The Supreme Court has issued a decision which strongly suggests immigrants should be appointed counsel in removal proceedings. Although the decision does not address immigration at all, it sets forth a standard for appointment of counsel in civil proceedings that, by every measure, should apply to immigration proceedings.

In Turner v. Rogers, the Supreme Courts considers whether a court must appoint an attorney to poor defendants in a civil case (like child support enforcement) if the result of the trial could be jail time.

Although the court did not hold that appointment of counsel is required in every civil matter, its application to immigration proceedings is clear.

In fact, in their briefing the party arguing against appointment of counsel argued that such a ruling would likely lead to requiring attorneys in “immigration and extradition cases.”

When the Supreme Court finally issued its decision in June, 2011, it didn’t mention immigration, but it did say appointment of counsel in civil cases might be required by the Fifth Amendment’s due process. The Supreme Court said the following factors must be considered:

(1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].”

The Supreme Court noted that there were some circumstances where appointment of counsel would not be required, when alternative procedural safeguards are in place. But when no alternative procedural safeguards were present, then appointment of counsel may be required.

Comparing Turner v. Rogers to Immigration Proceedings

It is difficult to distinguish the holding from Turner v. Roe with the reality of immigration proceedings. Immigrants, probably more than any class of litigants, have the fewest rights to representation while they navigate the most complicated laws on the books.

Immigrants who can’t afford attorneys are left to fend for themselves, with the result often being deportation when relief was available. If appointment of counsel might be required for a parent facing civil contempt proceedings in a child support case, it’s hard to imagine why appointment would not also be required in immigration proceedings.