A "Fundamentally Unfair" Removal Proceeding: Denial of Due Process and Ineffective Assistance of Counsel in Contreras v. Attorney General

Abstract

On January 4, 2012, in Contreras v. Attorney General of the United States, the U.S. Court of Appeals for the Third Circuit held that the Fifth Amendment due process right to effective assistance of counsel does not apply to immigration filings prior to removal proceedings. The court reasoned that this is the case even if counsel’s mistakes jeopardize a subsequent removal preceding. In so holding, the court failed to recognize that the fundamental fairness of a removal hearing may be based on years of process and that pre-proceeding asylum applications are inextricably linked with removal procedures themselves. This decision leaves immigrants without a remedy when their attorneys make mistakes that negatively affect their removal proceedings.