Immigration Courts

Noncitizens facing removal must have a meaningful opportunity to present their cases to an immigration judge. On occasion, noncitizens are deprived of this opportunity due to their lawyers’ incompetence or mistake. Although the government has recognized the need for a remedy for ineffective assistance of counsel, see Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the framework currently used to evaluate whether ineffective assistance has occurred is severely flawed. The Council has long worked to protect the right to effective assistance of counsel for noncitizens in removal proceedings.

Long used in criminal trials, motions to suppress can lead to the exclusion of evidence obtained by the government in violation of the Fourth Amendment, Fifth Amendment, or related provisions of federal law. While the immediate purpose of filing a motion to suppress is to prevent the government from meeting its burden of proof, challenges to unlawfully obtained evidence can also deter future violations by law enforcement officers and thereby protect the rights of other noncitizens. The Supreme Court held in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that motions to suppress evidence under the Fourth Amendment in immigration proceedings should be granted only for “egregious” violations or if violations became “widespread.” Despite this stringent standard, noncitizens have prevailed in many cases on motions to suppress.

At issue in the case is whether the Constitution and the immigration laws allow an immigration judge to enter a removal order without considering whether removal would be a disproportionate penalty under the circumstances. The amicus brief by the Council and the Post-Deportation Human Rights Project tells the stories of five individuals who either already have or soon will face the extreme penalty of deportation and a permanent reentry bar for minor or nonviolent crimes committed years earlier. The men and women featured in the brief share many attributes: all were lawful permanent residents; all established significant ties to this country; all left (or will leave) behind U.S. citizen family members; all committed nonviolent crimes; all have demonstrated rehabilitation; and none was afforded the opportunity to explain to the immigration judge why forcible removal from the country was unjustified under the circumstances. The brief throws into stark relief the real life human consequences of stripping judges of the ability to consider the totality of the circumstances before entering an order of removal.