An immigration judge at the San Antonio Immigration Court took the bold step of explaining, in writing, that a migrant asking for asylum is not entitled to representation during the credible fear interview portion of the asylum request process. The migrant’s attorney, Ala Amoachi has kindly sent me a redacted copy of the judge’s order and granted me permission to post it here.
In his order denying a rather mundane motion for a telephonic hearing, Immigration Judge Gary Burkholder wrote: “Respondent is entitled to consultation, not representation.”
To provide a bit of context, this case involves a woman who is currently detained. She is asking for asylum on the basis of severe domestic violence she suffered at the hands of her ex-partner. The asylum officer who conducted what is called the “credible fear interview”—the first step in the asylum process—decided that she did not have a credible fear of persecution. An immigration judge is now reviewing that decision. A regulation in turn grants an immigration judge the power to conduct that review in person, telephonically, or by video. 8 C.F.R. § 1003.42(c).
Importantly, that regulation also provides: “The alien may consult with a person or persons of the alien’s choosing prior to the review.” The IJ appears to have interpreted this language to require allowing the migrant to consult with an attorney. It does not, in the IJ’s view, entitle the migrant to representation by an attorney. A regulation governing the process by which asylum officers conduct credible fear interviews includes similar language. 8 C.F.R. § 208.30(d)(4).
The IJ’s position strikes me as problematic for three reasons. First, it’s morally unsound. Second, it’s imprudent. A person who claims to face death or persecution if removed from the United States and who has the interest in and ability to hire a lawyer should be encouraged to do so. Attorneys sharpen the focus of litigation. In doing this they can improve the migrant’s chances of successfully raising a claim, but they also make the process for efficient for the immigration court and federal government’s attorney.
Third, the IJ’s position strikes me as legally tenuous at best. To begin with, the regulation that recognizes a right to consult with an attorney or someone else of the migrant’s choosing doesn’t mean that it denies a right to representation. It’s silent as to representation. More importantly, the IJ’s interpretation flies in the face of INA § 292 which plainly reads: “In any removal proceedings before an immigration judge…the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel…as he shall choose.” Though an immigration judge’s review of a negative credible fear interview is not a removal hearing pursuant to INA § 240—the provision that generally sets out the form and conduct of removal proceedings—the broad language of § 292 suggests a congressional desire to have anyone access counsel who wishes to do so and has the means to pay for it.
In addition, procedural due process principles would seem to require nothing less. Stretching back at least to the 1215 Magna Carta, due process has a long and rich history in the Anglo-American legal tradition. It’s been part of U.S. constitutional and statutory law, including the Fifth Amendment, since our earliest days as an independent nation at the state and federal levels. Today, it is readily thought to promote the “fundamental fairness” of governmental proceedings. Lassiter v. Dep’t of Soc. Serv.’s, 452 U.S. 18, 24-25 (1981). More specifically, in its landmark due process case of the late twentieth century, Mathews v. Eldridge, the Supreme Court made it absolutely clear what constitutes a central feature of fundamentally fair proceedings: “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” 424 US. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
What could be more important to being heard in a meaningful manner than ensuring that your attorney can help you? Indeed, numerous federal courts of appeals have recognized that the right to counsel is a part of the due process guarantee. As the Eleventh Circuit put it, “[t]he right to counsel in the immigration context is ‘an integral part of the procedural due process to which the alien is entitled.’” Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007) (quoting Saakian v. INS, 252 F.3d 21, 24 (1st Cir. 2001)).
Here’s hoping that IJ Burkholder reverses course on his own or that Attorney Amoachi is able to file a habeas petition with the federal district court to vindicate her client’s due process rights.
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