Immigration

Right to representation by counsel in the Board of Immigration Appeals

By December 8, 2016 No Comments

The right to be represented by counsel is one of the most
important elements of due process of law.

It is mentioned twice in the immigration statute,1 and this mandate is
amplified by the regulations, which extend the right of
representation to every case pending before the Service
where an examination is required by the regulations, and
counsel in such cases is permitted to examine and cross-examine
witnesses, to introduce evidence, to make objections, and to submit briefs.

The importance of the right of representation by counsel
has been underscored by the Supreme Court in recent land
mark decisions.

The regulations require that the immigration judge fully
and fairly advise the alien, both in exclusion and depor
tation proceedings, of his right to be represented by
counsel.

However, the statute does not require that counsel be
present in every case and the alien is entitled only to the
opportunity to obtain counsel. The courts will scrutinize
the record carefully to make certain that fundamental fair
ness was accorded and that justice was done. Of course,
advised by counsel.

And a similar right of representation will be accorded
to a person who appears voluntarily and
insists upon having his counsel present. However, counsel’s
function in such situations is advisory.

Francisco Hernandez

Author Francisco Hernandez

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