Immigrant Detainees and the Right to Counsel

Immigrant Detainees and the Right to Counsel


Published: March 30, 2013

DO immigrants who are incarcerated while their legal status is resolved deserve a lawyer?

On a given day, roughly 34,000 immigrants are held in a patchwork of local jails and prisons, awaiting court hearings that determine whether they have the legal right to remain in the United States or will be deported. The recent revelation that roughly 300 immigration detainees are being held in solitary confinement — conditions that the United Nations special rapporteur on torture and others have said can constitute torture — highlights how punitive, costly and legally fraught American immigration policy has become.

Fifty years ago, the landmark case Gideon v. Wainwright required state courts to provide counsel in criminal cases for defendants who could not afford lawyers. But people who are detained do not typically have lawyers because immigration law, unlike criminal law, does not provide a right to counsel. Immigrant detainees are allowed to hire lawyers, but more often than not, they cannot afford counsel or are shuffled through the system before they have a chance to find help.

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