The Daily Q: Are people facing deportation entitled to due process?

Posted December 19, 2011 By Sasha Chavkin

Are people facing deportation entitled to due process?

This week, a study in Cardozo Law Review showed that immigrants in New York City facing deportation proceedings frequently do not have lawyers. In the city, 60 percent of detained immigrants do not have counsel by the time their cases are complete, and 27 percent of nondetained immigrants do not have counsel. Among those who do have lawyers, one-third received “inadequate” counsel and 14 percent had “grossly inadequate” counsel, according to a survey of immigration judges conducted for the study. “Some fail to present key evidence or witnesses,” writes Kirk Semple in The New York Times. “Others simply do not show up.”

At The New York World, the findings raised questions to us about the rules governing deportation cases. We want to know: Are people facing deportation entitled to due process?

What we heard

The short answer to today’s question is yes – but those rights are limited.

Peter Markowitz, the law professor who wrote the new Cardozo Law Review study on deportation proceedings, said that constitutional due process rights extend to immigration cases. “The Supreme Court has unequivocally held that people in deportation proceedings do get the constitutional protections of due process,” he said.

But deportation proceedings are civil rather than criminal cases. While criminal defendants have a right to a court-appointed attorney, civil defendants do not. Immigrants facing deportation also do not enjoy the same “Miranda” protections against self-incrimination that criminal defendants do. Usually, evidence obtained in violation of Miranda cannot be used in court. But in immigration courts, incriminating statements by a defendant can be used in court, except when the evidence is obtained through “egregious” constitutional violations such as racial profiling, said Markowitz.

On the plus side, like criminal defendants, those facing deportation proceedings must be informed of the specific charges they face. Elaine Komas, a spokeswoman for the Executive Office for Immigration Review, the branch of the Justice Department that oversees immigration courts, noted that deportation cases begin with “master calendar” hearings, similar to arraignments, in which judges must ensure that the immigrant understands the charges against them. And defendants are free to supply their own counsel. “An alien in removal proceedings may seek representation at his or her own expense,” said Komas. She added that judges will provide immigrants in deportation cases with information on free legal representation in the area, and that her agency maintains a state-by-state list of pro bono legal service providers.

As Markowitz’ report showed, many immigrants facing deportation proceedings have no lawyer or an inadequate one – often making their right to due process a difficult one to exercise.

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<h1>The Daily Q: Are people facing deportation entitled to due process?</h1><h3>Are people facing deportation entitled to due process?</h3>
<a onclick="javascript:pageTracker._trackPageview('/outgoing/www.thenewyorkworld.com/wp-content/uploads/2012/01/dailyQ2-01.jpg');" href="http://www.thenewyorkworld.com/wp-content/uploads/2012/01/dailyQ2-01.jpg"><img class="alignleft size-full wp-image-2600" title="dailyQ2-01" src="http://www.thenewyorkworld.com/wp-content/uploads/2012/01/dailyQ2-01.jpg" alt="" width="105" height="105" /></a>
This week, a <a onclick="javascript:pageTracker._trackPageview('/outgoing/www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf');" href="http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf" target="_blank">study</a> in Cardozo Law Review showed that immigrants in New York City facing deportation proceedings frequently do not have lawyers. In the city, 60 percent of detained immigrants do not have counsel by the time their cases are complete, and 27 percent of nondetained immigrants do not have counsel. Among those who do have lawyers, one-third received “inadequate” counsel and 14 percent had “grossly inadequate” counsel, according to a survey of immigration judges conducted for the study. “Some fail to present key evidence or witnesses,” <a onclick="javascript:pageTracker._trackPageview('/outgoing/www.nytimes.com/2011/12/19/nyregion/judges-give-low-marks-to-lawyers-in-immigration-cases.html');" href="http://www.nytimes.com/2011/12/19/nyregion/judges-give-low-marks-to-lawyers-in-immigration-cases.html" target="_blank">writes</a> Kirk Semple in The New York Times. “Others simply do not show up.”
At The New York World, the findings raised questions to us about the rules governing deportation cases. We want to know: Are people facing deportation entitled to due process?
<h3>What we heard</h3>
The short answer to today’s question is yes – but those rights are limited.
Peter Markowitz, the law professor who wrote the new Cardozo Law Review study on deportation proceedings, said that constitutional due process rights extend to immigration cases. “The Supreme Court has unequivocally held that people in deportation proceedings do get the constitutional protections of due process,” he said.
But deportation proceedings are civil rather than criminal cases. While criminal defendants have a right to a court-appointed attorney, civil defendants do not. Immigrants facing deportation also do not enjoy the same “Miranda” protections against self-incrimination that criminal defendants do. Usually, evidence obtained in violation of Miranda cannot be used in court. But in immigration courts, incriminating statements by a defendant can be used in court, except when the evidence is obtained through “egregious” constitutional violations such as racial profiling, said Markowitz.

On the plus side, like criminal defendants, those facing deportation proceedings must be informed of the specific charges they face. Elaine Komas, a spokeswoman for the Executive Office for Immigration Review, the branch of the Justice Department that oversees immigration courts, noted that deportation cases begin with “master calendar” hearings, similar to arraignments, in which judges must ensure that the immigrant understands the charges against them. And defendants are free to supply their own counsel. “An alien in removal proceedings may seek representation at his or her own expense,” said Komas. She added that judges will provide immigrants in deportation cases with information on free legal representation in the area, and that her agency maintains a state-by-state list of pro bono legal service providers.
As Markowitz’ report showed, many immigrants facing deportation proceedings have no lawyer or an inadequate one – often making their right to due process a difficult one to exercise.

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