include representation for foreign nationals outside of removal proceedings, such as those in inspections or detention.

IV. Conclusion

While comprehensive immigration reform is difficult to achieve—especially during the current tumultuous political climate—it should not be abandoned simply because it is difficult. The lives of immigrants often depend on their ability to access counsel. Whether it is a foreign national seeking asylum at the border or a foreign national currently in removal proceedings, each should be granted the right to counsel to help navigate our complex and confusing immigration system.

Because civil immigration issues could lead to criminal prosecution, the Fifth Amendment should apply to immigration questioning. Comparing criminal interrogations to immigration interviews, the coercion and atmosphere of fear the Supreme Court claimed the Fifth Amendment protected is also apparent in immigration interviews. While the Fifth Amendment specifically targets criminal proceedings, the sentiment it protects should be a protection offered to all who are interrogated by the government. Similarly, while the Sixth Amendment right to counsel specifically protects individuals in criminal proceedings, it should also apply to immigration proceedings. Immigration proceedings that threaten removal should not be classified as civil cases, for they are threatening the liberty of those who are seeking a better life for themselves in the United States. Not only do these proceedings potentially end with removal, but these proceedings also typically start with detention. Not much different than pretrial detention, which has the right to counsel, these immigration detentions should have the right to counsel attached to them as well.

While President Biden supports current legislation that would be an immense improvement to the right to counsel for immigrants, passing comprehensive immigration reform is difficult to achieve, as seen with S. 744. Because of the realistic difficulties in expanding the constitutional or statutory right to counsel for immigrants, the states or local municipalities should take initiative and implement their own right to counsel legislation or public defender programs. New York’s current Immigrant Family Unity Project is the model that other states should take after. The significant positive economic and humanitarian impact from the Immigrant Family Unity Project shows that programs like these would benefit the United States. However, these programs should be extended to apply to all foreign nationals at all stages of the immigration process.

Nasim Emamdjomeh

  1. The facts in the abstract are taken from the accounts of 110 women and children held in immigration holding cells. In the Freezer, Hum. Rts. Watch (Feb. 28, 2018), https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-cells [https://perma.cc/YRP5-55T6].

  2. The term “alien” has been criticized as a “dehumanizing slur,” and there is movement to purge this term from immigration law. Nicole Acevedo, Biden Seeks to Replace ‘Alien’ with Less ‘Dehumanizing Term’ in Immigration Laws, NBC News (Jan. 22, 2021, 2:34 PM), https://www.nbcnews.com/news/latino/biden-seeks-replace-alien-less-dehumanizing-term-immigration-laws-n1255350 [https://perma.cc/3Z7S-C3F8]; see also The Dehumanizing History of the Words We’ve Used to Describe Immigrants, Foster, https://www.fosterglobal.com/blog/the-dehumanizing-history-of-the-words-weve-used-to-describe-immigrants/ [https://perma.cc/GU9R-RP3Y] (last visited Sept. 30, 2021). This Comment will adopt the use of an alternative term “foreign national.” See Acevedo, supra.

  3. Ingrid Eagly & Steven Shafer, Am. Immigr. Council, Access to Counsel in Immigration Court 5, 7, 23 (2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/access_to_counsel_in_immigration_court.pdf [https://perma.cc/7AWS-2DBW].

  4. Id. at 7, 9, 23.

  5. Id. at 2.

  6. Id. at 3.

  7. Vera Inst. of Just., Public Support in the United States for Government-Funded Attorneys in Immigration Court 4, 5 (2021), https://www.vera.org/downloads/publications/taking-the-pulse-national-polling-v2.pdf [https://perma.cc/J72A-FHZY] (finding that this number increased to over 75% when the idea was presented as providing “attorneys for everyone”).

  8. See infra Section II.A.

  9. See infra Section II.A.

  10. See infra Section II.A.

  11. See Abby Budiman, Key Findings About U.S. Immigrants, Pew Rsch. Ctr. (Aug. 20, 2020), https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/ [https://perma.cc/B3RK-FUHE]. Out of the 45 million individuals residing in the United States who were born outside the United States, there are approximately 10.5 million unauthorized immigrants. Id. (presenting data from 2018 and 2017). These unauthorized immigrants also include those protected under Deferred Action Childhood Arrivals and pending asylum cases. Id.

  12. See infra Section II.A.

  13. Fix Our Broken Immigration System, U.S. Conf. of Mayors, https://www.usmayors.org/2020-vision/fix-our-broken-immigration-system/ [https://perma.cc/64EW-N2UX] (last visited Oct. 11, 2021); see also Lomi Kriel, How Inconsistent Policies and Enforcement Have Created False Hope for Migrants at the Border, Tex. Trib. (May 13, 2021, 5:00 PM), https://www.texastribune.org/2021/05/13/biden-border-policy-migrants/ [https://perma.cc/MR3H-L339] (“[E]ven seasoned experts can’t always determine who is allowed in [at the border] and who isn’t.”).

  14. Am. Immigr. Council, How the United States Immigration System Works 1 (2019), https://www.americanimmigrationcouncil.org/sites/default/files/research/how_the_united_states_immigration_system_works_0.pdf [https://perma.cc/QCJ9-SB2V]. The INA is documented under Title 8 of the U.S. Code. 8 U.S.C. §§ 1158(d)(4), 1182, 1225, 1325, 1362.

  15. Am. Immigr. Council, supra note 14, at 1.

  16. How to Enter the U.S., USA, https://www.usa.gov/enter-us [https://perma.cc/BLV2-ZM9R] (Sept. 14, 2020).

  17. Am. Immigr. Council, supra note 14, at 6.

  18. How to Enter the U.S., supra note 16.

  19. Id.

  20. How to Apply for a US Visa?, VisaGuide, https://visaguide.world/us-visa/how-to-apply-for-us-visa/ [https://perma.cc/4VGJ-HJ87] (last visited Oct. 11, 2021). The United States generally allows visa-less travel to the United States for citizens of Canada and Bermuda, citizens of the Visa Waiver countries, and Mexican and Canadian citizens working in the United States as North American Free Trade Agreement professionals. Travel Without a Visa, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/travel-without-a-visa.html [https://perma.cc/DHF4-K279] (last visited Sept. 30, 2021).

  21. How to Apply for a US Visa?, supra note 20.

  22. Visitor Visa, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visitor.html [https://perma.cc/AP7N-Y2J8] (last visited Oct. 3, 2021).

  23. See id.

  24. Consular Processing, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing [https://perma.cc/36GV-DZB2] (May 4, 2018). However, if foreign nationals have grounds for inadmissibility, they must apply for a waiver to waive the inadmissibility grounds. I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/i-212 [https://perma.cc/L8CN-P8JD] (Mar. 22, 2021).

  25. Consular Processing, supra note 24.

  26. Id.

  27. Step 11: Applicant Interview, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-10-prepare-for-the-interview/step-11-applicant-interview.html [https://perma.cc/D5RE-EMX9] (last visited Sept. 30, 2021).

  28. Id. A sponsor is an individual “legal[ly] responsib[le] for financially supporting the . . . [foreign national], generally until they become U.S. citizens or are credited with 40 quarters of work.” Affidavit of Support, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/green-card/green-card-processes-and-procedures/affidavit-of-support [https://perma.cc/3TZ7-97JL] (Mar. 19, 2021). The petitioner is “[a] U.S. citizen or lawful permanent resident family member or employer (or the employer’s agent) who files a family-based or employment-based immigrant visa petition [for the foreign national].” Step 1: Submit a Petition, U.S. Dep’t of State, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition.html [https://perma.cc/7MHK-6XSJ] (last visited Sept. 30, 2021).

  29. Ariel Brown, Immigrant Legal Res. Ctr., Preparing Clients for Immigrant Visa Interviews at U.S. Consulates 1 (2018), https://www.ilrc.org/sites/default/files/resources/prepare_clients_visa_intrvws_us_consul-20181105v2.pdf [https://perma.cc/Q4XN-3GHV].

  30. Elizabeth Rogers, The Day of Your Consular Interview for a U.S. Visa, NOLO, https://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter13-7.html [https://perma.cc/6YNY-UFXK] (last visited Sept. 26, 2021).

  31. Consular Processing, supra note 24.

  32. Lisa Seghetti, Cong. Rsch. Serv., R43356, Border Security: Immigration Inspections at Ports of Entry 6 (2015), https://fas.org/sgp/crs/homesec/R43356.pdf [https://perma.cc/6MB4-TAXG].

  33. Id. at 10.

  34. Ruth Ellen Wasem et al., Cong. Rsch. Serv., RL 32399, Border Security: Inspections, Practices, Policies, and Issues 11 (2004), https://apps.dtic.mil/sti/pdfs/ADA457906.pdf [https://perma.cc/P3KQ-A3X3].

  35. Seghetti, supra note 32, at 8, 10 (“TECS” is not an acronym).

  36. Valerie Isbell, U.S. Dep’t of Homeland Sec., Privacy Impact Assessment for the TECS System: CBP Primary and Secondary Processing 9 (2010) https://www.hsdl.org/?view&did=688577 [https://perma.cc/R97X-HR2W].

  37. Seghetti, supra note 32, at 10.

  38. Id. at 8, 10.

  39. Id.

  40. Id. at 11.

  41. Inadmissibility can be found on health, criminal, security, public charge, labor certification, illegal entry, and other miscellaneous grounds. 8 U.S.C. § 1182.

  42. Seghetti, supra note 32, at 11.

  43. Wasem et al., supra note 34, at 10.

  44. Id. at 54 (reporting data from 2002).

  45. U.S. Customs and Border Protection Inspector’s Field Manual 8 (Charles M. Miller, ed.), https://www.shusterman.com/pdf/cbpinspectorsfieldmanual.pdf [https://perma.cc/VG2P-UGBR].

  46. Seghetti, supra note 32, at 12.

  47. Id.

  48. Id.

  49. Wasem et al., supra note 34, at 11.

  50. U.S. Dep’t of Just., Audit Report: The Immigration and Naturalization Service’s System Data Pertaining to Secondary Inspections at Selected Preclearance Airports 1, https://oig.justice.gov/reports/INS/a0111/final.pdf [https://perma.cc/URV5-32YC].

  51. Wasem et al., supra note 34, at 11–12.

  52. Id. at 12.

  53. Id. Reentry bars can range from three years to a permanent bar. Unlawful Presence and Bars to Admissibility, U.S. Citizenship & Immigr. Servs., https://www.uscis. gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility [https://perma.cc/JW8Y-EN2G] (July 23, 2020).

  54. Wasem et al., supra note 34, at 11–12 (quoting 5 Charles Gordon et al., Immigration Law and Procedure §§ 61.7–61.02 (2005)).

  55. U.S. Customs and Border Protection Inspector’s Field Manual, supra note 45, at 8.

  56. Wasem et al., supra note 34, at 12.

  57. Id.

  58. 8 C.F.R. § 235.2 (2021).

  59. Id. The officer shall also grant deferred inspection to those under the guardianship of the disabled traveler and family members accompanying the disabled traveler if their admissibility depends on the testimony of the disabled traveler. Id.

  60. Am. Immigr. Council, CBP Restrictions on Access to Counsel 4, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/access_to_counsel_cbp_foia_factsheet.pdf [https://perma.cc/H7NH-ZFU2]. Officers do have a right to make individual exceptions to this rule; however, the attorney may only observe and act as a consultant, not answer questions. Id.

  61. U.S. Dep’t of Just., Executive Office for Immigration Review: An Agency Guide 2 (2017) [hereinafter An Agency Guide], https://www.justice.gov/eoir/page/file/eoir_an_agency_guide/download [https://perma.cc/89UN-9W48]. A foreign national can be sent to removal proceedings if he is arriving in the United States, present within the United States without having gone through inspection, or present within the United States having been admitted. Jack H. Weil, Burdens of Proof in Removal Proceedings 1 (n.d.), https: //trac.syr.edu/immigration/reports/211/include/II-06-training_course_burden_of_proof.pdf [https://perma.cc/KP9Z-RDFA]. These distinctions are important because they affect the burden of proof and bond redetermination. Id. How the foreign national is classified is a question of law, thus determined solely by the immigration judge. Id.

  62. 8 C.F.R. §§ 235.2, 1003.0(b).

  63. An Agency Guide, supra note 61, at 1.

  64. Id. at 2. The NTA contains information regarding “(1) the removal proceedings; (2) the alleged immigration law violations; (3) the ability of the alien to seek legal representation at no expense to the government; and (4) the consequences of failing to appear at scheduled hearings.” Id.

  65. Id.

  66. Id.

  67. Id.

  68. Id. at 2, 6.

  69. Id. at 2. Relief can include asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, adjustment of status, voluntary departure, or termination. Id. at 2–5.

  70. Id. at 2.

  71. Id.

  72. Matter of Lozada, 19 I. & N. Dec. 637, 638 (B.I.A. 1988).

  73. Am. Immigr. Council, A Primer on Expedited Removal 2 (2019), https://www.americanimmigrationcouncil.org/sites/default/files/research/primer_on_expedited_removal.pdf [https://perma.cc/H3AP-FGEH].

  74. Challenging the Expansion of Expedited Removal, Am. Immigr. Council, https:/ /www.americanimmigrationcouncil.org/litigation/expedited-removal-litigation [https://perma.cc/7R6C-JGY3] (last visited Sept. 26, 2021) (indicating that legal proceedings are currently pending regarding the expansion); Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,414 (July 23, 2019).

  75. A Primer on Expedited Removal, supra note 73, at 1.

  76. See 8 U.S.C. § 1225(b)(1)(A)(i).

  77. Katherine Witsman, U.S. Dep’t of Homeland Sec., Annual Report: Immigration Enforcement Actions: 2017 9 (2019) https://www.dhs.gov/sites/default/files/publications/enforcement_actions_2017.pdf [https://perma.cc/F9QV-5KSH] (finding that expedited removals were approximately 40% of all removals from 2012 to 2016 and dropped to 35% in 2017). An expedited removal order cannot be appealed except for habeas reviews regarding (1) whether the traveler is a U.S. citizen, (2) whether the traveler was subject to expedited removal, and (3) whether the traveler is a lawful permanent resident, is a refugee, or was granted asylum. Am. Immigr. Council et al., Project, Expedited Removal: What has Changed Since Executive Order No. 13767, Border Security and Immigration Enforcement Improvements (Issued on January 25, 2017) 4 (2017), https //www.nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/gen/2017_17Feb-expedited-removal.pdf [https://perma.cc/NJ8J-Q72U]. However, it is possible to file a motion to reopen or reconsider the expedited removal order. Id.

  78. A Primer on Expedited Removal, supra note 73, at 1.

  79. Id.

  80. 8 C.F.R. § 1003.1(b).

  81. Id. § 1003.1(b)(4), (7).

  82. See Board of Immigration Appeals, U.S. Dep’t of Just., https://www.justice.gov/eoir/board-of-immigration-appeals [https://perma.cc/KH2D-69YV] (Sept. 14, 2021).

  83. EOIC Policy Manual 2.3 - Attorneys, U.S. Dep’t of Just., https://www.justice.gov/eoir/eoir-policy-manual/iii/2/3 [https://perma.cc/4WV9-CQYS] (Dec. 22, 2020).

  84. AAO Practice Manual ch. 1, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/administrative-appeals/aao-practice-manual/chapter-1-the-administrative-appeals-office [https://perma.cc/WEG4-FJLV] (July 11, 2018).

  85. AAO Practice Manual ch. 2, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/administrative-appeals/aao-practice-manual/chapter-2-representation-of-parties-before-the-administrative-appeals-office [https://perma.cc/FJ8J-6G3J] (Jan. 3, 2019).

  86. AAO Practice Manual ch. 4, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/administrative-appeals/aao-practice-manual/chapter-4-motions-to-reopen-and-reconsider [https://perma.cc/WA9M-97GP] (Mar. 11, 2019).

  87. EOIC Policy Manual 2.3 - Attorneys, supra note 83.

  88. See Am. Immigr. Council, Immigration Detention in the United States by Agency 1–3 (2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigration_detention_in_the_united_states_by_agency.pdf [https://perma.cc/6HEF-RQKW].

  89. See supra Part I.

  90. See infra Part III.

  91. See infra Section II.B; U.S. Const. amend. V.

  92. See infra Section II.B; U.S. Const. amend. V.

  93. See infra Section II.B; U.S. Const. amend. VI.

  94. U.S. Const. amend. V (“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (emphasis added)).

  95. Miranda v. Arizona, 384 U.S. 436, 468 (1966) (“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving adequate warning as to the availability of the privilege so simple . . . .”).

  96. Id. at 469.

  97. Id.

  98. Id.

  99. Id.

  100. See id.

  101. See id.

  102. Id. at 470–71 (citing People v. Dorado, 398 P.2d 361, 369–70 (1965)).

  103. Id. at 472.

  104. Id. at 474.

  105. Id.

  106. Id.

  107. Id. at 456.

  108. Id. at 457.

  109. Id.

  110. Id. at 457, 466.

  111. Mathis v. United States, 391 U.S. 1, 5 (1968).

  112. Id. at 2–4.

  113. Id. at 2–3.

  114. Id. at 4–5.

  115. Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (“The right to counsel in immigration proceedings is rooted in the Due Process Clause . . . .”); see also Leslie v. Att’y Gen. of U.S., 611 F.3d 171, 181 (3d Cir. 2010) (“[T]he Fifth Amendment . . . indisputably affords an alien the right to counsel of his or her own choice at his or her own expense.”); Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”).

  116. Bridges v. Wixon, 326 U.S. 135, 154 (1945).

  117. Landon v. Plasencia, 459 U.S. 21, 32 (1982) (finding that there are no constitutional rights for a foreign national seeking admission to the United States, but when a foreign national enters and “begins to develop the ties that go with permanent residence, his constitutional status changes accordingly”).

  118. 8 U.S.C. § 1362 (“In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”).

  119. Id.

  120. See id. (ensuring the right during appeals “from any such removal proceedings”).

  121. 8 U.S.C. § 1232(c)(5).

  122. Id. § 1158(d)(4).

  123. See Rothgery v. Gillespie City, 554 U.S. 191, 198 (2008).

  124. Id. (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).

  125. United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688–89 (1972)).

  126. Kirby, 406 U.S. at 689.

  127. United States v. Ash, 413 U.S. 300, 307 (1973).

  128. Id.

  129. Powell v. Alabama, 287 U.S. 45, 69 (1932).

  130. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“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.”).

  131. Id.; Rothgery v. Gillespie City, 554 U.S. 191, 198 (2008).

  132. Fong v. United States, 149 U.S. 698, 730 (1893).

  133. Bell v. Wolfish, 441 U.S. 520, 537 (1979).

  134. Id. at 536–37.

  135. Id. at 537.

  136. Consular Processing, supra note 24.

  137. Seghetti, supra note 32, at 10–11.

  138. Wasem et al., supra note 34, at 12; Immigration Detention & Enforcement, Nat’l Immigrant Just. Ctr., https://immigrantjustice.org/issues/immigration-detention-enforcement [https://perma.cc/VJA6-AW3N] (last visited Sept. 26, 2021); Cong. Rsch. Serv., R45314, Expedited Removal of Aliens: Legal Framework 1 (2019), https://fas.org/sgp/crs/homesec/R45314.pdf [https://perma.cc/HSC3-3B9J].

  139. An Agency Guide, supra note 61, at 1–2.

  140. 8 C.F.R. § 1003.1(b); AAO Practice Manual ch. 1, supra note 84.

  141. Some have argued for increasing specific groups’, such as unaccompanied minors or those with disabilities, right to counsel or access to counsel. See, e.g., Shani M. King, Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, 50 Harv. J. on Legis. 331, 376–82 (2013); Aimee L. Mayer-Salins, Fast-Track to Injustice: Rapidly Deporting the Mentally Ill, 14 Cardozo Pub. L., Pol’y, & Ethics J. 545, 565–70 (2016).

  142. See infra Section III.A.1; Mathis v. United States, 391 U.S. 1, 4, 5 (1968).

  143. See infra Section III.A.1.

  144. See infra Section III.A.2.

  145. Anjana Malhotra, The Immigrant and Miranda, 66 SMU L. Rev. 277, 280–81 (2013).

  146. 8 U.S.C. § 1325(a).

  147. Id. § 1325(c)–(d).

  148. See, e.g., Laredo Sector Border Patrol Arrests Undocumented Individuals with Fake Documents, U.S. Customs & Border Prot. (June 4, 2021), https://www.cbp.gov/newsroom/local-media-release/laredo-sector-border-patrol-arrests-undocumented-individuals-fake [https://perma.cc/F86Y-UP56]; Green Card Interview Questions for Spouses, CitizenPath (Mar. 30, 2021), https://citizenpath.com/green-card-interview-questions-spouses/ [https://perma.cc/7YMT-VCPE].

  149. Am. Immigr. Council, Prosecuting People for Coming to the United States 3–4 (2021), https://www.americanimmigrationcouncil.org/sites/default/files/research/prosecuting_people_for_coming_to_the_united_states.pdf [https://perma.cc/TC42-PEMW]. In 2020, only around 47,000 foreign nationals were criminally prosecuted for improper entry or reentry—the drop due to COVID-19 restrictions on entry. Id.

  150. How Criminal Investigations Are Initiated, IRS, https://www.irs.gov/compliance/criminal-investigation/how-criminal-investigations-are-initiated [https://perma.cc/6LH2-EWL5] (Apr. 15, 2021).

  151. Mark Motivans, Immigration, Citizenship, and the Federal Justice System 1998-2018 16 (2021), https://bjs.ojp.gov/content/pub/pdf/icfjs9818.pdf [https://perma.cc/9NRG-XCV4] (apprehending almost 400,000 individuals and arresting over 80,000 of those individuals).

  152. Internal Revenue Serv., IRS: Criminal Investigation Annual Report 2019 19 (2019), https://www.irs.gov/pub/irs-utl/2019_irs_criminal_investigation_annual_report. pdf [https://perma.cc/YW6R-ZN5E].

  153. Malhotra, supra note 145, at 307.

  154. Stansbury v. California, 511 U.S. 318, 322 (1994).

  155. Id. (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).

  156. California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).

  157. Stansbury, 511 U.S. at 325 (“[I]t is the objective surroundings, and not any undisclosed views, that control the Miranda custody inquiry.”); Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (“[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”).

  158. Hilary T. Fraser, Inspection of Green Card Holders at U.S. Ports of Entry, Nat’l L. Rev. (May 25, 2017), https://www.natlawreview.com/article/inspection-green-card-holders-us-ports-entry [https://perma.cc/SF5L-2CW4].

  159. United States v. Cano, 934 F.3d 1002, 1018 (9th Cir. 2019) (holding that “the border search exception authorizes warrantless searches of a cell phone only to determine whether the phone contains contraband”). Searches conducted at the border “typically do not require any particularized suspicion, so long as they are ‘routine inspections and searches of individuals or conveyances seeking to cross our borders.’” Id. at 1012 (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973)). The First Circuit found that the Ninth Circuit’s holding was too narrow and that “[a]dvanced border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.” Alasaad v. Mayorkas, 988 F.3d 8, 20–21 (1st Cir. 2021).

  160. U.S. Customs & Border Prot., Policy Regarding Border Search of Information 4 (2008), https://www.cbp.gov/sites/default/files/documents/search_authority_2.pdf [https://perma.cc/FL8Q-K5J3] (“Although legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures.”). After concerns from the American Bar Association, CBP clarified its “special handling procedures” regarding privileged material, including stating CBP counsel must be contacted before any search of claimed privileged material. U.S. Customs & Border Prot., Border Search of Electronic Devices 6 (2018), https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf [https://perma.cc/HJQ2-628U]; Letter from Linda Klein, President, Am. Bar. Ass’n, to John F. Kelley & Joseph M. Mayer, Dep’t of Homeland Sec. (May 5, 2017), https://www.americanbar.org/content/dam/aba/images/government_affairs_office/attyclientprivissue(bordersearchesofattorneydevices,abalettertodhs,finalversion,may5,2017).pdf [https://perma.cc/73GL-88MK].

  161. Guillermo Cantor, Am. Immigr. Council, Detained Beyond the Limit: Prolonged Confinement by U.S. Customs and Border Protection Along the Southwest Border 1 (2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/detained_beyond_the_limit.pdf [https://perma.cc/KM7J-QASB].

  162. Id.

  163. Id. at 1, 8.

  164. Id. at 4 (citing U.S. Customs & Border Prot., National Standards on Transport, Escort, Detention, and Search 14 (2015), https://www.cbp.gov/sites/default/files/documents/cbp-teds-policy-20151005_1.pdf [https://perma.cc/3MGP-UR2K]).

  165. See, e.g., Brendan Lokka, Comment, Trump’s Torture Legacy: Isolating, Incarcerating, and Inflicting Harm Upon Migrant Children, 35 Am. U. Int’l L. Rev. 169, 187 (2019) (describing federal officials conducting “involuntary medical treatment” on children including “cocktails of psychotropic drugs” and “prescribing powerful psychotropic drugs”).

  166. Unknown Parties v. Nielsen, No. CV-15-00250-TUC-DCB, 2020 WL 813774, at *22 (D. Ariz. Feb. 19, 2020), appeal dismissed sub nom. Doe, # 1 v. Wolf, No. 20-15741, 2020 WL 9259906 (9th Cir. Nov. 18, 2020).

  167. Miranda v. Arizona, 384 U.S. 436, 439, 448 (1966).

  168. Dyan Williams, Grant of Motion to Vacate Expedited Removal Order + Rescission of Misrepresentation Charge = A True Success Story, Dyan Williams Law PLLC (Nov. 30, 2016), https://dyanwilliamslaw.com/tag/secondary-inspection/ [https://perma.cc/FAE5-SZSV].

  169. 8 U.S.C. § 1182(a)(9)(A)(i); Williams, supra note 168.

  170. Aruna Sury & Ariel Brown, Immigrant Legal Res. Ctr., Understanding I-212s for Inadmissibility Related to Prior Removal Orders and the Permanent Bar 1 (2020), https://www.ilrc.org/sites/default/files/resources/i-212_advisory-final.pdf [https://perma.cc/RWX8-MBUL]; Williams, supra note 168.

  171. Hillel R. Smith, Cong. Rsch. Serv., LSB10297, Attorney General Rules that Unlawful Entrants Generally Must Remain Detained While Asylum Claims Are Considered 2 (2019), https://fas.org/sgp/crs/homesec/LSB10297.pdf [https://perma.cc/K5M8-67AP].

  172. Policy Manual Chapter 1 – Purpose and Background, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/policy-manual/volume-3-part-f-chapter-1 [https://perma.cc/N6KP-67DP] (Dec. 9, 2021) (explaining that a foreign national may be paroled by the Secretary of Homeland Security “under conditions the Secretary may prescribe, on a case-by-case basis for urgent humanitarian reasons or significant public benefit, any noncitizen applying for admission to the United States, regardless of whether the [foreign national] is inadmissible to, or removable from, the United States”).

  173. Miranda v. Arizona, 384 U.S. 436, 469 (1966).

  174. Id. at 448–51, 453–54.

  175. Id. at 474, 479–80.

  176. Michael Kaufman, Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 Stan. J. C.R. & C.L. 113, 141–42 (2008); Tom Gjelten, Biden Gives New Hope to Refugees Fleeing Religious Persecution, NPR (Nov. 20, 2020, 2:55 PM), https://www.npr.org/2020/11/20/937105545/biden-gives-new-hope-to-refugees-fleeing-religious-persecution [https://perma.cc/2Y9H-Q7RB].

  177. See supra Section II.B.3.

  178. See Kennedy Parker & Alison Parker, Deported to Danger, Hum. Rts. Watch (Feb. 5, 2020), https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and [https://perma.cc/77AC-9W26] (finding, in a study of over 200 cases, a “clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place”).

  179. Padilla v. Kentucky, 559 U.S. 356, 365 (2010).

  180. Id. at 365–66 (finding that advice regarding the impact a criminal proceeding and conviction has on immigration status and removal falls under the Sixth Amendment right to effective counsel).

  181. Id. at 365, 368 (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).

  182. Harmelin v. Michigan, 501 U.S. 957, 962 (1991). Here, the Supreme Court used the term “penalty” when describing the factors to determine cruel and unusual punishment, id. at 962, and Justice Kennedy specifically used it to describe “life sentence without parole,” id. at 1001 (Kennedy, J., concurring).

  183. Mont v. United States, 139 S. Ct. 1826, 1832 (2019) (first citing Black’s Law Dictionary 681 (5th ed. 1979); then citing 5 Oxford English Dictionary 113 (1933); and then citing Black’s Law Dictionary 875 (10th ed. 2014)).

  184. For example, children of foreign nationals who entered the United States without inspection have the right to equal protection—including public education. Plyler v. Doe, 457 U.S. 202, 215–16, 230 (1982). Additionally, foreign nationals—even those who entered without inspection—with “established connections in this country” have due process rights. Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1963–64 (2020).

  185. Mont, 139 S. Ct. at 1832.

  186. Seventy-four percent of those held in city and county jails are held for pretrial reasons. Pretrial Detention, Prison Pol’y Initiative, https://www.prisonpolicy.org/research/pretrial_detention/ [https://perma.cc/K5G9-FKNX] (Oct. 8, 2021).

  187. See Bell v. Wolfish, 441 U.S. 520, 537 (1979).

  188. Pretrial Detention, supra note 186; Am. Immigr. Council, Seeking Release from Immigration Detention 2 (2019), https://www.americanimmigrationcouncil.org/sites/default/files/research/seeking_release_from_immigration_detention.pdf [https://perma.cc/UBU4-GG5T].

  189. See supra Section II.B.3.

  190. See David A. Super, The Future of U.S. Immigration Law, 53 U.C. Davis L. Rev. 509, 522–25 (2019). A term of art, “Comprehensive Immigration Reform” has no definite meaning and can encompass anything from providing a path to citizenship for undocumented immigrants to constructing a border wall. Id. at 521.

  191. Id. at 523; All Actions S.2611—109th Congress (2005-2006), Congress, https://www.congress.gov/bill/109th-congress/senate-bill/2611/all-actions [https://perma.cc/T5RX-C9DQ] (last visited Oct. 12, 2021).

  192. Super, supra note 190, at 523–24; All Actions S.1348—110th Congress (2007-2008), Congress, https://www.congress.gov/bill/110th-congress/senate-bill/1348/all-actions [https://perma.cc/BQE2-MVKQ] (last visited Sept. 29, 2021).

  193. See Migration Pol’y Inst., Side-By-Side Comparison of 2013 Senate Immigration Bill with 2006 and 2007 Senate Legislation 18 (2013), http://www.migrationpolicy.org/pubs/CIRbrief-2013SenateBill-Side-by-Side.pdf [https://perma.cc/9LY9-44FW].

  194. Immigr. Pol’y Ctr., A Guide to S.744: Understanding the 2013 Senate Immigration Bill 3 (2013), https://www.americanimmigrationcouncil.org/sites/default/files/research/guide_to_s744_corker_hoeven_final_12-02-13.pdf [https://perma.cc/VC55-P49D]. The “Gang of Eight” included “Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ).” Id.

  195. Id. at 14.

  196. S. 744, 113th Cong. § 3502 (2013).

  197. See 8 C.F.R. § 1003.10(a)–(b).

  198. See Mayer-Salins, supra note 141, at 566 (recommending that competency determinations be conducted by “independent outside experts, such as psychiatrists and psychologists” instead of “Immigration Judge[s] who ha[ve] very little expertise in diagnosing, treating, or even understanding mental illness”).

  199. S. 744, 113th Cong. § 3503 (2013).

  200. Id.

  201. Id.

  202. Philip Wolgin, 2 Years Later, Immigrants Are Still Waiting on Immigration Reform, Ctr. for Am. Progress (June 24, 2015, 9:05 AM), https://www.americanprogress.org/issues/immigration/news/2015/06/24/115835/2-years-later-immigrants-are-still-waiting-on-immigration-reform/ [https://perma.cc/G988-DYF9].

  203. Letter from Lenni B. Benson, Chair, Comm. on Immigr. & Nat’y L., to Senate Judiciary Committee 1 (Apr. 24, 2013), https://www2.nycbar.org/pdf/report/uploads/20072470-SupportofRighttoCounselbill.pdf [https://perma.cc/L4K6-SWNF].

  204. Id. at 1–2.

  205. Id.

  206. Id. at 2 (citing Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)).

  207. Id.

  208. Id.

  209. Id. (“In 2011, 5,000 children of deported U.S. parents were in foster care.”).

  210. Id.

  211. Id. at 3. The City Bar details how providing foreign nationals with counsel lowers the burden on the court system. Id. Providing counsel reduces delays in proceedings stemming from continuances that are meant to provide time for the foreign national to find counsel. Id. Providing foreign nationals counsel will also encourage negotiations outside of immigration court. Id. Finally, providing counsel will cut down on the possibility of foreign nationals seeking help from notaries, who frequently defraud their clients by providing bad legal advice. Id.

  212. Id. at 4.

  213. Id.

  214. Id.

  215. Id. at 5.

  216. See id.

  217. Id.

  218. John D. Montgomery, NERA Econ. Consulting, Cost of Counsel in Immigration: Economic Analysis of Proposal Providing Public Counsel to Indigent Persons Subject to Immigration Removal Proceedings 3 (May 28, 2014), https://www. nera.com/content/dam/nera/publications/archive2/NERA_Immigration_Report_5.28.2014.pdf [https://perma.cc/9XFB-M8M9].

  219. Id.

  220. Am. Immigr. Council, Legal Orientation Program Overview 2 (2018), https: //www.americanimmigrationcouncil.org/sites/default/files/research/legal_orientation_program_overview.pdf [https://perma.cc/4X4B-XE6F] (emphasizing that “LOP providers are not serving as legal counsel”).

  221. Id. at 3.

  222. Memorandum on Restoring the Department of Justice’s Access-to-Justice Function and Reinvigorating the White House Legal Aid Interagency Roundtable, White House (May 18, 2021) [hereinafter Restoring DOJ’s Access], https://www.whitehouse.gov/briefing-room/presidential-actions/2021/05/18/memorandum-on-restoring-the-department-of-justices-access-to-justice-function-and-reinvigorating-the-white-house-legal-aid-interagency-roundtable/ [https://perma.cc/DQV3-5BTW]; Legal Aid Interagency Roundtable, U.S. Dep’t Just., https://www.justice.gov/olp/legal-aid-interagency-roundtable [https://perma.cc/B3YJ-6MG2] (last visited Oct. 3, 2021).

  223. White House Legal Aid Interagency Roundtable, Expanding Access to Justice, Strengthening Federal Programs: First Annual Report of the White House Legal Aid Interagency Roundtable 45–47 (2016), https://www.justice.gov/atj/page/file/913981/download [https://perma.cc/54ET-JBLR].

  224. Restoring DOJ’s Access, supra note 222.

  225. Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize Our Immigration System, White House (Jan. 20, 2021), https:// www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/ [https://perma.cc/2K47-9HKM].

  226. Id.

  227. H.R. 1177, 117th Cong. § 4106 (2021).

  228. Id.

  229. See id. (“The Attorney General may appoint or provide counsel to a noncitizen in any proceeding conducted under section 235, 236, 238, 240, or 241 or any other section of this Act.”).

  230. Id. (“The Secretary of Homeland Security shall ensure that noncitizens have access to counsel inside all immigration detention and border facilities.”).

  231. H.R. 1177, 117th Cong. § 292 (2021).

  232. Id.

  233. Immigration and Nationality Act, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act [https://perma.cc/22AF-D5RT] (July 10, 2019).

  234. H.R. 1177, 117th Cong. § 292 (2021).

  235. Proceeding, Black’s Law Dictionary (11th ed. 2019).

  236. See H.R. 1177, 117th Cong. § 4103 (2021) (“To ensure efficient and fair proceedings, the Director of the Executive Office for Immigration Review shall establish or expand, as applicable, training programs for immigration judges and members of the Board of Immigration Appeals.” (emphasis added)).

  237. H.R. 1177, 117th Cong. § 4106 (2021).

  238. Board of Immigration Appeals, U.S. Dep’t of Just., https://www.justice.gov/eoir/board-of-immigration-appeals [https://perma.cc/T94M-ZCBL] (Sept. 14, 2021) (“The BIA is directed to exercise its independent judgment in hearing appeals for the Attorney General.”).

  239. The Administrative Appeals Office (AAO), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/about-us/organization/directorates-and-program-offices/the-administrative-appeals-office-aao [https://perma.cc/P8ZS-PT7Z] (Jan. 5, 2021) (“The Secretary of Homeland Security may, with the Attorney General’s approval, designate AAO or other DHS decisions to serve as precedents in all future proceedings involving the same issue or issues.”).

  240. Organization, Mission & Functions Manual: Attorney General, Deputy and Associate, U.S. Dep’t of Just., https://www.justice.gov/jmd/organization-mission-and-functions-manual-attorney-general [https://perma.cc/YVH4-VUD6] (May 26, 2021) (“The principal duties of the Attorney General are to . . . [r]epresent or supervise the representation of the United States Government in the Supreme Court of the United States and all other courts, foreign and domestic, in which the United States is a party or has an interest as may be deemed appropriate.”).

  241. FACT SHEET: The Biden Administration Blueprint for a Fair, Orderly and Humane Immigration System, White House (July 27, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/27/fact-sheet-the-biden-administration-blueprint-for-a-fair-orderly-and-humane-immigration-system/ [https://perma.cc/G4LE-5W9P]; H.R. 6, 117th Cong. § 102 (2021).

  242. H.R. 6, 117th Cong. § 102 (2021); Summary H.R.6-117th Congress (2021-2022), Congress, https://www.congress.gov/bill/117th-congress/house-bill/6/summary [https://perma.cc/4QVT-V99M] (last visited Oct. 20, 2021). Those individuals targeted in the Dream Act of 2021 must (1) “[have] been continuously physically present in the United States for a period of not less than 3 years”; (2) have been 18 or younger when they “entered the United States and [have] continuously resided in the United States since such entry”; (3) not be inadmissible for health reasons, smuggling, abusing student visas, citizenship ineligibility, polygamy, require an inadmissible guardian, child abduction, or unlawful voting; (4) have not “participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion”; (5) not be barred under criminal or national security grounds; and (6) be “admitted to an institution of higher education” or a technical school, obtained a high school diploma or other degree, or is currently enrolled in a program assisting them to obtain a high school diploma or other degree. §§ 102, 202; 8 U.S.C. § 1182.

  243. H.R. 6, 117th Cong. § 102 (2021). The funding for counsel is provided by the “fees collected and deposited in the Immigration Counsel Account.” This includes a $25 surcharge to fees collected within the Dream Act of 2021. Id.

  244. All Actions H.R.1177—117th Congress (2021-2022), Congress, https://www. congress.gov/bill/117th-congress/house-bill/1177/all-actions [https://perma.cc/2KKZ-KP2K] (last visited Oct. 3, 2021).

  245. All Actions H.R.6—117th Congress (2021-2022), Congress, https://www.congress.gov/bill/117th-congress/house-bill/6/all-actions [https://perma.cc/SDL4-Y7JM] (last visited Sept. 26, 2021).

  246. Erin B. Corcoran, Bypassing Civil Gideon: A Legislative Proposal to Address the Rising Costs and Unmet Legal Needs of Unrepresented Immigrants, 115 W. Va. L. Rev. 643, 676 (2012).

  247. Carla L. Reyes, Access to Counsel in Removal Proceedings: A Case Study for Exploring the Legal and Societal Imperative to Expand the Civil Right to Counsel, 17 U.D.C. L. Rev. 131, 160 (2014).

  248. Lisa Graybill & Charanya Krishnaswami, Immigration Detention in the Rocky Mountain West: Can Emerging Models of Reform Solve Our Regional Problem?, 92 Denv. U. L. Rev. 791, 834 (2015); Alex Boon et al., Divorcing Deportation: The Oregon Trail to Immigrant Inclusion, 22 Lewis & Clark L. Rev. 623, 644–45 (2018).

  249. Elizabeth Trovall, Harris County Commissioners Approve $2 Million Deportation Defense Fund, Hous. Pub. Media (Nov. 10, 2020, 3:53 PM), https://www.houstonpublicmedia.org/articles/news/politics/immigration/2020/11/10/385883/harris-county-commissioners-to-vote-on-2-million-deportation-defense-fund/ [https://perma.cc/X9BW-NE88].

  250. Immigration Services Funding, Cal. Dep’t of Soc. Servs., https://www.cdss.ca.gov/inforesources/immigration/immigration-services-funding [https://perma.cc/42LW-2DZK] (last visited Oct. 2, 2021).

  251. Prince George’s County Pledges Half a Million Dollars Towards Access to Counsel for Detained Immigrants, Immigrant Just. Corps (June 25, 2020), https://justicecorps.org/news/prince-georges-county-pledges-half-a-million-dollars-towards-access-to-counsel-for-detained-immigrants/ [https://perma.cc/5UDA-ZYMX].

  252. Id.; Trovall, supra note 249; Immigration Services Funding, supra note 250.

  253. Ill. Pub. Act 102-0410, Ill. Gen. Assembly, https://www.ilga.gov/legislation/publicacts/102/PDF/102-0410.pdf [https://perma.cc/AE5Y-FQ2B].

  254. See Immigration Unit, S.F. Pub. Def., https://sfpublicdefender.org/services/immigration-unit/ [https://perma.cc/42W7-CX8K] (last visited Sept. 30, 2021).

  255. Bill Status of HB0025, Ill. Gen. Assembly, https://www.ilga.gov/legislation/BillStatus.asp?DocNum=25&GAID=16&DocTypeID=HB&SessionID=110&GA=102 [https://perma.cc/26LH-W6D6] (last visited Oct. 3, 2021); H.B. 0025, 102nd Gen. Assemb., § 15 (Ill. 2021).

  256. H.B. 0025, 102nd Gen. Assemb., § 15 (Ill. 2021).

  257. Carlos Ballesteros, Cook County Aims to Disrupt the Conviction-to-Deportation Pipeline, InjusticeWatch (Mar. 31, 2021), https://www.injusticewatch.org/news/immigration/2021/cook-county-conviction-deportation-pipeline/ [https://perma.cc/65ZU-GJTV].

  258. See, e.g., Immigration Clinic, Univ. of Hous. L. Ctr., https://www.law.uh.edu/clinic/immi.asp [https://perma.cc/8JG5-2SS7] (last visited Oct. 3, 2021).

  259. About IJC, Immigrant Just. Corps, https://justicecorps.org/about/ [https://perma.cc/4RL8-LYLX] (last visited Oct. 2, 2021).

  260. Id.

  261. Id.

  262. Letter from Lenni B. Benson, supra note 203, at 1.

  263. Id. at 3.

  264. Id. at 4.

  265. Overview, N.Y. Immigr. Fam. Unity Project, https://www.vera.org/projects/new-york-immigrant-family-unity-project [https://perma.cc/47GP-B63P] (last visited Oct. 13, 2021).

  266. Learn More, N.Y. Immigr. Fam. Unity Project, https://www.vera.org/projects/new-york-immigrant-family-unity-project/learn-more [https://perma.cc/9JMJ-SSHY] (last visited Oct. 13, 2021).

  267. Id.

  268. Overview, supra note 265.

  269. Letter from Lenni B. Benson, supra note 203, at 3.

  270. Miranda v. Arizona, 384 U.S. 436, 470–71 (1966).