Abstract
When a noncitizen in an expedited removal proceeding has a colorable claim to delay their deportation for fear of torture in their home country, a special review process occurs. Certain noncitizens face an especially stringent procedure—the reasonable fear review hearing, where a noncitizen must navigate a complex legal argument before an immigration judge to show that they meet specific statutory and regulatory criteria for relief from or delay of deportation. Congress has specified that noncitizens are entitled to access counsel at this reasonable fear review hearing; yet, all too often, the hearing takes place without attorneys present who were already retained or were willing to represent that noncitizen. In nearly half of all federal circuit courts, this absence of counsel before the immigration judge is of no legal significance. This Comment urges the view endorsed by the other half of federal circuits: noncitizens in reasonable fear review hearings are statutorily guaranteed the right to access counsel, and that statutory right is effectively denied when pro se noncitizens are required to prove prejudice from their lack of representation.
While other scholars have argued for the presumption of prejudice when access to counsel is denied in other immigration proceedings, this Comment breaks new ground by extending that presumption to the reasonable fear review hearing noncitizens face in expedited removal with a felony conviction or a reinstated removal order. Presuming prejudice in this context ensures that all noncitizens have the reasonable opportunity to access counsel for reasonable fear review hearings, animating Congress’s statutory mandate. This Comment proposes a uniquely administrable safeguard, borrowed from well-settled criminal law: immigration judges should be required to obtain a knowing and voluntary waiver of representation when a noncitizen appears unrepresented. Presuming prejudice upon review where (1) the noncitizen was not represented by counsel and (2) no valid waiver was obtained will impress upon immigration judges the seriousness of the right at issue with only minimal changes to current procedure and even a likely increase in judicial efficiency. Ultimately, this Comment provides additional support for the waiver requirement by exploring the real-world circumstances and consequences of denying access to counsel in a reasonable fear review hearing, the last chance for relief for noncitizens fearing torture upon return to their home country.
Recommended Citation
Reese Wilking,
Animating a Statutory Right: Access to Counsel for Noncitizens in Reasonable Fear Review,
73
Emory L. J.
1015
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol73/iss4/4