right to counsel beyond the narrow definition of criminal proceedings and have made it clear that the question of whether assistance of counsel is required cannot be answered by the characterization of a proceeding as civil or criminal. In deportation, too, the label attached to the proceedings should not obscure the drastic consequences of deportation for individuals and for their families, who must remain behind or abandon their own country, or deny that the real issue is whether an alien who is deported is being punished, in the common meaning of the word, for violating a provision of the immigration laws. Right to Counsel Courts have repeatedly recognized the importance of counsel as a shield against an individual's loss of personal, constitutional, and statutory rights. Yet, for the thousands who are ejected from this country every year, this protection is substantially absent. The Immigration and Nationality Act provides: In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose. [emphasis added]45 However, the statement in the basic statute that the right to counsel exists in exclusion or deportation proceedings has been read very narrowly by the INS, with resulting confusion about representation during the period surrounding apprehension and "processing" of an alien. The INS, in commenting on this chapter, stated: The report also speaks of a denial of right to counsel by Service practices, and confusion as to when such rights attaches. As noted in the report, 8 CFR 287.3 as amended makes clear that after the examining officer has determined that formal proceedings will be instituted "In re Gault, 387 U.S. 1 (1966) (civil commitment of a juvenile); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation). 45 8 U.S.C. 1362 (1976). 46 Castillo Letter. In light of the severe consequences of the penalty of deportation, it is the view of this Commission that the right to counsel should be available at all critical stages of the deportation process rather than solely at formal deportation proceedings. 478 U.S.C. §1362 (1976). 48 44 Fed. Reg. 4651 (1979) (to be codified in 8 C.F.R.). against the alien, an alien arrested without warrant shall be advised of the reason of his arrest and of his right to be represented by counsel of his own choice, at no expense to the Government. Such alien is also provided, at this time, with a list of the available free legal services programs qualified under Part 292a of 8 CFR located in the district where his deportation hearing will be held. Both of these provisions go beyond what is required by the statute and the Constitution.46 The Immigration and Nationality Act provides that persons have the privilege of legal representation only when they are placed under formal deportation (as well as exclusion) proceedings." The advisement of the availability of free legal services programs to provide counsel to arrested persons is also limited to the situation where persons are placed under formal proceedings.48 Only a small number of arrested persons actually receive a deportation hearing. As noted in the report, many arrested persons elect voluntary departure without an opportunity to consult with counsel. Testimony received by the Commission, but denied by INS, alleged that in some instances arrested persons were told that voluntary departure would not be available to them if they chose to proceed with a deportation hearing.49 Those who elect voluntary departure are potentially waiving their eligibility under the immigration laws for relief from deportation that would entitle them to remain in this country lawfully. Although deportation is among the most severe punishments that can be imposed, 50 persons subject to the deportation process receive the right to counsel only after the institution of formal deportation proceedings. On the other hand, defendants in criminal cases have the right to counsel at all critical stages of the proceedings. In the criminal justice system, the right to counsel is deemed fundamental.51 Thus, the Supreme Court has held, on numerous occasions, that effective assistance of counsel must be available at all critical stages of the proceedings. 52 In Miranda v. Arizona, 53 the Supreme Court recognized the crucial potential for coercion and "See "Right to Impartial Hearing" section of this chapter of the report. so See "Deportation as a Civil Proceeding" section of this chapter of the report. 51 See Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama, 287 U.S. 45 (1932). 52 See Powell v. Alabama, 287 U.S. 45 (1932); Hamilton v. Alabama, 368 U.S. 52 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); U.S. v. Wade, 388 U.S. 218 (1967); Coleman v. Alabama, 399 U.S. 1 (1970). 53 384 U.S. 436 (1966). intimidation that was present in the interrogation of a person in custody: We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of a crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.54 The Court, while requiring that suspects be advised of their rights before interrogation, also declared the right of suspects to have counsel present at the interrogation. The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. . . .A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by interrogators is not alone sufficient to accomplish that end. 55 Effective assistance of counsel is similarly important for a person facing deportation, for the time between the initial encounter with an immigration agent and the deportation hearing is often precisely the time when the accused is most helpless and vulnerable to improper pressures. During field investigations and preliminary investigations at INS facilities, conditions are ripe for overzealousness. 56 Many people are convinced that the denial of right to counsel remains a serious problem, and the 54 Id. at 467. 55 Id. at 469-70. 56 For example in Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977), after 4 hours of interrogation, late in the night, petitioner signed a statement in Spanish admitting her illegal presence in this country. The facts surrounding the incident supported her contention that the statement was the product of psychological coercion, intimidation, and misrepresentation of facts by the INS interrogators. Petitioner was approached from behind at approximately 10 p.m., as she was about to enter her apartment. Without addressing her by name, a man identified himself as an INS agent. The agent requested identification, which she said was inside her apartment. Extremely frightened by this latenight approach and convinced that she had no choice but to cooperate, she opened her door and was followed in by two INS agents. She was questioned for approximately 1-1/2 hours and then taken to the INS office, where she was questioned further until 2 a.m. One agent told her that she must leave the country in 2 weeks. When she protested that she needed more time, the agent reiterated that she must leave in 2 weeks; he characterized the offer as a fair deal for her. Throughout this interrogation session, the agent insisted that she had no other choices but to accept the 2week departure deadline. Fearing that she would not be permitted to go Commission has received allegations of INS excesses during factory raids pertaining to the right to counsel. One witness stressed how INS interrogations during raids were designed to eliminate any outside assistance to the alien, even from attorneys. [T]his is all done in an extreme custodial situation, without the person being apprised of their rights or without the person having any understanding of what the implications are, without an opportunity to see and consult a lawyer, a friend, family. [S]o the situation is one inherently set up so that persons, whether or not they have papers or are not going to talk to INS, are going ultimately to answer the sorts of questions which will result in their deportation. [emphasis added]57 Another witness pointed out the need to clarify the point at which a person in custody is entitled to have counsel: I think one other problem that has to be alluded to in this entire process is the fact that it is very unclear at what point in this process that has been described to you-both the interrogation that takes place at the factory and also if people are then moved down to the Immigration Service, a further interrogation or what is called by the INS as processing. . .at what point are people informed that they have a right to counsel. It is unclear at what point they are advised that anything they say may be used against them in subsequent hearings, and thirdly, it is unclear at what point they can in fact be given access to counsel-namely, at what point, if there is an attorney out there who is waiting to see the person, and let us say the person is now down in the detention center of INS, it is unclear at what home until she cooperated, she signed the statement, which admitted that she was illegally in this country. Although the printed form that she signed said that her statement must be freely and voluntarily given, could be used against her in subsequent proceedings, and listed other rights afforded her, she claimed that this was never read or explained to her, including her right to a deportation hearing. She was led to believe that the best deal available to her was the agent's offer to delay her departure by 2 weeks. Id. at 805. In Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir., 1960), the petitioner was interrogated for 7 hours, ending in the early hours of the morning, where he was told that if he did not make a statement that was in conformity with accusations against him, he would be prosecuted for perjury or deported within 3 weeks. After the interrogation, petitioner could not sleep and early the next morning complied with the interrogator's wishes. Petitioner challenged the admissibility of the statement, and the court concluded that the involuntary statement could not be used because it violated an essential element of due process. 57 Mark Rosenbaum, attorney, ACLU, testimony before the California Advisory Committee to the U.S. Commission on Civil Rights, open meeting, Los Angeles, June 15-16, 1978, p. 337 (hereafter cited as Los Angeles Open Meeting Transcript). point they are entitled to see that lawyer, and I think that presents some real problems and somehow needs to be addressed. 58 In the Los Angeles district of the INS, agents are instructed to complete a form I-213, "Record of Deportable Alien," before allowing an alien to contact his or her attorney. In any case where the alien desires an attorney the Form I-213 will be completed as set forth in the above paragraph. No additional questions relating to deportability or criminal activity will be directed to him without the attorney's consent or presence. The alien will be allowed to contact his attorney upon completion of the Form I213. [emphasis in original]59 The directive given in the Los Angeles district may also be policy in other areas, as illustrated by the testimony of a Texas attorney: They took 213s [record of deportable alien] from them and ironically they told them they had a right to an attorney. And when they said, "Our attorneys are right outside the door; we can see them through the little small holes in the door there. We want to talk to him," they said, "No, we'll let them talk to you after we take your statement."60 Assistance that counsel may be able to provide after a person has been "processed," however, may be only illusory where that processing extracts sufficient information to make a deportation hearing a mere formality. The damaging effect that the processing may have for the person interrogated is made clear by instructions given by the Los Angeles district director: In the field, if the person admits alienage and facts establishing unlawful presence in the United States, the interrogating officer should if at all possible, execute Form SW-424 on the spot... The Form SW-424 properly completed will establish deportability. Consequently, if the alien states he wants an attorney and/or declines to answer questions upon being given the Miranda warning, the information from the Form SW-424 will be utilized to record data as to alienage and time, place and manner of entry 58 Peter Schey, attorney, Legal Services Alien Rights Programs, testimony, Los Angeles Open Meeting Transcript, pp. 344-45. 59 Los Angeles District Director, INS, memorandum to Investigations Unit, Feb. 10, 1978. 60 Laurier McDonald, testimony before the Texas Advisory Committee to the U.S. Commission on Civil Rights, open meeting, San Antonio, Sept. 1214, 1978, p. 30 (hereafter cited as Texas Open Meeting Transcript). on the Form I-213 [record of deportable alien]. [emphasis added]1 It should also be noted that the elements of time, place, and manner of entry are the precise elements required to convict an alien of the criminal offense of illegal entry.62 That many legal rights were endangered by the processing stage of immigration law enforcement was recognized in 1931 by the Wickersham Commission: One of the most striking features of the entire procedure is the lack of counsel for the suspects. No attorneys are allowed in the preliminary examinations, and even at the warrant hearings the persons with whom the processes of deportation laws are apt to come into contact generally have no funds with which to procure lawyers. In the great majority of cases, suspects have no one at any stage of the proceedings to protect their rights. . . .In the first part of this report examples have been given of the many cases in which, when attorneys were present, they were able to establish additional facts or the proper construction and application of the laws and thereby prevent deportation which would otherwise have been effected. In all probability a great many unrepresented persons have been deported whom lawyers could have saved.63 One measure recommended by the Wickersham Commission to help alleviate the problems it saw was to have suspects informed of the availability of free legal services provided by charitable organizations. Nearly 50 years later, this recommendation was implemented by the INS. A new regulation now provides that: aliens under exclusion and deportation proceedings must be advised of the availability of free legal services programs, and organizations recognized pursuant to 8 C.F.R. 292.2. . . .These final rules are necessary and intended to establish procedures for informing aliens of the availability of free legal services programs in order to afford them full opportunity to obtain legal representation when involved in deporta 61 Los Angeles District Director, INS, memorandum, to Investigation Unit, Feb. 10, 1978. 62 8 U.S.C. §1325 (1976). 63 National Commission on Law Observance and Enforcement (Wickersham Commission), Report on the Enforcement of the Deportation Laws in the United States (1931), pp. 143-44. tion or exclusion proceedings before this Service.64 Significantly, even this measure was adopted by INS only after lawsuits were instituted challenging the unavailability of legal counsel in the deportation process.65 This new provision for informing aliens of the availability of legal services, however, does nothing to eliminate the greatest difficulties in the system. By its terms, the regulation still applies only to those who are placed under formal deportation proceedings, a token number of those apprehended. When asked how many people this new regulation would affect, Chief Immigration Judge Herman Bookford 66 replied, "Well, the last figures that I saw were that 800,000 people were given voluntary departure without hearing. We had 60,000 hearings last year."67 The urgency for meaningful reform in the due process rights of aliens is highlighted by figure 7.1, which illustrates the comparatively small percentage of people who will benefit from the new regulation. Right to Bail Today, with the eighth amendment to the Constitution creating an implicit right to bail,68 and various statutes creating an explicit right to bail,69 this right is not often subject to dispute.70 Questions concerning bail have generally revolved around its administration and standards for granting bail, with the criminal justice system struggling to devise an equitable and just answer to such questions, as seen in the Bail Reform Act of 1966. The quasi-criminal bail system administered under the Immigration and Nationality Act (INA)," with no comparable reform, lags behind the criminal justice system. Bail in criminal cases is meant "to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and 64 44 Fed. Reg. 4651 (1979). 65 Munoz v. Bell, No. CV-77-3765-WP, District Court, Central District of California. That case was later dismissed with the consent of both parties. Munoz v. Bell, No. CV-77-3765-WP (C.D. Cal. Oct. 4, 1979) (order entered). 66 Mr. Bookford retired from the Service in September 1979. He was the Chief Immigration Judge from August 1976 until his retirement. 67 Bookford Testimony, Washington Hearing Transcript, p. 275. 68 The eighth amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." 69 See, for example, the Bail Reform Act of 1966, 18 U.S.C. §§3141-3151 (1976). 70 This right in immigration cases was challenged in one notable exception, Carlson v. Landon, 342 U.S. 524 (1951). This case arose out of the general judgment of the court."2 Bail as administered by INS is analogous to bail in criminal cases and should provide the safeguards instituted in the criminal law. arena through the Bail Reform Act.73 The Bail Reform Act provides: Any person charged with an offense other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required. . Under this provision of the Bail Reform Act, a person has a right to release on his or her own recognizance or upon execution of a bond, unless the judicial officer determines that such release will not ensure the person's appearance. Bail is not to be used for any purpose other than to secure the appearance of the accused, and the burden is on the Government, should it want to detain the accused, to establish that he or she is likely to abscond. The Immigration and Nationality Act provides: Any.. alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (1) be continued in custody; or (2) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (3) be released on conditional parole. But such bond or parole, whether heretofore or hereafter authorized, may be revoked at any time by the Attorney General, in his discretion, and the alien may be returned to custody under the warrant which initiated the proceedings against him and detained until final determination of his deportability,75 "Red scare" of the 1950s. It involved alleged members of the Communist Party who were also aliens. These people were arrested without warrants and held without bond. They appealed the refusal to set bond. The Supreme Court held that "the Attorney General may, in his discretion, hold in custody without bail, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, when there is reasonable cause to believe that their release on bail would endanger the safety and welfare of the United States." 71 8 U.S.C. §1252(a) (1976). 72 Black's Law Dictionary 177 (rev. 4th ed. 1968). 73 Bail Reform Act of 1966, 18 U.S.C. §§3141-3151. 74 Id. at $3146(a). 75 8 U.S.C. §1252(a) (1976). 1,000,000 FIGURE 7.1 Persons Apprehended, Expelled, and Expelled Without a Hearing, 1945-76 Apprehended without hearing *Note: The recordkeeping on apprehensions changed in 1960. Figures before 1960 represent the total actually apprehended. Since 1960 figures include those located. Source: U.S., Department of Justice, Immigration and Naturalization Service, 1976 Annual Report, p. 126, extracted from Table 23. 1961. 1962. 1963_ 1964_ 1965_ 1966_ 1967_ 1968_ 1969_ 1970_ 1971_ 1972_ 1973_ 1974_ 1975_ 1976_ |