No court has ever found that noncitizens in removal proceedings enjoy Sixth Amendment rights to counsel.1 Noncitizens have separate statutory and constitutional rights to counsel at private expense, but courts usually find these rights to be coextensive.2 Noncitizens’ right to counsel as it stands looks nothing like its Sixth Amendment analogue. Courts require situations “tantamount to denial of counsel”3 — where a noncitizen is wholly prevented from retaining counsel, or her counsel is wholly prevented from appearing — to find a violation of the right.4 They are reluctant to question Congress’s plenary power over immigration and analogize to constitutional rights outside the statutory scheme. Recently, in Lyon v. ICE,5 the Northern District of California held that interference with detained noncitizens’ telephone access to their attorneys could violate their Fifth Amendment right to a full and fair hearing.6 In doing so, the court sidestepped the statutory right to counsel and relied on the Constitution to locate a right of access to counsel.7 Through its reasoning, the court may have found a path to bring noncitizens’ right to counsel in immigration proceedings closer to its Sixth Amendment criminal counterpart.8
The ACLU of Northern California brought suit against Immigration and Customs Enforcement (ICE), and various other officials involved in immigration detention, on behalf of a class of adult noncitizens detained by ICE in four California detention facilities.9 Because the detainees’ immigration cases were docketed at the San Francisco Immigration Court, a substantial distance away from their remote facilities,10 detainees relied on telephone contact to communicate with their attorneys and collect evidence for their cases.11 The detainees claimed that all facilities shared telephone policies so restrictive that they interfered with detainees’ ability “to retain or communicate with counsel, or to gather evidence to be presented in removal proceedings.”12 Based on these allegations, the detainees claimed violations of their statutory and constitutional rights to counsel and a full and fair hearing.13
The parties brought cross-motions for summary judgment.14 Evaluating the detainees’ statutory right to counsel15 claim, Judge Chen emphasized that noncitizens have no Sixth Amendment right to counsel16 and that the Ninth Circuit finds violations only where the conduct was “tantamount to denial of counsel.”17 Because many detainees “did eventually find counsel after months of searching and with assistance from friends or family,” Judge Chen found no violation of detainees’ statutory right to counsel and granted ICE summary judgment on that claim.18
The court next turned to the detainees’ statutory claim to a full and fair hearing,19 which the detainees maintained included the right to gather evidence when preparing their cases.20 Judge Chen rejected this assertion, finding that the statute only mentions a noncitizen’s right to examine and present evidence on her own behalf, not to investigate for and gather it.21 The court found no case law expanding the definition beyond the language of the statute and therefore granted ICE summary judgment on all statutory claims.22
The court then examined the due process claims, where the detainees had alleged violations of their constitutional rights to counsel and to a full and fair hearing.23 Judge Chen noted that the parties disagreed regarding whether the detainees had to demonstrate an actual injury to make a successful procedural due process argument.24 ICE relied on Lewis v. Casey,25 where the Supreme Court required convicted prisoners to “show that they had actually been hindered in pursuing their legal claims.”26 The Lyon detainees distinguished their circumstances from those in Lewis, and Judge Chen agreed.27 Lewis concerned postconviction prisoners’ access to legal assistance programs in order to collaterally challenge their sentences.28 Judge Chen found that the detainees’ circumstances conformed more closely to those of the plaintiffs in Benjamin v. Fraser,29 where the Second Circuit refused to apply Lewis to pretrial detainees who were actively fighting their cases.30 Judge Chen emphasized that just as the Benjamin plaintiffs needed access to counsel “not to present claims to the courts, but to defend against the charges brought against them,”31 Lyon’s noncitizen detainees sought “to gather and present evidence in defending themselves against the government’s effort to deport them.”32 Unlike Lewis, which “did not concern a direct constitutional right, but an opportunity to present claimed violations of constitutional rights,”33 the court found that the phone restrictions could violate detainees’ direct constitutional “guarantee [of] a full and fair hearing, and [that] this includes access to counsel.”34
Having rejected Lewis’s actual injury requirement, the court then applied the Ninth Circuit test for a procedural due process claim outside Lewis-like circumstances.35 Judge Chen found that in order to satisfy the injury requirement, a plaintiff does not have to prove that an alleged violation “actually affected”36 the outcome of a proceeding, only that it “‘may’ or ‘potentially’ affect the outcome . . . ; there are ‘plausible scenarios’ in which outcomes are affected.”37 The court held that detainees had submitted enough evidence that the detention centers’ restrictions could have affected the outcome of their cases to satisfy the Ninth Circuit’s injury requirement for a procedural due process claim.38
The court then examined competing legal frameworks for evaluating a due process claim in the detention context.39 It first applied the Mathews v. Eldridge40 balancing test to determine if detainees’ due process rights had been impinged upon by the facilities’ telephone restrictions.41 Judge Chen concluded that the detainees had a significant interest in avoiding deportation42 but that he could not grant summary judgment — there were still too many outstanding factual disputes for him to adequately balance the risk of erroneous rights deprivation43 with the government’s interest.44 He then applied the Turner v. Safley45 four-factor test to evaluate whether restrictions that impinge on due process rights could nevertheless be upheld for being “reasonably related to legitimate penological interests.”46 The court found that the same disputes of material fact precluded summary judgment.47
The Lyon court located a new constitutional avenue to bring noncitizen detainees’ right to counsel closer to that of criminal detainees. Despite the parallels between the criminal and immigration enforcement systems, noncitizen detainees have almost none of the procedural protections of criminal detainees.48 Noncitizen detainees’ constitutional and statutory rights to counsel are usually read synonymously. The Lyon court both separated these rights and expanded the constitutional right to counsel to include access to that counsel. It therefore brought noncitizens’ procedural right to counsel protection one step closer to its Sixth Amendment criminal analogue.
The experience of a noncitizen awaiting deportation proceedings looks a lot like that of a criminal defendant. She will be picked up by a uniformed enforcement agency and can be locked up in jail to await the progression of her case. Yet the parallel does not extend to procedural protections — she might have no bond hearing,49 will be assigned no counsel,50 and might never even see a judge before being deported.51 Although these similarities have not escaped the Supreme Court, which recognizes the gravity of deportation as a potential consequence, the Court still distinguishes deportation from punishment.52 Removal proceedings are still civil.53 Unlike criminal defendants, when noncitizens defend themselves against the government in immigration proceedings, they have no Sixth Amendment right to counsel.54
Like other defendants in civil proceedings, however, noncitizens in removal proceedings have a constitutional due process right to a full and fair hearing.55 Congress additionally grants noncitizens the statutory right to retain their own counsel, not at government expense.56 Because courts usually find these constitutional and statutory rights to counsel to be coextensive,57 when they evaluate alleged violations of the right to counsel they do not distinguish substantively the right’s statutory and constitutional origins.58
Courts find this amalgamated right to counsel much less protective than the Sixth Amendment.59 They accept violations only where the noncitizen has been wholly deprived of her ability to retain counsel60 or her counsel’s ability to represent her at a hearing.61 In contrast, the Sixth Amendment both protects reasonable access to retained counsel and mandates effective assistance. The Ninth Circuit has upheld a constitutional right to effective assistance of counsel in the immigration context,62 but the right has no teeth. The Board of Immigration Appeals (BIA) in Matter of Lozada63 set out stringent requirements to reopen a case based on an ineffective assistance of counsel claim.64 Although the right to effective assistance of counsel stems from the Constitution, courts still defer to the BIA interpretation.65 The Supreme Court has held that a criminal defense attorney’s failure to advise her client of the immigration consequences of a criminal conviction constitutes ineffective assistance of counsel.66 Ironically, the Lozada standard means an immigration lawyer who fails to accurately advise her client of immigration consequences is better insulated.
The Lyon court’s opinion broke with these implicit interpretational conventions: it split the detainees’ statutory and constitutional rights. First, the court applied Ninth Circuit precedent requiring that any violation of the right to counsel be “tantamount to denial of counsel” only to the statutory right.67 Although both cases it cited found the statutory and constitutional rights indistinguishable,68 the court used them as evidence for a uniquely constrictive statutory right.
Second, the court also declined to find plaintiffs’ statutory right to a full and fair hearing coextensive with their constitutional right. The court implicitly questioned whether the statutory right relates to the constitutional one at all. Instead, it found that the statutory language69 bore no connection to the gathering of evidence, but only to its presentation.70 The court refused to extend the statutory right in any direction that could have been justified by its constitutional analogue.
Third, sidestepping the debate about ineffective assistance of counsel, the court located a new constitutional right usually reserved for criminal detainees: the right of access to counsel.71 The court buried the most significant part of the opinion in its analysis of the actual injury requirement72: it summarily found that in the context of deportation proceedings, “detainees have a Fifth Amendment guarantee to a full and fair hearing, and this includes access to counsel (of their own choosing).”73 Through finding potential violations of access to counsel rather than ineffective assistance of counsel, the court was able to avoid deference to the BIA on its constitutional determination. Instead, because the court explicitly compared the situation of detained noncitizens to that of pretrial criminal detainees,74 it was able to look to constitutional precedent in the criminal detention context. Tellingly, the primary criminal case upon which the court relied not only evaluated due process violations, but also leaned heavily on Sixth Amendment protections.75 The court therefore subtly brought noncitizens’ constitutional right to counsel closer to criminal detainees’ Sixth Amendment protections, without wading into the controversial waters of ineffective assistance of counsel.
Although the Lyon parties eventually settled, precluding a judgment on the merits, the court’s analysis could provide a new framework to argue noncitizen right to counsel claims. By treating the statutory and constitutional rights to counsel the same, but remaining silent on whether their boundaries are exactly coextensive, the Ninth Circuit had left open the door for a court to distinguish them. The Lyon court used this silence to find the statutory language narrow and the constitutional right broad. But by separating the statutory and constitutional rights to counsel, the court allowed due process in removal proceedings to overlap more with its criminal analogue. Its findings may therefore represent a new avenue to bring noncitizens’ right to counsel protections closer to those guaranteed under the Sixth Amendment.