Suchergebnisse

What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and not criminal appeals, misdemeanors, parole and probation hearings, or habeas petitions? This question is particularly pressing given that we know that, in furtherance of the mass incarceration policy, misdemeanors and violations of parole and probation were the front door and back door to ensure most people got caught up in and stayed in the criminal justice system. Moreover, habeas petitions are the best means to present evidence of actual innocence underlying any and all conviction. If courts continue to condition the right to appointed counsel on only the threat of mandatory incarceration, why are the most effective tools to prevent incarceration—either through the entry point of misdemeanor or the offered exit of parole— excluded from this right? In Gideon, the gravamen of the right to counsel is not predicated in criminal trials but is a remedy to level the playing field for all of us who are facing the well-oiled machine of the federal government. This asymmetry is not abstract. For any person who is in immigration court, that person is facing off against a professional government attorney, trained in an exceedingly complex area of law that the said trained government attorneys are experts in. For many, the person is representing themselves, and often, did not even begin with English as their first language. Although scholars have been calling for legal representation for lawful permanent residents (their home is here), asylum seekers (death is different), immigrants with criminal convictions (Padilla v. Kentucky practically created the "Fifth and a half Amendment" right for non-citizens in criminal court), detained immigrants (it is fundamentally unfair for someone to present their defense while locked up), or uniquely vulnerable immigrants (children or the mentally disabled), it becomes pretty clear that the divides between these groups pale in the common theme that there is no fair fight—for anyone in immigration court. Immigration court is set up to the full and complete advantage of one party—the same party that is the prosecutor, judge, and executioner. What this article seeks then ask is, if Gideon can be intellectually expanded to provide for a right to counsel in immigration courts does that right end there? On the one hand, the analogy between incarceration and deportation is apt. The simple answer is no. It is a mistake to condition the right of counsel only on the severity on the outcome of a process. For starters, those who experience the specific adverse outcome arising from civil law are not particularly assuaged by someone else who may be worse off. For instance, for someone who loses custody of their child or loses income from a disability check, the result is life altering to them. But more import, the safeguard must be available to offset an unfair process, regardless of whatever the outcome is, so that the process does not lose its legitimacy. Whenever there is a courtroom, with procedures and rules created by the government, applying laws passed by the government, and populated by professional lawyers hired to advance the interests of the government, there is simply no fair fight without a lawyer representing the private David on the other side. Indeed, the lawyer might be the metaphorical slingshot, for which there is no chance of success without one. Stated more clearly, the right to appointed counsel should not be available just for criminal trials. The more intellectually honest and constitutionally-sound dividing line between which forums receive appointed attorneys from those who do not is between public law and private law. Every court proceeding that involves the state or federal government—misdemeanors, habeas, immigration, family law, public housing, disability, public education—must expand their understanding of Gideon and provide appointed counsel to face off against the government. This remedy is the only means to both offset the baked-in asymmetry and ensure reliable outcomes is the appointment of counsel.

The Trump Administration is attacking asylum seekers—both in words and in deeds. In Attorney General Sessions's speech against "dirty immigration lawyers," for whom he blames for the rampant "fraud and abuse" in the system, the Attorney General highlighted policy initiatives undertaken by the Trump Administration to deter, delay, and deny asylum applicants who are seeking protections. This Article identifies the Trump Administration's new policies and practices and criticizes those that impose irrational or unnecessary burdens on asylum seekers. More salient, however, is that the Trump Administration's attack on asylum is not a break from past practices. To the contrary, for over 20 years, the preceding three administrations have imposed significant burdens on asylum seekers, because they either caved to irrational political pressures or lacked the political will to protect those who need more. Change is needed and concrete policy reforms exist. But the precondition to reform is the recognition that many newly arriving immigrants who are poor and persecuted are ironically the unique guardians of the American values that our country holds dear. Those who gave up everything for freedom, anti-corruption principles, or a refusal to abet a repressive regime hold and transmit the core democratic principles our country needs to thrive. Through policy initiatives that have been weaponizing misery, we have been deterring and denying legitimate asylum claims. We continue to do so at the detriment of our own country's future.

This chapter is an engagement with the Obergefell decision to suggest one way in which the decision's articulation of the citizen's relationship with the government (or 'the State,' as is the preferred nomenclature among some) is quite groundbreaking. American law—and American values—has a mythical and actual embrace of privacy as a valued and near-inviolable right. The belief that American citizens have a zone of privacy, a right to remain free from government intervention, has captured the imagination of both liberals and conservatives when embracing the rights to abortion, family planning, and gun ownership. However, instead of recognizing the harm that the State can have when intruding on a citizen's fundamental right, Obergefell is predicated upon a recognition that some harms—such as humiliation—are inflicted when the State fails to intervene and recognize a same-sex couple (and their child) as a family. Obergefell's remarkable anointment of privacy as a guarantor of rights is a major departure from the position widely accepted before 2000, and this chapter asks how this newly minted right—or "Obergefell's sword" as phrased by Justice Roberts—might be applied to families in which some members are U.S. citizens and some are not.

As a creature of administrative law, Congress has set forth clear, statutory definitions of "parent," "child," "son," "daughter," and "step-parent." As a practical matter, these terms create a uniform system by which family relationships are recognized and immigration benefits are conferred. In one notable exception, Congress directs adjudicators to look to state law when determining which children are citizens at birth. Derivative citizenship, the legal process whereby birthright citizenship is passed from a citizen to his or her child who is born outside of the United States, is a technical maze. There are at least nine different statutes in effect that may apply to a person, depending on the child's birth date and the parents' citizenship and marital status. Derivative citizenship may be conferred both at the time of birth, and, when specific conditions met, retroactively. Congress made the express policy choice to defer to state definitions of legitimation (also known as parentage) when conferring citizenship. This requires immigration adjudicators to then know, understand, and properly apply the laws of 50 different states when conferring citizenship status. This Article's focus is on a troubling, contemporary application of derivative citizenship that is occurring in removal proceedings. Often times, a child with one citizen parent will grow up, assuming that he or she is a citizen. It is only after committing a crime in their 20s or 30s do they first learn that their parents never filed the paperwork to declare their status. Although they are still eligible to have their derivative citizenship status conferred retroactively, government attorneys are contesting that the parents who raised them are in fact their legal parents. In extreme cases, the government attorneys are first disclosing to some of these people that the men and women who raised them are not in fact their genetic parents. This Article highlights numerous problems with this practice. Of most import, the immigration judges and government attorneys are misapplying state law when determining who is and is not a parent of a child. Whereas state laws have made clear that love, support, and care is proof of parentage, (and that collateral challenges to parentage may neither be raised after a set number of years nor by strangers to the family unit) immigration courts are ignoring state law to declare that blood alone is the sine qua non of parentage. This Article presents the derivative citizenship scheme, summarizes state law legitimation and parentage statutes, and argues that the immigration courts and government attorneys are grossly distorting family law. Of note, immigration courts are the least desirable forum to adjudicate these claims due to their systematic (and perhaps deliberate) overburdened workload, lack of representation to the alleged (and usually detained) citizen, and the incentive by the government attorney to remove individuals with criminal records, even when those individuals are in fact citizens. The Article ends with proposals to remove these claims from a contested removal proceeding and into either administrative or district court proceedings whereby the adjudicator can faithfully apply the complexities of family law without the distraction of knowing someone's criminal history.