No Right to Counsel for Applicants for Admission

When you are watching crime show on television, one of the most frequent TV lines is, “You have the right to have an attorney”. While television does not always represent reality, this line is actually true in real life situations. Throughout the United States, persons arrested for crimes have the absolute right to be represented by an attorney in court proceedings. If a person cannot afford to hire an attorney, the State must provide an attorney for them. This attorney is usually an Assistant Public Defender.

In Immigration Court, however, the right to counsel only goes so far. An Immigration Judge will advise anyone facing deportation in removal proceedings of their right to have an attorney represent them in the proceedings. The one glaring difference is that an attorney is not provided if the person cannot afford to hire an attorney. In that case, a person facing deportation must represent themselves in immigration court.

Normally, a person who is being interrogated by the police in a custodial situation also must be advised that they have the right to have an attorney present. This is not true in immigration cases. When a person arrives into the United States from abroad, and is questioned by Customs and Border Protection, they are not given the opportunity to have an attorney present. This is often referred to as secondary inspection. This is usually a room where a person is taken when there are questions about their inspection as determined by the initial inspector.

The Ninth Circuit Court of Appeals has ruled that a person who is an “applicant for admission” is not entitled to have an attorney present during detention and questioning. This includes green card holders who are returning to the United States and are stopped for crimes that may have been committed years ago. Even though they have not yet been admitted into the United States by law, they are physically present and are being detained by United States law enforcement. They should have the right, like everyone else in this country, to be represented by an attorney during custodial interrogation. In many cases, they are forced to provide sworn statements that have significant impact on their future.

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