Toward a Meaningful Right to Counsel for Refugees in Exclusion Proceedings


Tens of thousands of aliens, fleeing political or economic conditions in their countries of origin, present themselves at United States’ borders yearly.’ As applicants for admission, the burden of proof rests wholly on them to show that they are not subject to exclusion for one of the grounds specified in the Immigration and Nationality Act (INA or the Act). Many of these aliens are not in possession of a visa or other valid entry papers and may be excluded on this or other grounds. For these aliens, the only means of gaining admission to the United States is to obtain refugee status by executive order, by submitting an application for political asylum to the district director of the Immigration and Naturalization Service (INS), or by suspension of deportation, a form of discretionary relief, upon meeting the statutory definition of refugee. Within the meaning of the Act, a refugee is an individual who is “unable or unwilling” to return to the country of last residence or nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…

As courts have noted, this language was lifted from the United Nations Protocol Relating to the Status of Refugees10 and incorporated into the INA by the Refugee Act of 1980. The Refugee Act has been said to “[reflect] one of the oldest themes in America’s history-welcoming homeless refugees to our shores.” In general, the purpose of the Refugee Act has been characterized as intending “to regularize, not hinder” the entrance of refugees into the United States. The administrative procedures by which the INS “regularizes” admission, deportation, and exclusion are set forth in the Act, the agency regulations, and the agency operating instructions. Despite all humanitarian intentions, the special characteristics of the refugee population together with the cumbersome, self-serving nature of bureaucratic response have shown these procedures to be inadequate and violative of basic fairness in a crisis context. The Mariel Boat lift of refugees from Cuba in 1980 and the tremendous influx of refugees from Haiti during the same period served to publicize, if not precipitate, such a crisis in immigration processing.

Though current statutory shortcomings have operated to hinder as well as to regularize the asylum and exclusion process, the Reagan administration has proposed amendments to the INA that would impose additional obstacles further limiting the rights of incoming refugees under statutory law. These “proposed limitation[s] on the applicant’s right of advocacy [would] severely [undercut] the fairness of the [already strained] system in determining asylum claims.” As John Shattuck, National Legislative Director, American Civil Liberties Union, has proclaimed:

We must not lose sight of the fact that the right of asylum is in many ways the most basic of all human rights. This country was founded and was build [sic] on a promise of open doors to those who seek to escape persecution for religious, political, or ethnic reasons. The Reagan administration now proposes to weaken that promise in order to cut down on the flow of Cuban and Haitian refugees.

Without the full panoply of legal safeguards the immigration system has shown itself incapable of providing basic fairness in the exclusion process and without basic fairness this country has promised little.

This Note -will focus on the refugee’s right to legal representation in political asylum and exclusion proceedings. It will sketch the current sources, status, and inadequacies of this right. It will also explore the derogation of the right to legal counsel in practice as illustrated in particular by the recent crisis over the processing of Haitians by INS. Finally, this Note will propose statutory and administrative changes that would assure every potential asylee a meaningful right to representation and fair consideration of his or her claim of persecution.


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