On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting—immigration proceedings have long been recognized to be civil in nature, and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel’s ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh Circuit, in finding that ineffective assistance of counsel in immigration proceedings does not constitute a violation of an alien’s right to due process. Every other court of appeals that addressed this issue has found that, although the Sixth Amendment does not guarantee a right to counsel in immigration proceedings, ineffective assistance of counsel may render the proceedings so fundamentally unfair and so impeding the presentation of an alien’s case that the ineffectiveness could deprive an alien of his right to due process under the Fifth Amendment. These courts have reached this conclusion in a perfunctory fashion, without squarely reconciling Supreme Court precedent that seems to argue strongly against the possibility that the ineffective assistance of counsel may constitute a violation of due process in circumstances where the Constitution does not provide a right to counsel.
On the parched plaza outside the U.S. Consulate in Monterrey, Mexico, hundreds of men and women lean against tree trunks or press their backs into the consulate wall, seeking any sliver of shade. They wait to be fingerprinted, interviewed, and – with luck – approved as one of the 175,000 guest workers admitted to the United States each year. An ordinary day in May 2005 – or perhaps not quite. Under one tree, a meeting is underway. At the center of a circle stands a labor organizer, copy of a contract in hand. Asegúrense que sus derechos sean respetados, he urges the crowd, all of whom are bound for North Carolina. “Make sure that your rights are respected.” Another man, his crisp shirt and spotless jeans belying the previous sixteen hours spent on a bus from his hometown, stands up and offers advice to the others. Cuidado con el patrón en Ranch Farm. “Careful with the boss at Ranch Farm.” He continues: “He’s still trying to get away with piece rate when he’s supposed to be paying us by the hour. Call the union’s North Carolina office if it happens to you.” Others nod assent. After half an hour of sharing information and reestablishing bonds, the group disperses. Before the week’s end, they will be thinning tobacco plants in the hot Carolina fields. For the first time in history, guest workers are about to cross the border into the United States as union members.
Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to prevent people from moving in search of work is to curtail their chance to build a decent life for themselves and their families. But from the perspective of workers in the country that receives them, the more immigrants, the more competition, and the worse work becomes.
As a nation built by immigrants, the United States has historically maintained a generally pro-immigration policy. For many Americans, however, the current immigration system appears broken. Proponents of tighter immigration controls often point to the fact that two of the terrorists involved in the attacks on September 11, 2001 received approval of their immigration applications six months after the attacks took place. This oversight proved especially embarrassing to the then Immigration and Naturalization Service (“INS”), evidencing the ease with which a terrorist could enter the United States. With terrorism currently the chief policy concern of the United States, immigration issues play an increasingly important role on the American national security agenda.
The United States has been the pioneer of democratic values on the stage of world history for over two hundred years. The foundation of a democracy is the right of the governed to elect their political leaders. As President Lyndon B. Johnson told Congress in 1965, Americans have “‘fought and died for two centuries’” to defend the principle of “‘government by consent of the governed.’”
Despite these democratic values, one particular group in our country is governed but has lost the right to vote – noncitizen legal permanent residents (“LPRs”). Noncitizen LPRs are legal immigrants. They are foreign-born individuals who have been granted legal permanent resident status by the U.S. government. This status allows them to live and work in the country indefinitely. Noncitizen LPRs pay taxes at the local, state, and federal levels, they can serve in the military and are eligible for the draft, and they are subject to all the laws of the United States. Although they have all the political, social, and military obligations of citizens, noncitizen LPRs are no longer allowed to vote in any state due to the recent amendments of state constitutions, which have disenfranchised noncitizens and limited the franchise to U.S. citizens. Prior to this disenfranchisement, noncitizens legally voted in local, state, and national elections for over one hundred years.