A court has recently ruled that a removal or deportation order is invalid if the Immigration Judge fails to inform the alien of the availability of free legal services.
The alien in this case had pleaded guilty to conspiracy to possess and distribute 50 grams or more of crack cocaine and was sentenced to 168 months behind bar.
While in prison, he was served with a Notice To Appear (NTA) before an Immigration Judge due to his aggravated felony conviction and controlled substance conviction.
The first NTA did not indicate the time and date of the hearing but referred to a list of organizations and attorneys providing free legal advice. The list however was not in the administrative record.
The second notice indicated the hearing date, time and place but did not check the box for the “Legal Services List.”
When the alien appeared at the hearing held at the county prison, the Immigration Judge asked him if he was seeking an attorney to represent him but he replied that he didn’t have the money to hire one. The Judge did not tell him of the availability of free legal services nor did he ask him if he had received the legal services list. He was eventually ordered to be deported due to the aggravated felony conviction.
The alien appealed the deportation order to the Board of Immigration Appeals but was unsuccessful. So he filed a petition for review before the Court of Appeals for the third circuit.
At the hearing, the alien through his appointed counsel, contended that the Notice To Appear was deficient thus denying him an opportunity to be heard. He also argued that the failure of the Immigration Judge to inform him of the availability of free legal services deprived him of his constitutional right to due process and his statutory right to be represented by an attorney.
He cited a regulation issued by the Attorney General which stated that in a removal proceeding, the Immigration Judge is required “to advice the respondent of the availability of free legal services… located in the district where the removal hearing is being held” and to “ascertain that the respondent has received a list of such programs.”
The court noted that when an agency such as the Office of the Attorney General promulgates a regulation protecting a fundamental or constitutional right of the party appearing before it, the agency must comply with that regulation. Failure to comply would invalidate that action of the agency even without a showing of prejudice to the complaining party.
In holding that the deportation was invalid, the court said that the right to an attorney in a deportation hearing must be safeguarded because of the grave consequences of removal. A deported alien would have a remote possibility of returning to the U.S. thus depriving him of the right to stay and live and work in the U.S.