Making Rights Real: Effectuating the Due Process Rights of Particularly Vulnerable Immigrants in Removal Proceedings Through Administrative Mechanisms

Abstract

Immigration removal proceedings provide insufficient due process protections to certain immigrants. Vulnerable immigrants who cannot adequately represent themselves are expected to do so even if they cannot afford an attorney or qualified Board of Immigration Appeals (BIA) representative. This Note argues that the Department of Justice’s (DOJ) Executive Office of Immigration Review (EOIR) can and should pass regulations that safeguard particularly vulnerable immigrants’ due process rights. These regulations should instruct immigration judges (IJ) to affirmatively determine whether due process requires that a qualified legal representative—either an attorney or BIA representative—advocate for a particularly vulnerable immigrant in a removal proceeding before an IJ decides the case on its merits. The rules would constitute an administrative framework that safeguards immigrants’ due process rights. This proposed administrative framework is rooted in a reading of current common and statutory law that allows the Attorney General to delegate the necessary authority to IJs to effectuate the suggested regime.