You’ve Got a Smuggler? You’ve Got a Lawyer!

What more could the Biden administration do to exacerbate the border debacle that it has brought upon America? Pull the plug on the Migrant Protection Protocols? Been there, done that. Allow asylum officers to hand out asylum at the border? Mission accomplished. Turn much of America into an enforcement-free zone? Yesterday’s news. Working with Panama and Mexico to make it far easier for aliens to traverse these countries en route to the United States? Shuttle bus diplomacy! Give Title 42 the 42 Skidoo? In process.

Wait, I know what the administration can do: It can pay for lawyers for all the “indigent” aliens in removal proceedings in immigration court! Fox News recently reported that:

The Biden administration awarded $41 million in taxpayer-backed government contracts to a new liberal nonprofit working to help illegal immigrants fight deportation. … The Acacia Center for Justice … born from a partnership between the Vera Institute of Justice and Capital Area Immigrants’ Rights … has received six “legal services” contracts from the Department of Justice [DOJ]. … “Acacia’s goals are … to provide exceptional legal services to immigrants and to advocate for the expansion of … programs … to guarantee[] immigrants access to justice, fairness and freedom[.] … Acacia will focus the collective power of both Vera and CAIR on delivering accountable, independent, zealous and person-centered legal services and representation to protect the rights of all immigrants at risk of deportation.

I guess for Vice President Harris, this is a twofer, since nothing says “don’t come”/ don’t “mak[e] that dangerous trek to the … border” like providing “zealous and person-centered legal services … to protect the rights of all immigrants at risk of deportation”. As Hans Von Spakovsky stated a number of years ago regarding a DOJ program to pay for counsel for unaccompanied alien children (UAC):

I think this is a first step, and the fact that the[ Obama administration is] proud of it basically shows they’re proud of the fact that they can manipulate the law, go outside of the law, violate the law. I think that they will be colluding to make sure that none of these folks are removed. I think that’s clearly what’s going to happen.

My colleague Jon Feere also stated at that time that it “is just a way to get the foot in the door, create a taxpayer-funded attorneys’ group for younger children, but eventually it’ll probably be expanded to include adults as well.” Looks like Feere is a soothsayer.

Fox News also noted in its story that:

The Vera Institute … hauled in a massive $171 million government contract in March to help [UAC] avoid deportation … [which] … can reach as high as $983 million if renewed until March 2027. … Taxpayer-backed government grants and contracts propel the Vera Institute. Between July 1, 2020, and June 30, 2021, $152 million of the group’s $191 million in revenue came from government sources.

Sen. Charles Grassley might say that the Vera Institute is “sucking the tit of the taxpayer”. Perhaps not unexpectedly, Vera wants the American taxpayer to pay for lawyers for all “indigent” aliens in removal proceedings, proclaiming that:

[On] April 26, 2022, [we] … [co-]launched Fairness to Freedom: The Campaign for Universal Representation. … [T]his coalition of over 100 organizations, legal services providers and elected officials is calling on Congress to move forward legislation establishing a universal right to legal representation for everyone in the immigration system [through federally funded universal representation for immigrants in deportation proceedings].

How much would this all cost? DOJ’s Executive Office for Immigration Review (EOIR) reports that its immigration judges [IJ] completed 205,164 cases in fiscal year 2022 through July 15 — 260,000 on an annualized basis. According to the Transactional Records Access Clearinghouse at Syracuse University, about one quarter of aliens in removal proceedings are represented by counsel. In 2018, the federal government conservatively estimated that the cost of appointed counsel in removal proceedings would be about $2,700 per case, and warned that demand would exceed expectations because aliens who “could afford attorneys would opt for government-funded counsel instead, and organizations offering pro bono legal services would shift scarce resources elsewhere.” So, we are talking about maybe half a billion/a billion dollars a year. As the Ninth Circuit put it, “Requiring government-funded counsel would significantly increase the funds expended on immigration matters.”

The Vera Institute helpfully offers up a way to pay for its future government contracts: “redistribute funds used to implement Trump-era border security policies and overpolicing”. (Emphasis added.) Oh, defund the police, defund the border. Makes one curious about the political orientation of the Vera Institute. Well, it states that “[u]niversal representation is a key part of fighting for broader reforms to remedy the fundamentally cruel and unfair immigration system”, even though it “alone is not enough to undo the decades of systemic harm experienced by immigrants in the United States”, and enthused after the 2020 election that “Joe Biden’s decisive … win gives him a mandate to … turn the corner after four years of vitriolic, racist policies and rhetoric directed at immigrants.” American taxpayers are keeping this organization in business?

§ 292

Since at least as far back as 1917, it was the case that “[i]n the event of rejection by the board of special inquiry [regarding a deportation order], in all cases where an appeal to the Attorney General is permitted .., the alien … shall have the right to be represented by counsel or other adviser on such appeal.” In 1950 “the Senate [Judiciary C]ommittee … issued a voluminous report on the immigration and naturalization system”, which described the right of an alien to be represented by counsel in deportation proceedings:

• Immediately upon being taken into custody [upon a prima facie showing of being subject to deportation, an] alien must be advised of his right to representation by counsel at the hearing.

• After the alien has been taken into custody under a warrant of arrest and has been given a reasonable time to arrange for his defense, including, if desired, representation by counsel, he is klopgranted a hearing to determine whether he is subject to deportation.

  …

  At the beginning of [the] hearing .., the presiding inspector must … apprise the alien, if not represented by counsel, that he may be represented if he so desires and require him to state then and there for the record whether he desires counsel.

  . . .

  If the alien obtains counsel, such counsel must be permitted to be present during the hearing to offer evidence, to meet any evidence presented by the Government, and to cross-examine witnesses called by the Government. … If the alien does not have counsel, he has the same rights as though he were represented by counsel.

Section 292 of the Immigration and Nationality Act of 1952 made clear that this right was to be at no cost to the taxpayer:

In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation 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. [Emphasis added.]

Section 292 currently provides that:

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.

The operative language remains the same, but the section now reflects the 1996 changeover from “exclusion” and “deportation” proceedings to “removal” proceedings and the change from “special inquiry officer” to “IJ”.

Section 292 specifies that the federal government is barred from paying for counsel for aliens in removal proceedings, doesn’t it? Well, nothing in Washington, D.C., is ever that simple. The Library of Congress’ Congressional Research Service (CRS) tells us:

[S]ome have suggested that the INA’s [Immigration and Nationality Act] provisions regarding counsel “at no expense to the government” bar the government from providing or otherwise paying for aliens’ counsel in removal proceedings. Those making this argument seemingly construe the language about aliens’ “privilege” to have counsel at their own expense to mean that the government may not pay for counsel for them. However, an argument could be made that these provisions only restrict aliens’ ability to claim an entitlement to counsel at the government’s expense, and do not preclude the government from paying for aliens’ counsel pursuant to other provisions of law or at its discretion. Indeed … the federal government … [has] adopted programs to provide counsel for at least certain aliens in removal proceedings.

CRS is correct, the federal government has adopted programs to pay for aliens’ counsel in removal proceedings. However, when it has done so, it has done so in violation of § 292. As Von Spakovsky said, it is “manipulat[ing] the law, go[ing] outside of the law, violat[ing] the law”.

What was Congress’ intent regarding § 292? CRS states that:

Alone among the provisions of the INA, [§ 504] states that “[a]ny alien financially unable to obtain counsel shall be entitled to have counsel assigned to represent” him or her. However, this provision applies only to aliens removed by the Alien Terrorist Removal Court [ATRC], a forum which has not been used to date. All the other provisions of the INA and their implementing regulations specify that aliens’ right to counsel shall be “at no expense to the government.”

The ATRC was established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The House Judiciary Committee’s report on IIRIRA’s foundational House legislation stated that:

• [Under current law, a]n alien is entitled to be represented by counsel, at no expense to the Government, and to examine evidence and cross-examine witnesses at the deportation proceeding.

• [T]he alien [in the ATRC] is entitled to be represented by counsel at government expense, a privilege that is not extended to aliens under … the INA, which stipulates that the alien’s representation is to be at no expense to the government. [Emphasis added.]

Thus, when Congress last amended § 292, it stipulated that an alien’s counsel in immigration court was to be at no expense to the government. Per the Cambridge English Dictionary, “stipulate” means “to say exactly how something … must be done”. Per Merriam-Webster, it means “to specify as a condition or requirement” and “to give a guarantee of”.

To § 292, the Executive Branch Just Says “Pooh-Pooh”

Congress intended that an alien’s counsel “must be” at no expense to the government, a “guarantee” it was making to the U.S. taxpayer. Unfortunately, the executive branch has not been able to handle the truth. To its credit, in 1995, the Immigration and Naturalization Service (INS) actually came to the right conclusion. On December 21, David Martin, INS’s general counsel, told T. Alexander Aleinikoff, INS’s executive associate commissioner, programs, of his assessment that “[w]e do not believe … that the statutory language requires an interpretation barring the Government from expending appropriated funds voluntarily to facilitate the providing of such representation.” (Emphasis added.) However:

• We believe that [5 U.S.C. § 3106, providing that “the head of an Executive department … may not employ an attorney … for the conduct of litigation in which the United States, an agency, or employee is a party … but shall refer the matter to [DOJ]”] together with … [§ 292] … do constitute a prohibition against using appropriated funds to pay the salaries of persons representing aliens in immigration proceedings. [Emphasis added.]

  …

  In our view… INS is not prohibited from expending appropriated funds for things that will facilitate aliens obtaining representation (e.g., providing facilities for conferences between aliens and their representatives).

• [W]e conclude that INS could expend appropriated funds … which [do] not relate to paying the salaries of the persons acting as representatives. [Emphasis added.]

Yet, on December 10, 2010, David Martin (yes, the very same David Martin, then DHS’s principal deputy general counsel) told Associate Attorney General Thomas Perrelli that:

• DHS concludes that there is no general statutory prohibition on [the] use of discretionary funding [for representation of aliens in immigration proceedings]. [Emphasis added.]

• [No court decision] directly address[es] whether INA § 292 prohibits the provision of counsel at government expense. In our view, the plain language of section 292 does not lend itself to such interpretation. Rather, the parenthetical language, “at no expense to the Government,” is most reasonably interpreted to limit or describe the “privilege” of representation by counsel. If Congress had intended to limit the expenditure of appropriations, it would have done so expressly, as it has in many other situations.

• We fully agree with the conclusion of the 1995 INS legal opinion that § 292 does not limit the discretion of the Government to fund counsel, if funding is otherwise authorized. [Emphasis added.]

  We also conclude that the use of federal discretionary funds to provide appointed counsel in immigration proceedings is not prohibited by 5 U.S.C. § 3106. … [which] merely channels all litigation on behalf of the Executive Branch through [DOJ], specifically by precluding Cabinet Departments from acting independently through retaining their own counsel for litigation. That provision was not intended to preclude the provision of federally funded counsel for a private party in administrative proceedings.

  …

  Fn: To the extent that the brief treatment of … § 3106 in the 1995 INS legal opinion could be read as contrary to this position, DHS … withdraws from that portion of the 1995 opinion.

Wait one hot second! In 2010, David Martin concluded that “[w]e fully agree with the conclusion of the 1995 INS legal opinion that § 292 does not limit the discretion of the Government to fund counsel”. Didn’t the 1995 INS legal opinion, which he wrote, reach exactly the opposite conclusion? I guess he could maybe have argued in 2010 that without the support of his old interpretation of § 3106 (which he withdrew from), § 292 by itself couldn’t solely bear the weight of prohibiting government expenditure on counsel for aliens. But nowhere did he make this argument. Again, what he said was “We fully agree with the conclusion of the 1995 INS legal opinion that § 292 does not limit the discretion of the Government to fund counsel.” Martin wasn’t misinterpreting the words of another lawyer. He wrote both opinions, and the second opinion misrepresents the conclusion of the first.

Martin’s 2010 opinion has not gone unnoticed by federal courts. In 2013, U.S. District Court Judge Dolly Gee (yes, of “Flores Settlement Agreement” infamy) noted in Franco-Gonzalez v. Holder that EOIR’s litigation position before her was that § 292 “bar[s] the use of federal funding to provide for direct representation”. Clearly, no longer DOJ’s position!

In any event, Judge Gee concluded that:

David P. Martin … confirmed that the plain language of [§ 292] does not lend itself to the interpretation that it “prohibits the provision of counsel at government expense.” … The Court agrees that these statutes cannot reasonably be interpreted to forbid the appointment of a Qualified Representative to individuals who otherwise lack meaningful access to their rights in immigration proceedings as a result of mental incompetency.

Ah, the legal opinion that keeps on giving.

The floodgates creaked open in 2014. Attorney General Eric Holder announced that:

[T]he increasing numbers of unaccompanied children appearing in our immigration courts present an urgent challenge. … Though the[y] may not have a Constitutional right to a lawyer, we have policy reasons and a moral obligation to insure the presence of counsel. … “[J]ustice AmeriCorps” … will provide … approximately $1.8 million in grant awards to legal aid organizations in more than 15 cities around the country. … to enable [the] enroll[ment of] approximately 100 lawyers and paralegals as justice AmeriCorps members, who … will … represent these children in our immigration courts. … [T]he way we treat … young people who may be fleeing from abuse, persecution, and violence, goes to the core of who we are as a nation. And we stand together in our conviction that it is both the right — and the responsibility — of every American to … extend the promise of our great country until it includes every single person who dares, and dreams, to call this nation their home. [Emphasis added.]

Oh, so it is the “responsibility” of every American to open our borders, and our coffers, to “every single person who dares” to come to the U.S. illegally?

How far have we “progressed” since 2014? In 2021, the American Immigration Council and the American Immigration Lawyers Association reported that:

[T]here are two federally funded legal counsel programs. … [T]he [Unaccompanied Children’s Program] UCP provides … representation to [UAC] through contracts with local providers serving every immigration court in the country. The [National Qualified Representative Program] NQRP provides counsel to people deemed incompetent due to a mental disorder through contracts with 46 providers serving courts in 24 states.

[UCP] is funded by the [Department of Health and Human Service’s Office of Refugee Resettlement] and is structured in such a way that Vera is the recipient of the funds and it … subcontracts with various legal services providers. [T]he UCP program … operat[es] in 21 states. … [and is] funded by HHS in the amount of about $115 million annually.

…

[I]n 2014 the EOIR contracted with Vera to set up [the] NQRP. … Similar in structure to the UCP, Vera is the primary contractor. … Currently the NQRP operates in 24 of the 31 states with immigration courts. … [It] is funded by DOJ/EOIR in the amount of $12 million per year.

Vera has certainly endeared itself to the grant givers.

The report also noted that “More than 40 states and localities have launched legal counsel programs for people in removal proceedings.”

Is There a Sixth Amendment Right to Appointed Counsel in Removal Proceedings?

Some have argued that § 292 is meaningless because the U.S. Constitution and various federal laws actually require the appointment of counsel for indigent aliens in removal proceedings, at least in some circumstances. Is this actually the case? Let’s start with the Sixth Amendment, which provides in relevant part that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” As CRS explains:

Courts have repeatedly declined to find that indigent aliens have a Sixth Amendment right to counsel at the government’s expense in removal proceedings. Those who would afford such a right to aliens often emphasize the serious consequences that being removed from the United States can have for aliens. They sometimes also note that immigration law has become increasingly intertwined with criminal law. … However, such arguments have consistently proved unavailing because the Sixth Amendment explicitly refers to “the Assistance of Counsel” in “criminal proceedings,” and removal proceedings are civil in nature. Thus, courts have deemed it appropriate that aliens subject to removal receive a different degree of protections than criminal defendants because removal proceedings are civil, not criminal.

For instance, in 1986, the Ninth Circuit Court of Appeals ruled in Vides-Vides v. INS that “As deportation is ‘purely a civil action to determine eligibility to remain in this country,’ not a criminal action to punish past transgressions … there is no Sixth Amendment right to appointment of counsel at government expense” and, in 1989, the Fourth Circuit stated in Tizhe v. INS that “[t]f an alien cannot afford counsel, or cannot secure free representation after a reasonable opportunity to obtain counsel, and has not shown good cause for additional time, he must represent himself.”

Is There a Fifth Amendment Right to Appointed Counsel in Removal Proceedings?

Similarly, does the Fifth Amendment require, as some argue, that indigent aliens be provided with appointed counsel? It provides in relevant part that “No person shall be … deprived of life, liberty, or property, without due process of law.”

A quarter-century ago, Professor Margaret Taylor at the Wake Forest University School of Law concluded that:

Despite sympathetic dicta in a few cases … no court has yet ordered the government to provide legal counsel for indigent aliens facing deportation [on the basis of the Fifth Amendment]. The biggest stumbling block is a Supreme Court decision holding that due process requires appointed counsel only in the rarest of cases, generally when the right to be free from physical confinement is at stake.

Taylor was referring to the 1981 Supreme Court case of Lassiter v. Dep’t of Social Services, in which the Court stated that:

[T]he Court’s precedents speak with one voice about what “fundamental fairness” has meant when the Court has considered the [Fifth Amendment] right to appointed counsel, and we … draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.

Well, aren’t many aliens in removal proceedings detained, thus losing their physical liberty, and don’t they all face the prospect of detention if they are ordered removed? OK, I was being facetious, at least with regards to the Biden administration, but even if we assume this to be the case for the sake of argument, it doesn’t matter. As Attorney General Michael Mukasey explained in 2009:

The Supreme Court has recognized a due process right to Government-appointed counsel … in certain civil proceedings that pose the same ultimate threat to a defendant’s physical liberty as a criminal trial that may result in incarceration[, citing Supreme Court holdings that] an individual has a constitutional right to appointed counsel in a civil proceeding the outcome of which may result in physical confinement at a psychiatric institution [and] that a juvenile has a constitutional … right to appointed counsel in a delinquency proceeding where he faces commitment to a juvenile-detention facility[].

Attorney General Mukasey then made the crucial point that:

Although an alien may be detained during the course of a removal proceeding, he does not “lose his physical liberty” based on the outcome of the proceeding. … The point of [which] is not to … provide the basis for incarceration or an equivalent deprivation of physical liberty, but rather to determine whether the alien is entitled to live freely in the United States or must be released elsewhere.

It is true that the INA provides that an alien shall be detained pending removal during the 90-day “removal period” following a final order of removal — but it also provides that after this period expires, an alien shall be released “under supervision”. The INA does allow DHS to detain past this date aliens ordered removed who fall into certain classes, including those determined to be risks to the community or unlikely to comply with removal orders. However, as a result of the Supreme Court’s 2001 decision in Zadvydas v. Davis, after six months of post-removal order detention, an alien may no longer be detained once it has been determined that there is no significant likelihood of their removal in the reasonably foreseeable future.

Taylor’s finding still remains the case. As CRS found in 2016, “there does not appear to be any published decision in which a court has found that the Due Process Clause requires the appointment of counsel for an individual alien.” CRS went on to state that:

A federal district court in Washington expressly rejected the argument that [UAC], as a class, have a due process right to appointed counsel in its 2002 decision Gonzalez Machado v. Ashcroft. In so doing, the court indicated that the “Case law does not demonstrate … that the right to counsel is on an inevitable path of outward expansion,” a factor which the court viewed as significant since, in its view, the plaintiff would have to show that the precedents finding that aliens have no right to counsel at the government’s expense in removal proceedings have been “eroded” by subsequent decisions or “become anachronistic” in order to prevail in the face of the government’s motion to dismiss the complaint.

However, CRS also noted that:

[S]everal federal courts of appeals have opined that the Fifth Amendment’s guarantee of due process could require the appointment of counsel for individual aliens who are incapable of representing themselves due to “age, ignorance, or mental capacity.” The earliest and most frequently cited example of this appears to be … the Sixth Circuit’s 1975 decision in Aguilera-Enriquez v. [INS]. There, the court rejected the argument that Section 292 … unconstitutionally deprived aliens of their right to counsel … [but] indicated that … the Due Process Clause of the Fifth Amendment [would] require the appointment of counsel “[w]here an unrepresented indigent alien would require counsel to present his position adequately to an immigration judge.” However, the court viewed the entitlement to appointed counsel as being determined on a case-by-case basis, and, in this case, it concluded that there was “no defense for which a lawyer would have helped.”

The Aguilera-Enriquez court stated that:

[I]f procedures mandated by Congress do not provide an alien with procedural due process, they must yield, and the constitutional guarantee of due process must provide adequate protection during the deportation process.

…

The test for whether due process requires the appointment of counsel for an indigent alien is whether, in a given case, the assistance of counsel would be necessary to provide “fundamental fairness — the touchstone of due process.”

Responding to the decision, John Mills, Kristen Echemendia, and Stephen Yale-Loehr have argued that “This case-by-case approach has amounted to no right at all, as no court has ever found that due process required free counsel in any specific case.”

In 2018, the Ninth Circuit in C.J.L.G. v. Sessions faced the question head-on of whether alien minors as a category have a due process right to appointed counsel in removal proceedings. The court noted that:

• [T]he Supreme Court[ has] admoni[shed] that the “‘power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” … Consistent with this recognition, “courts have uniformly held in this circuit and elsewhere that … [aliens] are not entitled to have counsel appointed at government expense.”

• [W]e are chary of discerning a constitutional infirmity in Congress’ considered judgment — as reflected in the INA — unless the matter before us is susceptible of no other determination.

• “The role of the judiciary [in immigration proceedings] is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy” [quoting the Supreme Court’s 1982 decision in Landon v. Plasencia].

• Petitioner … asks us to upend Congress’ statutory scheme by reading into the Due Process Clause and the INA itself a categorical right to court-appointed counsel at government expense for alien minors.

So far so good, especially for the Ninth Circuit. The court then discussed the requirements for a full and fair hearing in the removal context:

• INA § [240](b)(4)(B) sets forth the statutory full-and-fair-hearing requirement for immigration proceedings. … It provides that “the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government[”]. … An IJ also has an independent obligation to “fully and fairly develop the record.” … This includes an “affirmative duty, imposed by statute, to develop a clear record for appeal.” … This duty distinguishes immigration proceedings from other adversarial forums where judges act only as neutral arbiters. Instead, the IJ shares the responsibility with the applicant to “ascertain and evaluate all relevant facts.”

• “The lack of a full and fair hearing … will not alone establish a due process violation. The alien must establish that []he suffered prejudice.” … Prejudice requires that the petitioner show “that the outcome of the proceeding may have been affected by the alleged violation.” … Prejudice results if the IJ fails to develop the record sufficient to determine whether the applicant qualifies for relief from deportation.

• If an IJ fails to provide a full and fair hearing … and this results in prejudice, then the proportionate remedy is to grant the petition for review with instructions to the IJ to more fully develop the record.

The court also considered the Supreme Court constitutional precedent regarding appointed counsel in civil proceedings:

• [The Plaintiff] relies on the Supreme Court’s [1967] decision in [In re] Gault, which held … that minors in delinquency proceedings are entitled to court-appointed counsel at government expense where a consequence of the proceeding is that the minor “may be committed to a state institution.” … Due to the “awesome prospect of incarceration” that could result from an adverse ruling, “the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.”

• The Court [in In re Gault] was preoccupied with the fact that non-represented juveniles face the possibility of being incarcerated in a state institution — which is akin to punishment for a criminal conviction. … This fact was essential to the Court’s holding. … Nothing in Gault or its progeny compels the outcome that minors in civil immigration proceedings who do not face the threat of incarceration are categorically entitled to court-appointed counsel.

The court in C.J.L.G. then looked to the facts of the case:

• A litigant in [the Plaintiff’s] position must show that … had the IJ performed her duty to provide [a full and fair hearing], the Constitution would still entitle him to court-appointed counsel. [The Plaintiff] falls well short of accomplishing this Herculean task.

• Substantial evidence supports the Board’s conclusion that [the Plaintiff] was not persecuted.

• The IJ … did not fail to fully develop the record.

And the court ruled:

• [The Plaintiff’s] has not shown a necessity for government-funded, court-appointed counsel to safeguard his due process right to a full and fair hearing.

• [W]e hold that neither the Due Process Clause nor the INA creates a categorical right to court-appointed counsel at government expense for alien minors.

This decision demonstrates remarkable restraint by a Circuit as activist as the Ninth. However, the court did state that:

If we had concluded that, in [this case the] right [to a full and fair hearing] could only be vindicated by assigning him court-appointed counsel — i.e., if we had determined that the risk of erroneous deprivation of [the Plaintiff’s] right to a full and fair hearing absent court-appointed counsel was a virtual certainty — then we might have been compelled to award such relief. [Emphasis added.]

And a concurring opinion pointed out that “The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer.”

In 2016, the Ninth Circuit ruled in J.E.F.M. v. Lynch that alien minors claiming to be entitled to court-appointed counsel had to go to the Circuit Court of Appeals rather than a federal district court to seek relief. The judge who wrote the opinion also wrote a “special concurrence” stating that:

I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings. … I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve.

…

The border crisis created what has been called a “perfect storm” in immigration courts, as … thousands of children are left to thread their way alone through the labyrinthine maze of immigration laws.

Congress and the Executive should not simply wait for a judicial determination before taking up the “policy reasons and … moral obligation” to respond to the dilemma of the thousands of children left to serve as their own advocates in the immigration courts in the meantime. The stakes are too high. … [T]he problem demands action now.

Should we take the Ninth Circuit concurrences as threats — that if Congress doesn’t step up and establish a program for appointed counsel for alien minors in removal proceedings, at some point the Circuit will tire of waiting and do if by itself?

Does the Rehabilitation Act of 1973 Confer a Right to Appointed Counsel in Removal Proceedings?

Section 504 of the Rehabilitation Act of 1973 provides that:

No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency.

Could § 504 provide a statutory right to appointed counsel in removal proceedings for aliens with disabilities? Well, it is Dolly Gee’s world (we only live in it), and she ruled (in Franco-Gonzalez) that:

• Plaintiffs … assert that the Rehabilitation Act requires legal representation as a reasonable accommodation for individuals who are not competent to represent themselves by virtue of their mental disabilities. … [T]he Court finds that Section 504 … does require the appointment of a Qualified Representative [QR] [an attorney, law student/graduate directly supervised by a retained attorney, or an accredited representative], as a reasonable accommodation.

• Plaintiffs … seek only the ability to meaningfully participate in the immigration court process, including [exercising] the[ir statutory] rights to “examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” … Plaintiffs’ ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation able to navigate the proceedings is the only means by which they may invoke those rights.

• [T]hose who are in full possession of their faculties already have the ability to participate in immigration proceedings or, at least, have the wherewithal to obtain access.

  Aspiring to a system that allows the mentally incompetent to similarly participate in the removal proceedings against them is not tantamount to “creating an entirely new system of benefits in immigration.”

Judge Gee was kind enough to let on that she was looking out for the American taxpayer:

[A QR] would be a reasonable accommodation, whether he or she is performing services pro bono or at [the government’s] expense. … [W]hile a reasonable accommodation should not impose “undue financial … burdens,” the rule does not preclude “some financial burden resulting from accommodation.”

…

The Court is wary of issuing an unfunded mandate requiring Government-paid counsel for all mentally incompetent class members. … [T]his order … [does not] require[ the government] to provide … paid legal counsel. Defendants have in the past been able to obtain pro bono counsel … from various non-profit organizations and pro bono panels.

Hence, the NQRP. As CRS states, following Judge Gee’s ruling:

[A]s a result of the Franco-Gonzales litigation, [DOJ and DHS] adopted a “nationwide policy” regarding unrepresented immigration detainees with “serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings.” Among other things, this policy calls for procedures that would make qualified representatives available to such individuals.

DOJ and DHS stated that “EOIR will make available a qualified representative to unrepresented detainees who are deemed mentally incompetent to represent themselves in immigration proceedings.”

I should hasten to add that Judge Gee’s ruling is incorrect, based on two fundamental canons of statutory construction. First, as the Supreme Court stated in Posadas v. National City Bank, “There [is a] well-settled categor[y] of repeal[] by implication [that] where provisions in … two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one.” IIRIRA was enacted after the Rehabilitation Act — its prohibition on government-funded counsel for aliens in removal proceedings is in irreconcilable conflict with any interpretation of the Rehabilitation Act that would mandate the provision of such counsel. Thus, § 292 prevails.

Second, as the Court stated in Nitro-Lift Techs. v. Howard, “the ancient interpretive principle that the specific governs the general … applies only to conflict between laws of equivalent dignity”, e.g., not between a statute and the Constitution. Of course, the Rehabilitation Act, the INA, and IIRIRA’s amendments to the INA are laws of equivalent dignity. Thus, § 292’s specific prohibition of government-funded counsel prevails.

Conclusion

Concerned about the longstanding flouting of § 292 by successive administrations, members of Congress have periodically proposed clarifying the provision to state something along the lines of:

In any removal proceedings before an immigration judge, or any other immigration proceedings before the Attorney General, the Secretary of Homeland Security, or any appeal of such a proceeding proceedings … [n]otwithstanding any other provision of law, in no instance shall the Government bear any expense for counsel for any person.

Congress should strongly consider the enactment of such a clarification, not that it would be in any way necessary if we had an administration and federal courts that chose to honor the intent of Congress. Of course, this clarification would not prevent the Ninth Circuit from someday granting aliens government-paid counsel as a constitutional right. Should that happen, only a Title 42-like expulsion remedy outside the constraints of Title 8 would prevent the erection of billboards all over the border, and all over the world for that matter, proclaiming “You’ve Got a Smuggler? You’ve Got a Lawyer! Better call Vera.”

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