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How Important Is The Right To Representation In Immigration Court?

Author: US Immigration Lawyer Alena Shautsova

The right to representation in immigration court: a person in Immigration proceedings has a right to retain and be represented by a private counsel. However, there is no obligation on behalf of the government to provide a free immigration lawyer to somebody who is getting removed from the country.

There are some non-for-profit organizations that do provide free legal help, but as often, they are overwhelmed with cases and a person must meet very rigid criteria to qualify for free assistance.

The Immigration court surroundings can be intermediating for an average person. The Immigration laws are complicated and constantly changing. A person, who happened to appear in front of the judge without a representation, should not proceed on his/her own, unless he/she is prepared to leave the country forever.

How important is the right of the person to be represented? Does a judge have to give a person time to find a lawyer?

Apparently, it is a very important right, and a judge must give a person time to find a lawyer, even if that person is removable (for example somebody who submitted an aggravated felony). See a recent decision by the Board of Immigration Appeals in Matter of Hervens, BIA 8/9/13.

Mr. Hervens is a Haitian national who has lived in the US for a very long time. He has teenage daughter, and a criminal record for an aggravated felony. The government decided to deport him based on his criminal conviction. Mr. Hervens appeared pro se (without a lawyer) for his first Master (short) hearing, and then during his second Master hearing, he likewise appeared without an attorney. He did ask the judge, however, to give him more time to find counsel. The judge, after analyzing Mr. Hervens’ case and concluding that he did not qualify for any sort of relief from removal proceeded with the removal hearing, ordering Mr. Hervens removed.

On appeal, the Board of immigration Appeals held that Mr. Hervens should have a chance to hire an attorney and be represented by an attorney, sending the case back to the Immigration court. As such, person’s right to be represented is a very important right, and anybody who is considering giving it up, should make a careful and informed decision.

04 September 2013
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