NIJC, CLINIC, NWIRP, NIF, and the BC law clinic filed a Petition for Rulemaking today, asking EOIR to begin rulemaking to permit Immigration Judges to appoint counsel in certain circumstances.  The argument we make is that in some hearings, for removal proceedings to be fundamentally fair, counsel should be appointed.  Assuming arguendo that there is no Fifth Amendment right to counsel, across the board, the case law would support a more limited right to counsel in certain types of cases.  The Petition for Rulemaking does not address payment where counsel is appointed, though certainly we do believe that some compensation would be appropriate.  But the first step as we see it is to protect the rights of pro se individuals who aren't receiving a fair hearing.  The Petition suggests the following regulatory language:

(c) Counsel may be appointed for an indigent alien only where the Immigration Judge concludes that appointment of counsel is necessary in order for the proceedings to be fundamentally fair. In making this determining, an Immigration Judge shall consider:

(1) The alien’s ability to read, write, and comprehend the English language;

(2) The complexity of the relevant statutory and regulatory provisions;

(3) The complexity of the application of the relevant statutory and regulatory provisions to the facts of the case;

(4) The nature of the claims being advanced in the proceedings;

(5) Whether the respondent is detained;

(6) The nature of the due process interest at stake;

(7) An alien’s ability to conduct proceedings on his or her own behalf;

(8) Health or any other exigent circumstances that necessitate an efficient proceeding;

(9) Any other factors that warrant the appointment of counsel.

Where a respondent makes a facially plausible claim to U.S. citizenship, and does not obtain private counsel or free legal counsel, the Immigration Judge shall appoint counsel to represent the respondent unless the respondent indicates his desire to proceed forward without counsel.

A pdf version of the petition can be downloaded here:

Thanks are due to many individuals for their assistance in reviewing and improving this Petition, and to Jones Day for its pro bono assistance.