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Chicana/o Latina/o Law Review

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Tired and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings


Every year, hundreds of thousands of immigrants appear before the immigration courts in removal proceedings. Removal proceedings have long raised issues regarding due process and an immigrant’s rights. The statutory right to counsel is one such right that inspires such questions of due process. Although noncitizens have a statutory right to counsel in immigration courts, the government has no obligation to provide an attorney to those who cannot afford one.

The problem is that immigration judges are denying the statutory right to counsel in removal proceedings; therefore, noncitizens are appearing before immigration judges without a crucial procedural safeguard. Noncitizens with counsel are more likely to seek relief from removal and actually win their case. There is a circuit split as to whether federal circuit courts should require a noncitizen to show that they were prejudiced by lack of counsel in removal proceedings.

This Comment argues that the federal circuit courts should not require prejudice when the immigrant has been denied their right to counsel because, under the Accardi Doctrine, an agency must abide by its own regulations when those regulations pertain to a party’s rights. The consequences of removal are similar in severity to those in criminal law. Therefore, immigrants must have the right to counsel if they have not expressly waived it in order to effectuate a meaningful hearing. Not only are the consequences of removal severe, but the immigration system is already so inherently prejudicial to immigrants that proving prejudice would be a waste of resources. Immigration laws are complex and filled with subjective standards; the immigration system is not an impartial tribunal; and immigration courts have become increasingly weaponized over the past few years. Therefore federal circuit courts should not require an immigrant to show that lack of counsel prejudiced their proceedings.

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