The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) overhauled the process by which aliens are either expelled from or prevented from entering the United States. For cases starting on or after April 1, 1997, there is a single removal proceeding.

Removal Proceedings

The IIRAIRA created one uniform procedure for removing aliens, rather than the previously separate deportation and exclusion proceedings. IIRAIRA calls the uniform procedure for expelling noncitizens from the United States "removal."

Fair Hearing

The Due Process Clause of the Fifth Amendment of the United States Constitution applies to removal proceedings. For a noncitizen in removal proceedings, this generally means that he or she is entitled to a fair hearing.

Privilege to be Represented by Counsel

While neither the requirements of due process nor the IIRAIRA require the appointment of counsel for the alien at government expense, the alien does have the privilege to be represented by counsel pursuant to the Immigration and Nationality Act (INA), and a list of available pro bono counsel must be provided to the alien. The alien has a fundamental right to obtain counsel of his or her choosing at his own expense.

There are three elements of the privilege to representation:

  1. It is a privilege that an alien may or may not choose to exercise. Due process is not denied when representation by counsel is voluntarily waived.
  2. Counsel must be obtained at no expense to the government. There is at present no provision for assigned counsel, even for indigent aliens, or for payment of counsel fees. The alien must be provided with a list of pro bono counsel. This list must be made generally available, and the alien is not required to request the list.
  3. Counsel must be qualified to practice in immigration cases.

Ineffective Assistance of Counsel

Ineffective assistance of counsel constitutes a denial of due process when an alien did not receive a fundamentally fair hearing because he or she was prevented from reasonably presenting his or her case.

An alien may file a motion to reopen based on ineffective assistance of counsel. To support a claim of ineffective assistance of counsel, an aggrieved party must:

  • Submit an affidavit setting forth in detail the agreement entered into with counsel regarding the person's representation
  • Present evidence that counsel was informed of the allegations of ineffective assistance and given an opportunity to respond
  • Either show that a complaint against counsel was filed with the proper disciplinary authorities or explain why no such complaint was filed