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This scapegoating technique is not new, as it has intentionally existed throughout our history as a nation. 252 The scapegoating victims become such due to “[f]ear within a community with strict societal norms [whom] can view any differing variation from the norm as a threat to the continuation of the societal security.”253 The scapegoats exist when “the fear is then transferred over to vulnerable individuals who are being blamed within a bigger picture.”254 The use of fear to further other goals can be seen so far back as 1692 during the Salem Witch Trials.255 Similarly the more we learn about psychology the more we see that the true insanity lies with those who see individuals with mental illness as completely different from everyone else. The scapegoating technique creates a fear of the mentally ill population to create a more cohesive group, of everyone else.256

The comments made by LaPierre further encourage this stigmatized view, and clearly illustrates the fear tactic being used to push against the mentally ill population, while furthering gun rights for everyone else. 257 LaPierre doesn’t leave the fear induced stigma there as he pushes for a change saying “if we leave these homicidal maniacs on the street, they don’t obey the law, they could [not] care less about it, they are going to kill.”258 The assumption is: if you have mental illness you are not only a potential danger to society but a “homicidal maniac.”259 LaPierre fails, however, to provide any evidence or cite anything that would allude to his conclusion that all individuals who are mentally ill are in fact homicidal maniacs and thus cannot have guns, much less that they should not “be on the street”.260 LaPierre exemplifies the most blatant use of fear to

252. Id. 253. Andreanna Hughes, Scapegoat Hysteria: A Comparison of the Salem Witch Trials and the Red Scare, BRIDGEWATER STATE UNIVERSITY 1, 4 (2016). 254. Id. 255. See id. at 4-5 (explaining that the individuals who were considered to be witches and persecuted as such because they were not fitting within the puritan norms of the time.) 256. McMahon, supra note 243, at 11. 257. Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www.reuters.com/article /us-usa-guns/nra-chief-criticizes-navy-yard-for-being-unprotectedbefore-massshooting-idUSBRE98L0C920130922. 258. Id. (Emphasis added) 259. Id. 260. Id.

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implement the entire mentally ill population as the scapegoats for gun violence as a whole.261

This stigmatized view that the mentally ill population are such a danger to society that they are the cause for the nations gun violence has overwhelmingly spread as history passes.262 The support from individuals in power have strengthened the proposal to separate those with mental illness from the rest of the population in many ways including their constitutional rights.263 This separation ensures that their constitutional infringement will not be a priority of concern for anyone in power as the fear of the mentally ill has been pushed to the forefront of the nation. Without any political representation or broad support these individuals are left with the most serious constitutional infringement that can exist in our nation and violates the fundamental values on which our nation was founded upon.

Prioritizing Appropriate Statistics

The statistics and studies used by courts, who are furthering the stigmatized view of the mentally ill, and other leaders further exemplifies the dangers to such a stigmatized view. 264 These studies have skewed results and skewed conclusions based on the objective to find an endorsed conclusion before examining the data.265

Most of the statistics regarding mental illness and violence compares violent acts to individuals who are mentally ill or not mentally ill.266 This information focuses solely on the government’s concern for public health and safety resulting in the mentally ill

261. Id. 262. See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, (2015); See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?,

48 WAKE FOREST L. REV. 1, 14 (2013); Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685, (2006). 263. Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. & PUB. AFFS. 1, 50 (2019); See Reuters Staff, NRA Chiec Criticizes Navy Yard for Being ‘Unprotected’ Before Mass Shooting, REUTERS (Sept. 22, 2013), https://www.reuters.com/article/us-usa-guns/nra-chief-criticizesnavy-yard-for-being-unprotectedbefore-mass-shootingidUSBRE98L0C920130922. 264. See Vars & Young, supra note 266; See Silver, supra note 266. 265. Id. 266. See Silver, supra note 266.

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population being equated to a danger to the public.267 A more appropriate statistic to rely on, when discussing whether mentally ill individuals are dangerous, is to look at the mentally ill population (or more specifically those who have been involuntarily committed) and compare whether they have been violent or not.268 There is statistical evidence that our perception of mentally ill individuals as violent is false.269 The evidence is so strong that this long-held misconception can no longer be used to perpetuate the infringement upon the mentally ill populations constitutional rights.270

Harvard medical journal provided support to the McArthur study as being the best study in existence right now and providing a more accurate representation of the world today.271 The confirmation biases that exists in many of the other studies furthers the objective of the political parties and ultimately the pocket book of our nation.272 These skewed statistics and studies have thrusted us into the world we are in today; where the true issues at hand are not being dealt with and merely placed upon the backs of the mentally ill.273 And where individuals are being forced to play the part of a political pawn, and living a life without the right to recognize the Second Amendment.274

Current Legislation and Its Devastating Consequences

Explicit stigmatized language in 18 U.S.C. § 922 (g)(4) further illustrates the overall stigma of individuals with mental illness while providing congress’ approval of such stigma.275 The word choice in the code specifically illustrates the stigmatized view.276 Rather than describing the goal that the government wishes to obtain, the

267. See id. 268. Id. 269. See supra Part II(A)(1). 270. See id. 271. See Mental Illness and Violence, HARVARD HEALTH PUBLISHING & HARVARD MEDICAL SCHOOL, https://www.health.harvard.edu/newsletter_article /mental-illness-and-violence (last visited Dec. 10, 2020). 272. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, (2013); Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. & PUB. AFFS. 1 (2019). 273. Id.; See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, (2015); Silver, supra note 266. 274. Id. 275. 18 U.S.C. § 922(g)(4). 276. Id.

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government describes “dangerous” individuals as those who are “of mental defect” or who have been involuntarily committed due to mental illness.277 The inclusion of language specifying those who have been involuntarily committed was to provide an explicit expression that those who have been involuntarily committed are “of mental defect”.278 Classifying individuals who have ever been involuntarily committed as mentally defective not only illustrates the continued stigma but communicates that stigma to the entire nation.279 Eliminating the stigmatized language in the current code and encouraging the courts to eliminate similar stigmatized language in their opinions, would not eliminate the stigma of mentally ill individuals, but this would provide steps towards eliminating the clear examples of this stigma. 280

The stigma sets a dangerous precedent and enables the legislature, courts, and society as a whole to place the mental ill population as the scapegoat for gun violence in the United States.281 This stigma becomes increasingly dangerous as the congressional “stamp of approval” leads people to believe this stigma as fact.282 Accountability must at least partially be placed on those who have furthered this stigma and lead people to believe that individuals with mental illness are violent and overall a danger to society.283

The misconception and stigmatized view of the mentally ill, along with the political pressure to force these individuals to act as a scapegoat for gun violence leaves our country in a dangerous position.284 We as a nation have judicial and congressional approval

277. Id. 278. Id. 279. Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. &PUB. AFFS. 1 (2019). 280. Id. 281. Id. 282. Id. (This belief seeps into the minds of individuals throughout society, most devastatingly those who suffer with mental illness. Not only are these individuals living in a country with both major political parties acting prejudicial against them, but with the entire nation believing that these individuals are dangerous, many individuals with mental illness begin to consider and believe that these stigmatized beliefs are true.) 283. Id. 284. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, (2013); Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. & PUB. AFFS. 1 (2019); See Katie Rose Gues Pryal, Heller’s Scapegoats, 93 N.C. L. REV. 1439, (2015); Eric Silver, Understanding the Relationship Between Mental

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to deny these individuals a fundamental constitutional right without the opportunity to regain such right.285 We are allowing individuals to be declared “defective” sometimes based on a once in a lifetime emotional reaction.286 This rigid and stigmatized view has encouraged and led to the rigid and stigmatized code that has left these individuals fighting against an unconstitutional regulation.

Misconstrued “Historical Support” used to Prohibit Firearm Possession

District of Columbia v. Heller exists as a landmark case as it provided the right to exercise the Second Amendment for individuals for self-defense.287 However, this case eliminated this right for certain individuals including those who have been involuntarily committed.288 The drawback with Heller providing such a serious elimination for many individual’s to exercise their Second Amendment right, is that the way it has been applied does not pass the level of scrutiny required and is not grounded upon historical support.289

Heller has left a devastating gap in understanding and applying 18 U.S.C. § 922 (g)(4).290 The lifelong ban that Heller seems to approve of leaves lower courts interpreting the precedent with a serious constitutional dilemma.291 The Supreme

Court provided a broad rule regarding the Second Amendment, but the explanation regarding those who have been involuntarily committed is filled with logical fallacy.292

The broad consensus of Heller is that the Second Amendment applies for each individual except those which 18 U.S.C. §922 (g)(4) prohibits.293 An inconsistent logic seen in Heller is that fundamental constitutional rights— including the Second Amendment rights—are

Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685, (2006). 285. 18 U.S.C. § 922(g)(4) (2015); Susan McMahon, Gun Laws and Mental Illness: Ridding the Statutes of Stigma, 5 U. PA. J.L. &PUB. AFFS. 1 (2019). 286. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016). 287. See D.C. v. Heller, 554 U.S. 570, (2008). 288. See id. 289. See id.; Vars & Young, supra note 288, at 7. 290. See 554 U.S. 570; Vars & Young, supra note 288, at 7. 291. See D.C., 554 U.S. 570 (circuit court section in background). 292. See id.; Vars & Young, supra note 288, at 7. 293. See id.

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limited in the application but the Second Amendment is also limited based on what category a person fits under.294 The compelling state interest that the government has to protect the general public is not tied to the language in 18 U.S.C. § 922 (g)(4) as there is no historical support to deny these individuals a fundamental right and the accurate scientific studies illustrate the individuals who have been involuntarily committed are not in fact a danger to the general public.295

One of the stand out errors in Heller was dicta that stated, “nothing . . . cast doubt on longstanding prohibition on the possession of firearms of . . . the mentally ill.”296 This dicta has led to overwhelming and devastating consequences for those with mental illness.297 This statement claims that throughout history we have never doubted stripping an individual’s Second Amendment rights away because they have a mental illness.298 Such a statement is simply not supported.299

The best argument, to find historical support, is that the history is provided through the code, but even that is a stretch. The code indicated the need to prohibit the Second Amendment for those who are mentally defective, because they pose a danger to society.300 The dangerous slippery slope continued once a court added those who have been involuntarily committed to fall under this group.301 The same logic applies that they are a danger to society, however, unlike mental defectiveness, individuals who have been involuntarily committed are not necessarily (and often times not) in the same state as they were when they were involuntarily committed.302

The historical support for the dicta provided in Heller is minimal if in existence at all.303 The disagreement between circuit courts further exemplifies the logical fallacies with applying the dicta

294. See id. (If an individual fits under the mentally defective or involuntarily committed category they are thereinafter banned from possessing a firearm many times for their entire life without an option to appeal such decision.) 295. See id. 296. 554 U.S. at 626. 297. See supra Part I. 298. See D.C., 554 U.S. at 626. 299. See supra Part II(B)(1)(a). 300. See 18 U.S.C. § 922(g)(4). 301. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016). 302. See supra Part II(A)(2). 303. See Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 7 (2013).

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provided in Heller as support for a lifelong ban of gun possession for individuals who have been involuntarily committed.304 Although Heller stated that laws prohibiting guns to individuals who are mentally ill is “presumptively lawful,” the Court never intended to extend this to individuals who are no longer mentally ill.305 The rationale is that mentally defective individuals are a danger to society, thus they should not be prohibited to exercise their Second Amendment right.306 The logic follows then, that once the individual is no longer a danger to society they should be granted the opportunity to regain their Second Amendment right.307 However, the stigmatized view—pushed by the political parties and stamped with approval from congress—encourages a reading of Heller that extends far beyond the intent.308 The lack of historical support further strengthens the unconstitutionally of 18 U.S.C. §922 (g)(4) as the logistical fallacies are present throughout.309

The Appropriate Standard of Review

According to the dicta and expressed language in Heller, intermediate scrutiny is the appropriate level of scrutiny to analyze this constitutional issue.310 When looking at 18 U.S.C. § 922 under intermediate scrutiny the statute fails, as it does not provide the natural fit to the states proposed interest.311 The Sixth Circuit Court correctly applied and analyzed the intermediate scrutiny to Tyler’s situation.312 The Sixth Circuit Court also accurately illustrated how to engage in an analysis using intermediate scrutiny.313

304. See Tyler, 837 F.3d 678; See Mai v. United States, 2018 U.S. Dist. Lexis 21020. 305. See D.C. v. Heller, 554 U.S. 570, 627 (2008). 306. Id. 307. Id. at 626-27. 308. See supra Part II(A)(3). 309. See supra Part II(B)(1)(a). 310. See supra Part III(B). 311. See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 686-87 (2016). 312. See id. at 699. 313. See id. at 686-87.

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Heller’s Intermediate Scrutiny Application

Heller left courts today questioning what level of scrutiny is best for situations like the one at hand.314 Heller explicitly rejected the rational basis review therefore, requiring a higher level of scrutiny.315 The other insightful information that Heller provides regarding the scrutiny is that these types of laws—those which restrict the Second Amendment from the mentally ill population—are considered to be presumptively lawful.316 Therefore, applying strict scrutiny or rational basis would almost certainly offend the precedent set by Heller.

317

Intermediate scrutiny is best applied when considering the language and the intent behind Heller. 318 “[I]ntermediate scrutiny would require that restriction[s] upon the gun rights for the mentally ill would have to be substantially related to an important government objective.”319 The use of intermediate scrutiny is further supported by a similarity between the present issue and others which have been scrutinized under intermediate scrutiny.320 For example, a ban on gun possession for individuals who have abused substances in the past is scrutinized under intermediate scrutiny.321 Finally, this constitutional issue differs significantly from others which are looked at under strict scrutiny due to the dangerous nature of firearms and the overwhelming concern for public health and safety.322

Intermediate scrutiny requires that a government’s objective be significant and a reasonable fit between the challenged regulation and the asserted objective.323 The government’s interest in protecting the

314. See id.; Mai v. United States, 2018 U.S. Dist. Lexis 21020; Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1065 (2020). 315. D.C. v. Heller, 554 U.S. 570, 628-29 (2008). 316. Id. 317. See id. (Strict scrutiny requires a lens that looks upon laws with a presumption that they are unlawful. This presumption will continue to exist as fact unless the government can prove there is a compelling state interest and the regulation is narrowly tailored to such interest.) 318. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 692 (2016). 319. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 9 (2013). 320. Tyler, 837 F.3d at 692. 321. Id. 322. Id. 323. Id. at 693 (citing U.S. v. Chovan, 735 F.3d 1127 (2013). (It is important to note that reasonable fit and substantially related are synonymous and

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general health and safety of the public is unquestionably significant and “has always been a critical component of a society’s survival.”324 Even though this interest satisfies the first prong of the intermediate scrutiny test, 18 U.S.C. § 922 (g)(4) fails the second prong; requiring a reasonable fit between the objective and the means for achieving the objective.325 The best argument that a reasonable fit exists is founded upon the skewed statistics and widely endorsed stigma against the mentally ill population.326 However, as previously discussed such an argument is not grounded in fact.327

Even though the concern for the public is a significant interest, it alone is not enough; it is a mere factor that needs to be considered in the eyes of the law, but is not the sole determinant when discussing constitutional violations.328 The fact that someone has been involuntarily committed does not necessarily make them a continued risk to society.329 At one point, individuals who were involuntarily committed were in fact deemed to be a danger to themselves or others, but there is significant evidence illustrating that many people —including Tyler and Mai — do not return to this dangerous state ever again in their life.330 The compelling reason and evidence for the need to regulate gun safety “does not, however, answer why Congress is justified in barring anyone who has been previously committed.” 331 18 U.S.C. § 922 (g)(4) is overinclusive as it includes individuals who are not a danger to society and prohibits their Second Amendment right for the entirety of their life. However, “[t]here is no clear answer as to the degree of over-inclusiveness that will be

interchangeably used as the second prong of intermediate scrutiny and have the same meaning. Although the meaning is the same, arguments have been made that reasonable fit is slightly lower of a requirement than substantially related. In 324. Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 HASTINGS L.J. 1053, 1072 (2020). 325. Id. 326. See supra Part III(A) 327. See id. 328. Ulrich, supra note 328 at 1075 (The governments compelling interest to prevent firearm deaths is overwhelming as the number of deaths and serious injuries related to firearms continues to rise.) 329. See supra Part II(A). 330. Id.; See Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, (2016); See Mai v. United States, 2018 U.S. Dist. Lexis 21020. 331. Tyler, 837 F.3d at 695.

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tolerated under intermediate scrutiny.” 332 The over inclusive nature of this statute provides support that this statute is unconstitutional as applied due to the unproportionally and the lack of tie from the law to the government interest. 333 “Even if known low risk groups were excluded from the ban there would still be massive overbreadth.”334 The government must “prove that §922 (g)(4)’s scope is proportional to the interest served.”335 Despite the seriousness of the government’s interest to protect the general health and safety of the public, there is not enough evidence to justify such a severe restriction.336 A stigmatized belief that people with mental illness are forever a danger to society— coupled with the belief that firearms are inherently dangerous—does not justify such a severe restriction, like imposing “a lifetime ban on a fundamental constitutional right”. 337

Based on Heller, intermediate scrutiny is the most appropriate level of scrutiny to address the constitutional issue regarding a lifetime ban on gun possession for anyone who has ever been involuntarily committed. Under the intermediate scrutiny analysis 18 U.S.C. § 922 (g)(4) fails, as it is unproportionally overbroad and thus is not a rational fit to the state’s objective.

The Supreme Court Should Adopt the Sixth Circuit Analysis

Although the precedent provided in Heller left circuit courts with conflicting opinions, the Sixth Circuit Court appropriately applied the precedent to the issue at hand.338 Intermediate scrutiny was correctly determined to be the level of scrutiny necessary for this constitutional issue and was correctly applied to Tyler’s case.339 Even though Tyler was in a state that did not provide any alternative avenue to recover his Second Amendment right, the analysis and ultimately the holding that 18 U.S.C. §922 (g)(4) is unconstitutional should be followed nationwide.340 The federal government created the current

332. Fredrick E. Vars & Amanda Adcock Young, Do the Mentally Ill Have a Right to Bear Arms?, 48 WAKE FOREST L. REV. 1, 17-18 (2013). 333. See Tyler, 837 F.3d at 698. 334. Vars & Young, supra note 336, at 18. 335. Tyler, 837 F.3d at 698. 336. Id. at 699. 337. Id. 338. Id. at 678. 339. Id. 340. Id.

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constitutional infringement and should provide the avenue to reconcile such issue.341

The court concluded that calling for individuals like Tyler to be stripped of their fundamental right inherently violates the constitution and violates the precedent set in Heller. 342 The Second Amendment was created to protect individuals like Tyler and “forbids Congress from prohibiting firearm possession by currently healthy individuals who were long ago committed to a mental institution.” 343

The Sixth Circuit Court noted that the substantial government interest is the overall health and safety concern of the general public, however, the court decided the regulation set forth in 18 U.S.C. § 922 was not tied to the interest of protecting the public safety.344 The second requirement leads the government to prove a substantial relation to the act of which they are doing.345 Here, Tyler has no other means to regain his gun possession right.346 Therefore, in all effectiveness the code eliminates Tyler’s Second Amendment rights for his entire life without exception.347

The Sixth Circuit Court correctly recognized the substantial government’s interest in the overall health and safety of the general public.348 The Ninth Circuit Court also provides support that the government has a substantial interest.349 However, the Sixth Circuit Court notably provided a more grounded holding by finding the regulation set forth in 18 U.S.C. § 922 (g)(4) was not tied to the interest of protecting the public safety.350 The second prong of the intermediate scrutiny standard is that the regulation must be substantially related (or a reasonable fit) to the government’s interest.351 Based upon an accurate knowledge of mental illness and involuntary commitment the Sixth Circuit Court correctly concluded that prohibiting individuals who were once involuntary committed cannot logically be tied to protecting the general safety.352

341. Id. 342. Id. 343. Id. at 685. 344. See id. 345. Id. at 693. 346. Id. at 689. 347. Id. 348. Id. at 691. 349. Mai v. United States, 2018 U.S. Dist. Lexis 21020. 350. See Tyler, 837 F.3d at 678. 351. Id.. 352. Id.

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Unlike the Ninth Circuit Court, the Sixth Circuit Court looked upon Tyler’s situation with an empathetic view as one person should look upon another.353 Rather than using this individual who was involuntarily committed as a political pawn the sixth circuit looked at his constitutional rights.354 The analysis provided by the Sixth Circuit Court not only sets this nation on the road to end the stigma against the mentally ill population but is logically grounded in precedented law.355

PROVIDING A LEGISLATIVE

The 18 U.S.C. § 922 (g)(4) must provide a feasible exception to the current prohibition of firearms for those who have been involuntarily committed to all within constitutional limits. Congress illustrated their knowledge of the constitutional issue when they passed an administrative avenue for individuals to present their case before the Attorney General and potentially regain their Second Amendment rights once they are no longer a danger to society.356 They provided dicta expressing the likely constitutional violation with the code as it currently stands.357 However, today we have many individuals left without recourse as congress defunded the Attorney General avenue and allowed states to choose whether or not to provide an avenue for individuals who have ever been involuntarily committed to regain their gun possession rights.358

Based on the political push to strengthen the stigma against the mentally ill a government agency program (which requires congressional funding) would be insufficient.359 The agency would likely not receive the necessary funding and thus leave us where we are today, with too many individuals having their Second Amendment right unconstitutionally stripped from them.360 Providing standing to the federal district courts would enable them to hear and determine whether a person is a danger to society and thus whether

353. Id. 354. Id. 355. Id. 356. See supra Part II(A)(3). 357. See id. 358. See id. 359. See supra Part II(A)(3). 360. See id.

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the prohibition of the Second Amendment should continue to exist for them.361

Understanding that the judicial system has the most appropriate level of recourse for these individuals and their constitutional right, the courts need to know how to address these cases, as they will be of first impression for most if not all. The court would need to look at an individual’s case under an indeterminate multifactor analysis.362 This allows the court to include any and all information of an individual’s case that seems to be relevant to the overall question of if they are a danger to themselves or society. A crucial aspect of this analysis would include a broad risk factor analysis, investigating an individual’s risk in the past and their potential of being a risk to society again.

A similar logic would be used that is currently used in the criminal justice system. The factor of looking at repeat offenders and the repeat of violence is more crucial and accurate to determine potential violent acts in the future rather than one characteristic, whether that be their crime or their diagnosis.363 Rather than only looking at whether a person was involuntarily committed we need to take a deeper look.364 Understanding what an individual was involuntarily committed for and their subsequent diagnosis is crucial for understanding the reality of the threat they may or may not pose to society. These district courts will have the opportunity to enable an individual to rightfully regain their constitutional right. This would also provide a remedy to the justice system as a whole by eliminating these constitutional infringement claims based an unconstitutional provision in 18 U.S.C. § 922 (g)(4).

CONCLUSION

Many individuals like Tyler and Mai are being forced to live without a fundamental constitutional right for the entirety of their lives based on a singular moment of their past. As of right now 18 U.S.C. § 922 (g)(4) exists as an unconstitutional law prohibiting individuals who have been involuntarily committed from being in possession of a firearm for the entirety of their lives.

361. See supra Part II(C). 362. See id. 363. Eric Silver, Understanding the Relationship Between Mental Disorder and Violence: The Need for a Criminological Perspective, 30 LAW & HUMAN BEHAVIOR, No.6, 685 (2006). 364. Id.

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The reasoning behind this lifelong prohibition stems from the government’s concern for the public health and safety. The fallacy is that 18 U.S.C. § 922 (g)(4) frivolously concludes that individuals who have been involuntarily committed due to mental illness pose a risk or danger to the safety of the general public. This belief is founded upon a long held misconstrued stigma that the mentally ill population are—in the nature of their illness—dangerous. This has been negated with scientific studies illustrating that those who have been committed to a facility for mental illness are not any more violent than the general public itself.

The use of the mentally ill population has furthered the stigma and supported this unconstitutional law because placing blame on this specific group of individuals furthers the political objectives of both the democratic and republican parties. This population enables both parties to pressure society into agreeing with whatever their political agenda is. The democratic party being to strengthen gun control, while the republican party wishes to exercise the full amount possible of the Second Amendment for everyone outside of the mentally ill group.

The stigmatized language in 18 U.S.C. §922 (g)(4) creates a further problematic view of the mentally ill as congress is providing a stamp of approval that the mentally ill individuals are in fact dangerous to society. This congressional stamp of approval impacts our Nation and those with mental illness more negatively than almost all of the other aspects discussed in this article.365

The legal basis provided by Heller further strengthens that this law is unconstitutional. Applying intermediate scrutiny is the appropriate standard based on precedent set in Heller as well as consistency with other Second Amendment cases. Although the government’s interest is substantial, prohibiting individuals who have been involuntarily committed from ever possessing a firearm is not a reasonable fit. Individuals who have been involuntarily committed do not show to be the dangerous maniacs that leaders of this Nation have suggested. The evidence provided shows that prohibiting individuals who have previously been involuntarily committed from exercising their Second Amendment rights does not change any risk to the general public. Because this extreme prohibition cannot be tied to the

365. Excluding most significantly the application of the code itself as the application of such unconstitutional law illustrates a blatant disregard for these individuals constitutional rights.

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public safety (which is the government’s interest) 18 U.S.C. § 922 (g)(4) cannot be shown to be a reasonable fit.

The best way to protect the government’s interest and refrain from infringing upon individual’s constitutional rights includes a legislative and judicial solution. The code must provide an avenue for individuals to present their case to their federal district court.366 There, individuals who have been prohibited from possessing a firearm (due to involuntary commitment) can advocate that they are not a danger to the general public. After hearing from expert witnesses (along with others), if the court decides that an individual is not a danger to the public, they are entitled to exercise their Second Amendment right as they are no longer connected to the government’s interest.

Individuals like Tyler are left without any representation or opportunity to merely present his case. The Court is in a position to reconcile the disagreement between circuit courts and most importantly show individuals like Tyler that someone in power cares enough about him to at least provide an avenue to regain Second Amendment rights.

366. Without providing such explicit standing the courts do not currently have the power to hear these cases, as the Attorney General is (on paper) still must make a decision before the federal courts can hear the case.

YESENIA R. SORIA *

ABSTRACT..... .....................................................................................81 INTRODUCTION ...................................................................................82

A BRIEF HISTORY OF THE REMOVAL PROCESS AND NONCITIZENS’

INEFFECTIVE ASSISTANCE OF COUNSEL AND PROCEDURAL DUE

PROCESS CLAIMS.........................................................................86 Removal Proceeding and Federal Circuit Court Jurisdiction 86 The Development of Noncitizen Due Process Rights Under the Fifth Amendment ................................................................89 Ineffective Assistance of Counsel Claims and Their Roots in the Fifth Amendment...........................................................91 Discretionary Forms of Relief and Their Commonality..........93 The Current Federal Circuit Court Split.................................94 Circuit Courts that Exercise Jurisdiction Over Both Types of Claims ......................................................................94 Circuit Courts that Exercise Limited Jurisdiction.............96 Circuit Courts that Do Not Exercise Jurisdiction Over Either Type of Claim....................................................97

SUPREME COURT AND BOARD OF IMMIGRATION APPEALS PRECEDENT

ON FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS .................98 THE CIRCUIT COURTS SHOULD HOLD THAT THEY HAVE JURISDICTION

BECAUSE NONCITIZENS HAVE A PROTECTED INTEREST IN

FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS.....................101

* Yesenia R. Soria, Staff Editor, Texas Tech Law Review; J.D. Candidate, May 2022, Texas Tech School of Law; M.B.A. Candidate, May 2022, Texas Tech University; B.B.A., 2019, Abilene Christian University. The author wishes to thank Dean Jack Wade Nowlin, Professor Jamie Baker, Professor David Strange, Professor Janeen Williams, and Sara Baumgardner for their editorial contributions and guidance throughout the writing process of this Article. The author would also like to thank her family for their continual support.

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Noncitizens’ Entitlement to Fundamentally Fair Removal Proceedings Gives Rise to a Protected Interest that Supports Due Process Claims ..........................................101 Holding that This Protected Interest Supports a Due Process Claim Does Not Contradict Other Courts’ Reasonings...103

THIS APPROACH IS PREFERABLE BECAUSE IT AVOIDS INCONSISTENT

RESULTS AND POTENTIAL ISSUES..............................................106 Recognizing the Distinction Between the Right to Relief and a Fair Opportunity to Seek Relief........................................106 Removing the Artificial Distinction Between Stages in the Removal Proceeding.........................................................106 Supporting Congress’s Intent to Provide Avenues for Relief108 Remaining Focused on the Due Process Violation and Avoiding Dubious Results.................................................108 Countervailing Reasons for the Concern of Burdening Court Systems .............................................................................109

PUBLIC POLICY CONCERNS ALSO DEMONSTRATE THAT COURTS

SHOULD EXERCISE JURISDICTION..............................................110 Providing Noncitizens with the Minimal Protections Guaranteed by the Constitution........................................111 Upholding Underlying Immigration-Law Goals...................114 Aligning with the Country’s Core Values of Justice and Fairness ............................................................................116 CONCLUSION.. ..................................................................................117

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ABSTRACT

Over the last several years, orders of removal requiring a noncitizen to leave the country have drastically increased, resulting in the removal of hundreds of thousands of individuals from the United States per year. Nonetheless, Congress has provided flexibility in otherwise stringent immigration laws by implementing avenues that allow immigrants to apply for and receive relief from removal, including discretionary forms of relief. Further, in an effort to protect noncitizens’ due process rights as provided by the Fifth Amendment’s Due Process Clause, Congress has permitted federal circuit courts of appeals to hear noncitizens’ due process claims. These courts may hear claims such as ineffective assistance of counsel or procedural due process claims that arose during the noncitizen’s removal proceedings and remand for a new hearing if the claims are meritorious.

Nevertheless, federal circuit courts are currently split over whether they have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claims if the petitioner is seeking only discretionary relief—the most widely available form of relief. If the court does not exercise jurisdiction, noncitizens seeking discretionary relief are not able to bring their claims forth and receive redress in the form of a new hearing, which would allow them to fairly present their case and application for relief.

This Article—the first to focus specifically on this current rift between the federal circuit courts of appeals—asks circuit courts to hold that they do have jurisdiction to hear the claims of noncitizens seeking discretionary relief because all noncitizens have a protected interest in fundamentally fair removal hearings. This interest supports noncitizens’ due process claims and, consequently, permits the court to exercise jurisdiction. The court may then hear noncitizens’ claims and ensure that noncitizens have a fair opportunity to present their case before being removed from the country, regardless of the type of relief they are seeking.

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INTRODUCTION

Imagine that a man is facing removal proceedings. The possibility of deportation looms over his future. For twenty years, he has called the United States his home. He has built a family, a business, and relationships with neighbors, friends, and clients. Nevertheless, after discovering his lack of lawful immigration status, the Government initiates removal proceedings. Eager to remain in this country, obtain legal status, and maintain the life that he has built, the man hires an attorney to represent him. The man pays this attorney thousands of dollars to aid him in applying for cancellation of removal, a discretionary form of relief that Congress has made available to immigrants. This attorney, however, never goes to see the man while he is detained, never calls the man to explain the details of his case, never clarifies to the man what the requirements are for the discretionary relief he is seeking, and ultimately fails to obtain and submit the necessary evidence to support this man’s application for cancellation of removal. Predictably, the immigration judge denies relief and orders the man to be removed. Later, the attorney is disbarred due to a history of neglect in client matters, but this provides no relief for the man.1

Now imagine that a woman is facing removal proceedings. Fleeing her home nation—a nation that has become consumed by warfare and violence—and evading the political persecution that has led to the deaths of family members and friends, she crosses the border into the United States. She begins a new life free from this persecution. Nevertheless, she is later apprehended and detained. The government initiates removal proceedings. She obtains an effective attorney who aids her in applying for asylum, another form of discretionary relief that Congress has provided, which would allow her to safely remain in the country and continue her new life here. Nonetheless, during this proceeding, the immigration judge actively prevents her from making a case for asylum relief. Rather than remaining impartial, the immigration judge repeatedly interrupts her, belittles her, requires her to answer questions using only “yes” or “no,” and limits her ability to fully develop the facts of the claim and

1. See generally Calderon-Rosas v. Att’y Gen. U.S., 957 F.3d 378, 382 (3d Cir. 2020) (providing a basis for the hypothetical).

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present the evidence for her application for asylum. The woman consequently receives no relief and is ordered to be removed.2

Ordinarily, a noncitizen3 may bring constitutional claims such as ineffective assistance of counsel and procedural due process claims— both of which are grounded in the Fifth Amendment—that arose during removal proceedings to a federal circuit court of appeals.4 These courts are then able to remand for a new hearing if the claims are meritorious, allowing noncitizens to have a fair opportunity to present their case and application for relief before they are removed from the United States.5 Nevertheless, that may not be the case for the man and the woman in the hypotheticals above.

Currently, a circuit split exists on whether federal circuit courts have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claim that arose during their removal proceeding if the petitioner is seeking only discretionary relief.6 The crux of the issue lies in whether noncitizens seeking only discretionary relief have a protected interest at stake, giving rise to a constitutional due process claim that would allow the court to exercise jurisdiction.7 Some courts have held that they have jurisdiction to hear these claims, finding a protected interest, while others have held that they do not.8 As such, depending on the

2. See generally Serrano-Alberto v. Att’y Gen. U.S., 859 F.3d 208, 212 (3d Cir. 2017) (providing a basis for the hypothetical). 3. The terms “noncitizens” and “immigrants” are used interchangeably throughout this Article to refer to aliens presently in the United States in violation of the nation’s immigration laws. The term “alien” is defined as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). Not all noncitizens who are present in the country are here unlawfully. However, for purposes of this Article, these terms will be used to refer to both inadmissible aliens who are present in the United States and removable aliens. See id. §§ 1182, 1227. 4. See id. § 1252(a)(2)(D). 5. See Calderon-Rosas, 957 F.3d at 390. 6. Id. at 385. 7. Id. at 384. 8. See, e.g., Calderon-Rosas, 957 F.3d at 385; Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006); Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir. 2007) (concluding that noncitizens have a protected interest in a full and fair hearing). But see Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146–48 (11th Cir. 1999) (concluding that noncitizens seeking discretionary forms of relief do not have a protected interest at stake). See infra Part II.E (discussing the approaches that various federal circuit courts of appeals have taken regarding whether or not they have jurisdiction).

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jurisdiction where the immigration judge heard their cases,9 the man and the woman above may not be able to seek redress because the court may not exercise jurisdiction over their claims. Despite the fact that the man and woman were prevented from bringing forth their case and applications for discretionary relief by ineffective counsel or a biased immigration judge, if the court does not hear their claims, the man and woman will have no other option but to be removed. The man will be forced to leave behind his family and his business. The woman will walk back into a life of violence, danger, and potentially death.

Although federal circuit courts are currently split on the issue, the courts should hold that they do have jurisdiction to hear noncitizens’ ineffective assistance of counsel or procedural due process claims that arose from removal proceedings, even if they are seeking only discretionary relief, because noncitizens have a protected interest in fundamentally fair removal proceedings. This protected interest, thus, supports a due process claim, giving the court jurisdiction. As both the Supreme Court10 and the Board of Immigration Appeals11 recognize, a noncitizen is entitled to and may expect a fundamentally fair removal proceeding before they will be deported from the country giving rise to a protected interest. Additionally, the reasoning behind the holdings of the circuits that exercise jurisdiction does not actually contradict the reasoning behind holdings of the circuits who have held that they do not have jurisdiction. Moreover, by holding that they do have jurisdiction, the federal circuit courts will be able to support Congress’s intent to make these forms of relief available to noncitizens undergoing removal proceedings, prevent results that are

9. Daniel J. Esquivel, United States v. Estrada: The Sixth Circuit Misses the Mark in Finding No Due Process Violation in Immigration Judges’ Failure to Provide Notice of Eligibility for Discretionary Relief, 52 CREIGHTON L. REV. 353, 359 (2019) (explaining that “an alien may appeal a BIA decision to the United States Court of Appeals for the circuit where the IJ is located”); 8 U.S.C.A. § 1252(b)(2). 10. See Sung v. McGrath, 339 U.S. 33, 50 (1950); Low v. Backus, 225 U.S. 460, 468 (1912); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Landon v. Plasencia, 459 U.S. 21, 32–33, 36 (1982). 11. See Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980); Matter of RamirezSanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of Lam, 14 I&N Dec. 168, 170 (BIA 1972); In re Rodriguez-Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989).

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inconsistent with the requirements set forth by regulations, and take an approach that is more logically sound.12

Although other academic articles have addressed concerns about noncitizens’ due process claims or applications for discretionary relief, this article is the first to focus specifically on the current split in the circuit courts’ holdings regarding whether they have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claim if the petitioner is seeking only discretionary relief. Additionally, this Article assesses the current stances of the circuit courts regarding this issue and outlines the arguments that support a court’s holding that it has jurisdiction because noncitizens have a protected interest in fundamentally fair hearings. This Article includes Supreme Court precedent and authority from the Board of Immigration Appeals’ decisions as well as public policy considerations.

Part II of this Article provides background on this issue, discussing the process of removal proceedings and where federal circuit courts may have jurisdiction, how both procedural due process and ineffective assistance of counsel claims have their roots in the Fifth Amendment, the forms of discretionary relief that are available to immigrants, and the current federal circuit split.13 In Part III, this Article discusses Supreme Court and Board of Immigration Appeals precedent regarding noncitizens’ entitlement to fundamentally fair removal proceedings. 14 Part IV argues that noncitizens have a protected interest in fundamentally fair removal proceedings, which supports a due process claim, providing the court with jurisdiction.15 Additionally, Part IV addresses the reasoning of the circuit courts that do not exercise jurisdiction over these claims, ultimately demonstrating that the reasoning of the courts that exercise

12. See Calderon-Rosas v. Att’y Gen. U.S., 957 F.3d 378, 386 (3d Cir. 2020); Christen Chapman, Relief from Deportation: An Unnecessary Battle, 44 LOY. L.A. L. REV. 1529, 1559 (2011). 13. See infra Part II (explaining removal proceedings and federal circuit court jurisdiction, ineffective assistance of counsel and due process claims, the nature of discretionary relief, and the current federal circuit court split). 14. See infra Part III (discussing Supreme Court and Board of Immigration Appeals authority that addresses noncitizens’ entitlement to fundamentally fair removal hearings). 15. See infra Part IV (arguing that federal circuit courts should hold that they have jurisdiction because noncitizens have a protected interest in fundamentally fair removal hearings).

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jurisdiction is not actually contradictory.16 Part V considers additional reasons why holding that the court does have jurisdiction to hear these claims is more logical and avoids potential issues.17 Part VI analyzes this issue from a public policy perspective, evaluating the significance of the protections that the Constitution has guaranteed noncitizens in light of the many hardships that noncitizens face, the immigration objectives of the country, and the nation’s identity in core values of fairness and justice.18 Part VII concludes that the federal circuit courts should hold that they have jurisdiction.19

A BRIEF HISTORY OF THE REMOVAL PROCESS AND NONCITIZENS’ INEFFECTIVE ASSISTANCE OF COUNSEL AND PROCEDURAL DUE PROCESS CLAIMS

Removal Proceedings and Federal Circuit Court Jurisdiction

Exercising its plenary power in this area of the law, the Legislative Branch has complete authority in determining the laws governing immigration into the United States.20 As the Supreme Court of the United States has provided, “over no conceivable subject is the legislative power of Congress more complete.”21 Congress has delegated this authority to the Executive Branch, granting the branch the responsibility of administering immigration laws.22 Pursuant to this authority, the Executive Branch has established agencies to accomplish this task.23 These agencies “may create regulations which

16. See infra Part IV (comparing the reasoning of the courts that exercise jurisdiction to the reasoning of the courts that do not exercise jurisdiction, ultimately demonstrating that these reasonings do not contradict). 17. See infra Part V (explaining that if the circuit courts hold that they have jurisdiction, they will be able to take a more consistent, logical approach that avoids potential issues). 18. See infra Part VI (discussing the various public policy arguments for why this solution is preferable). 19. See infra Part VII (concluding that circuit courts should hold that they have jurisdiction to hear noncitizens’ due process claims even if they are seeking only discretionary relief). 20. Esquivel, supra note 9, at 358. 21. Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). 22. Esquivel, supra note 9, at 358. 23. Id.

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they deem necessary in the administration of immigration laws.”24 Through this delegation of power, these agencies have set forth the regulations and procedural requirements that guide removal proceedings.25

The two types of noncitizens who may be subject to removal proceedings are inadmissible aliens and deportable aliens.26 Inadmissible aliens, such as undocumented immigrants, include those who are present in the country without a lawful admission.27 Deportable aliens, on the other hand, are individuals who have violated their conditions of entry by committing various criminal offenses or failing to abide by the requirements of their status.28 As such, deportable aliens may include permanent residents and other legal immigrants who “failed to comply with the conditions of their admission.”29 Both inadmissible aliens and deportable aliens, then, must undergo removal proceedings before potentially being removed.30

These proceedings “involve a two-fold inquiry: (1) whether the noncitizen is removable; and, if so, (2) whether the noncitizen qualifies for any form of relief from removal.”31 These proceedings typically involve two hearings.32 The first hearing is a master calendar hearing where the court “informs the alien of the charges, takes any pleadings, and determines the destination country should the alien be ultimately removed.”33 The second hearing is a merits hearing where the Government and the noncitizen present evidence on the alleged immigration violations and the noncitizen’s

24. Id. 25. Id. 26. See 8 U.S.C. §1182, 1227. 27. Robert L. Koehl, Perpetual Finality: In Immigration Removal Proceedings, Motions to Reopen Create More Problems Than They Solve, 2 TEX. A&M L. REV. 107, 111 (2014) (citing 8 U.S.C. § 1182). 28. 8 U.S.C. § 1227. 29. Koehl, supra note 27, at 111. 30. Id. 31. Julia C. Lauritzen, Recognizing a Due Process Right to be Made Aware of Discretionary Relief from Removal for Lawful Permanent Residents, 81 OHIO ST. L.J. 111, 117 (2020). 32. Koehl, supra note 27, at 111. 33. Id. at 111–12 (citing Immigration Court Practice Manual, U.S. DEP’T OF JUST. at 64–66, https://www.justice.gov/sites/default/files/eoir/legacy/2012/11/08/Chap%204.pdf) (last revised Apr. 1, 2008).

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application for relief.34 The immigration judge determines whether the noncitizen is removable as well as whether the alien meets the requirements for that particular form of relief and merits a favorable decision.35

In most cases, “it is relatively easy for the Government to prove the alleged immigration violations.”36 Therefore, the outcome of most removal proceedings ultimately depends on the noncitizen’s application for relief.37 Congress has outlined various forms of relief for which a noncitizen may apply, including “relief that may delay or prevent removal.”38 The noncitizen may apply for any of these forms of relief that are available and appropriate, including discretionary forms of relief.39 During the merits hearing, both the noncitizen and the Department of Homeland Security, representing the Government, “present arguments and evidence related to the [non-citizens] application.”40 The immigration judge will then decide whether to grant the noncitizen’s application for relief from removal.41

Following the removal proceeding, a noncitizen “may appeal the [immigration judge’s] decision.”42 Typically, the noncitizen will appeal to the Board of Immigration Appeals, which is “the highest administrative body in immigration law” and “the primary authority in the interpretation and application of immigration law.”43 After the Board of Immigration Appeals renders a decision, the noncitizen may bring an appeal to the federal court of appeals in the circuit where the immigration judge conducted the proceeding.44 In addition, Congress has also permitted judicial review of “constitutional claims [and]

34. Id. at 112. 35. Id. (citing Immigration Court Practice Manual, U.S. DEP’T OF JUST. at 75, https://www.justice.gov/sites/default/files/eoir/legacy/2012/11/08/Chap%204.pdf) (last revised Apr. 1, 2008). 36. Chapman, supra note 12, at 1545. 37. Id. 38. Koehl, supra note 27, at 112–13. 39. EOIR Fact Sheet, U.S. DEP’T OF JUST. at 2 (Dec. 2017), https://www.justice.gov/eoir/page/file/eoir_an_agency_guide/download. 40. Id. 41. Id. at 6. 42. Esquivel, supra note 9, at 358. 43. Id. at 358–59 (citing Board of Immigration Appeals, U.S. DEP’T OF JUST., https://www.justice.gov/eoir/board-of-immigration-appeals (last visited Oct. 21, 2020)). 44. Id. at 359 (citing 8 U.S.C.A. § 1252(b)(2)).

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questions of law” arising out of immigration proceedings.45 However, this power is limited.46 Federal judges may not prevent removal47 nor “substitute [their] discretion for that of the agency,”48 including “any judgment regarding the granting of relief” or “any other decision or action of the Attorney General.”49 Nevertheless, by exercising federal-question jurisdiction, the appropriate federal circuit court of appeals may review constitutional claims and, if the claims are meritorious, provide redress by remanding for a new removal hearing.50

The Development of Noncitizen Due Process Rights Under the Fifth Amendment

The Supreme Court of the United States’s early jurisprudence determined that aliens were not entitled to due process protections while undergoing removal proceedings.51 The Court instead “treated exclusion proceedings and removal proceedings as conceptual equals”—despite the fact that individuals undergoing removal proceedings were already physically present on U.S. soil—and did not recognize additional protections for removal proceedings.52 As seen in several early cases regarding immigration regulation, the Supreme Court frequently acknowledged that the federal government had practically unlimited and unrestrained power “to regulate immigration through exclusion and expulsion, including retroactively and on the grounds of race.”53

45. 8 U.S.C. § 1252(a)(2)(D); Julie Menke, Abuse of Power: Immigration Courts and the Attorney General’s Referral Power, 51 CASE W. RES. J. INT’L L. 599, 605 (2020). 46. Juliet Stumpf, Fitting Punishment, 66 WASH. &LEE L. REV. 1683, 1727–28 (2009). 47. Id. 48. Omar v. Mukasey, 517 F.3d 647, 650 (2d. Cir. 2008). 49. 8 U.S.C. § 1252(a)(2)(B). 50. See 8 U.S.C. § 1252(a)(2)(D); Calderon-Rosas v. Att’y Gen. U.S., 957 F.3d 378, 390 (3d Cir. 2020). 51. Karen Nelson Moore, Aliens and the Constitution, 88 N.Y.U. L. REV. 801, 850 (2013). 52. Id. 53. Id. (citing Fong Yue Ting v. United States, 149 U.S. 698, 727–28 (1893), Ekiu v. United States, 142 U.S. 651, 662 (1892), Chae Chan Ping v. United States, 130 U.S. 581, 606–07 (1889), Lem Moon Sing v. United States, 158 U.S. 538, 549 (1895)).

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In United States v. Ju, the Court even held that individuals “claiming to be lawful citizens as a defense to removal or exclusion were not entitled to due process protections.”54 The plaintiff, a man of Chinese descent, sought permission to land back in the country following a temporary departure but was denied re-entry by immigration officers and was unable to seek judicial review of the Secretary of Commerce and Labor’s decision affirming the denial.55 The Court noted that Congress had the authority to exclude noncitizens from the country based on race,56 demonstrating that “in the absence of the territorial connection established by presence, even the right of a citizen to remain [in the United States] could at times be at risk.”57

Nevertheless, at the turn of the twentieth century, the Supreme Court recognized that the Due Process Clause of the Fifth Amendment applies to noncitizens undergoing removal proceedings and began enforcing these constitutional limits within the immigration sphere.58 The Court created “divergent constitutional regimes for removal and for exclusion, using physical presence [within the United States] as the key distinguishing factor.”59 The Court concluded that noncitizens who are present on United States soil “have a greater stake in their continued presence” in the country, thus providing them “the right to challenge the basis for their removal.”60 In 1903, after hearing Yamataya v. Fisher, the Supreme Court held that once a noncitizen “has entered the country,” even if he or she is unlawfully present, the noncitizen is entitled to receive “all opportunity to be heard upon the questions involving his right to be and remain in the United States” before he or she can be removed from the country.61 For the first time, the Court “acknowledged the potential validity of due process claims in the removal context.”62

In the decades that have followed, the Supreme Court has continued to recognize the due process rights of noncitizens

54. Id. (citing United States v. Ju, 198 U.S. 253, 262 (1905)). 55. United States v. Ju, 198 U.S. 253, 258–59, 262–63 (1905). 56. Id. at 261. 57. Earl M. Waltz, Citizenship and the Constitution: A History and Critique of the Supreme Court’s Alienage Jurisprudence, 28 ARIZ. ST. L.J. 1135, 1152 (1997) (citing Ju, 198 U.S. 253). 58. Moore, supra note 52, at 851. 59. Id. 60. Id. 61. Yamataya v. Fisher, 189 U.S. 86, 101 (1903). 62. Moore, supra note 52, at 851.

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undergoing removal proceedings.63 Relying on the terminology that the Founding Fathers used in the Constitution, the Court has noted that the Due Process Clause applies to all “person[s]” who are present in the United States, including noncitizens who are here without lawful status.64 As the remedy of removal has become a frequently used tool to regulate immigration into the country,65 the Supreme Court has also stressed the serious consequences of removal proceedings and the high stakes involved, which place “a great hardship on the individual.”66 Therefore, as the Court has provided, “[m]eticulous care must be exercised to ensure fairness” in these proceedings, as an individual being removed is a serious consequence.67

Today, the federal government still has plenary power in determining immigration law.68 “Because the government’s power is at its zenith” in this area of the law, its “power to exclude and deport aliens remain[s] largely unlimited.”69 Nevertheless, noncitizens’ constitutional rights—such as those arising from the Due Process Clause of the Fifth Amendment—impose restrictions on this power.70 These rights create limits on the acceptable nature of deportation proceedings and open the door for noncitizens to bring forth due process claims to a federal circuit court of appeals after their removal hearings.71

Ineffective Assistance of Counsel Claims and Their Roots in the Fifth Amendment

Along with procedural due process claims, a petitioner may also bring forth an ineffective assistance of counsel claim based on an attorney’s work during the petitioner’s removal proceeding because these claims are rooted in the Fifth Amendment.72 Congress has provided noncitizens with a statutory right to retain counsel.73 As

63. Id. 64. U.S. CONST. amend. V; Reno v. Flores, 507 U.S. 292, 306 (1993). 65. Moore, supra note 52, at 851. 66. Bridges v. Wixon, 326 U.S. 135, 154 (1945). 67. Id. 68. Moore, supra note 52, at 848–49. 69. Id. at 849. 70. Id. 71. See id. 72. Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988). 73. 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 1240.3.

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such, a noncitizen may be “represented, at no expense to the government, by counsel of the alien’s choosing who is authorized to practice in such proceedings.”74

Matter of Lozada provides that “[a]ny right a respondent in deportation proceedings may have to counsel is grounded in the [F]ifth [A]mendment guarantee of due process.”75 “Ineffective assistance of counsel in a [removal] proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”76 Thus, in order to bring forth an ineffective assistance of counsel claim, the alien must show: (1) the counsel’s assistance was so ineffective that it “impinged upon the fundamental fairness of the hearing in violation of the [F]ifth [A]mendment [D]ue [P]rocess [C]lause” and (2) that the noncitizen was prejudiced by the performance of his or her counsel.77

Although Matter of Lozada was overruled by Matter of Compean in 2009, Matter of Compean was later vacated by Attorney General Holder in the same year.78 In so doing, Attorney General Holder instructed “the Board of Immigrations Appeals and the [immigration judges] to continue [applying] the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.”79 He emphasized the importance of a framework for analyzing claims of ineffective assistance of counsel, which arise from noncitizens’ Fifth Amendment Due Process rights and their right to be represented by counsel, and reinstated the preCompean standards.80 Therefore, Matter of Lozada remains the current guiding framework for claims of ineffective assistance of counsel.81

74. 8 U.S.C. § 1229a(b)(4)(A). 75. Matter of Lozada, 19 I&N Dec. at 638. 76. Id. 77. Id. (citing Magallanes-Damian v. I.N.S., 794 F.2d 491 (9th Cir. 1986); Mohsseni Behhahani v. I.N.S., 796 F.2d 249 (9th Cir. 1986)). 78. Jean Pierre Espinoza, Ineffective Assistance of Counsel in Removal Proceedings Matter of Compean and the Fundamental Fairness Doctrine, 22 FLA. J. INT’L L. 91 (2010). 79. Id. at 91-92. 80. Id. at 91. 81. Id. at 109.

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Discretionary Forms of Relief and Their Commonality

For many noncitizens, their application for relief is vital to their ability to avoid removal and remain in the country. As discussed earlier, although the proceeding requires a two-part inquiry, the government is typically able to demonstrate that the noncitizen has violated immigration laws.82 Therefore, for most noncitizens, the outcome of their removal proceeding will ultimately “turn on [their] application for relief.”83

While Congress has made various forms of relief available to noncitizens undergoing removal proceedings, most of these forms for which noncitizens may apply are discretionary in nature.84 Asylum and cancellation of removal—two well-known, frequently requested forms of relief—fall under this discretionary category. Other forms of discretionary relief that a noncitizen may apply for “include restriction on removal, a waiver of a removal ground, adjustment of status, deferred enforced departure, temporary protected status, voluntary departure, stay of removal, and private bills.”85

In line with their discretionary nature, these forms of relief involve two components.86 First, the noncitizen must meet the statutory eligibility criteria that Congress has outlined for the specific type of relief that they are applying for.87 Once the immigration judge has determined that the noncitizen meets the threshold criteria, the immigration judge must decide whether the noncitizen merits “a favorable exercise of discretion” and will either grant or deny the noncitizen’s application for relief.88 This second component distinguishes discretionary forms of relief from mandatory forms of relief.89 However, mandatory forms of relief have a much higher standard of proof, making these forms of relief difficult for noncitizens to apply for or to receive. Consequently, the outcome of a noncitizen’s removal proceeding will oftentimes depend on their

82. Lauritzen, supra note 32, at 117; Chapman, supra note 13, at 1544-45. 83. Chapman, supra note 13, at 1545. 84. Lauritzen, supra note 32, at 117; Won Kidane, Revisiting the Rules of Procedure and Evidence Applicable in Adversarial Administrative Deportation Proceedings: Lessons from the Department of Labor Rules of Evidence, 57 CATH. U. L. REV. 93, 133 n.216 (2007). 85. Chapman, supra note 13, at 1545 n.71. 86. Lauritzen, supra note 32, at 113 n.13. 87. Id. 88. Id. 89. See Kidane, supra note 85, at 133 n.216.

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application for discretionary relief, including the noncitizen’s ability to demonstrate that they are statutorily eligible and merits “a favorable exercise of discretion.”90

The Current Federal Circuit Court Split

Today, a circuit split exists on whether federal circuit courts have jurisdiction to hear a noncitizen’s ineffective assistance of counsel or procedural due process claims that arose during their removal proceeding, even if the petitioner is seeking only discretionary relief.91 As discussed earlier, federal circuit courts have jurisdiction over constitutional claims and questions of law, including ineffective assistance of counsel and procedural due process claims involving a noncitizen’s removal proceeding—both of which are rooted in the Fifth Amendment’s Due Process Clause.92 Nevertheless, a “claim of deprivation of due process requires that a cognizable liberty or property interest be at stake” in order for the court to have jurisdiction.93

The crux of the issue here, then, is whether a petitioner who is seeking only discretionary relief has a protected interest at stake.94 If the petitioner has a protected interest, then the court is able to hear the petitioner’s ineffective assistance of counsel or procedural due process claims, decide on the merits of the claims, and ultimately provide redress by remanding for a new hearing before the petitioner can be removed.95 If, however, the petitioner does not have a protected interest at stake, the court will be unable to hear the petitioner’s claims or provide redress, even if the petitioner’s hearing was truly impacted by ineffective assistance of counsel or another procedural due process issue.96

Circuit Courts that Exercise Jurisdiction Over Both Types of Claims

Several circuits have held that they have jurisdiction to hear both ineffective assistance of counsel and procedural due process claims

90. Id. at 133. 91. See Calderon-Rosas v. Att’y Gen. U.S., 957 F.3d 378, 385 (3d Cir. 2020). 92. Due Process in Immigration Proceedings, Feb. 2021, at E-29-E30, https://cdn.ca9.uscourts.gov/datastore/uploads/immigration/immig_west/E.pdf. 93. Calderon-Rosas, 957 F.3d 378 at 386 (quoting Rivera v. Session, 903 F.3d 147, 150 (1st Cir. 2018)). 94. See id. at 383–84. 95. See id. at 390. 96. See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).

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made by petitioners seeking only discretionary relief. In Fernandez v. Gonzales, the Ninth Circuit noted that discretionary forms of relief are a privilege that Congress has made available and thus do not support an entitlement that can give rise to a protected interest.97 Nevertheless, as the court clarified, “procedural due process and ineffective assistance of counsel claims . . . are predicated on the right to a full and fair hearing”—a right that serves as a protected interest for due process claims.98 Relying on this analysis, the Ninth Circuit has continued to exercise jurisdiction over both types of claims.99

The Third Circuit has also held that it has jurisdiction to hear both types of claims.100 In Calderon-Rosas v. Attorney General, the court concluded that procedural due process and ineffective assistance of counsel claims “are no less cognizable by petitioners seeking discretionary relief.”101 These petitioners are entitled to “a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.”102 This entitlement to “fundamentally fair removal proceedings . . . constitutes a protected interest, supporting a due process claim.”103

Lastly, the Seventh Circuit also exercises jurisdiction over both procedural due process claims and ineffective assistance of counsel claims. The court has found that, although noncitizens do not have a property or liberty interest in discretionary relief, the court does have jurisdiction to hear claims concerning “the procedural sufficiency of an immigration hearing.”104 A noncitizen’s hearing must be “a fair one” with “a full and fair opportunity to be heard.”105 As such, the court may hear both types of claims.106

97. Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006). 98. Id. 99. See Gonzales, 439 F.3d at 602 n.8; Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir. 2007). 100. Calderon-Rosas, 957 F.3d at 386. 101. Id. 102. Id. (quoting Serrano-Alberto v. Att’y Gen. U.S., 859 F.3d 208 (3d Cir. 2017). 103. Id. 104. Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012). 105. Id. (citing Apouviepseakoda v. Gonzales, 475 F.3d 881, 886 (7th Cir. 2007)). 106. Id. at 759; Zambrano-Reyes v. Holder, 725 F.3d 744 (7th Cir. 2013).

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Circuit Courts that Exercise Limited Jurisdiction

Other circuit courts exercise limited jurisdiction over these types of claims. Some of these courts have held that they have jurisdiction over only ineffective assistance of counsel claims but not procedural due process claims. The Fifth Circuit has held that it does not have jurisdiction over procedural due process claims because “the failure to receive relief that is purely discretionary in nature does not amount to the deprivation of a liberty interest.”107 As such, the petitioner cannot allege that his due process rights have been violated.108 Nevertheless, the Fifth Circuit exercises jurisdiction over ineffective assistance of counsel claims.109 The court has stated that it “must have jurisdiction over . . . petition[s] to the extent [they] [raise] a claim of [ineffective assistance of counsel]—which is a constitutional claim presenting questions of law.”110

The First Circuit has likewise held that it does not have jurisdiction over procedural due process claims because “a claim of deprivation requires that a cognizable liberty or property interest be at stake” and discretionary relief does not “rise to the level of such a protected interest.”111 As such, the court will not exercise jurisdiction over these claims if the petitioner is seeking only discretionary relief.112 Nonetheless, the First Circuit has held that it has jurisdiction over ineffective assistance of counsel claims, recognizing that “where counsel does appear for the respondent, incompetence in some situations may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due process objection.”113 Noncitizens undergoing removal proceedings must be able to present their cases and receive a fundamentally fair process.114

Additionally, some of the circuit courts exercise jurisdiction over one type of claim but have not addressed the other type of claim. The Second Circuit, for instance, has held that it may exercise jurisdiction

107. Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (quoting Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999)). 108. Id. at 475–76. 109. Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018). 110. Id. at 227. 111. Rivera v. Sessions, 903 F.3d 147, 150–51 (1st Cir. 2018) (quoting Kandamar v. Gonzales, 464 F.3d 65, 69 (1st Cir. 2006)). 112. Id. 113. Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001). 114. Id.

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over ineffective assistance of counsel claims.115 In Omar v. Mukasey, the court recognized that “ruling on an ineffective assistance of counsel claim does not require [the court] to substitute [its] discretion for that of the agency.”116 Instead, “it is simply a determination that the alien was not given a fair hearing because of counsel’s errors.”117 Because such a claim is a constitutional claim, the court has “jurisdiction to consider the issue of ineffective assistance of counsel.”118 Nevertheless, the Second Circuit has yet to address procedural due process claims.119

The Tenth Circuit, on the other hand, has held that it has jurisdiction to review procedural due process claims.120 Recognizing that a noncitizen “has no liberty or property interest in obtaining purely discretionary relief” and that they “do not have a constitutional right to enter or remain in the United States,” the court nevertheless held that it had jurisdiction to hear these claims because noncitizens have procedural due process rights, including “an opportunity to be heard at a meaningful time and in a meaningful matter.”121 The Tenth Circuit, however, has not addressed whether it has jurisdiction to hear petitioners’ ineffective assistance of counsel claims if they are seeking solely discretionary relief.122

Circuit Courts that Do Not Exercise Jurisdiction Over Either Type of Claim

Even still, some circuit courts do not exercise jurisdiction over either ineffective assistance of counsel or procedural due process claims. In Pinos-Gonzalez v. Mukasey, the Eighth Circuit concluded that because the petitioner did not have a protected interest in the discretionary relief that he had applied for, he could not assert a procedural due process claim that would provide the court with jurisdiction.123 Likewise, in Nativi-Gomez v. Ashcroft, the court concluded that even if the petitioner had satisfied the Lozada

115. Omar, 517 F.3d at 650. 116. Id. 117. Id. 118. Id. 119. Calderon-Rosas, 957 F.3d at 385 n.3. 120. Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013). 121. Id. (quoting de la Llana-Castellon v. I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994)). 122. Calderon-Rosas, 957 F.3d at 385 n.3. 123. Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 441 (8th Cir. 2008).

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requirements for an ineffective assistance of counsel claim, the court did not have jurisdiction to hear the claim or provide relief because “a discretionary privilege cannot create a constitutional entitlement.”124 Therefore, the petitioner was unable to establish that his due process rights had been violated.125

Analogous to the Eighth Circuit, the Eleventh Circuit does not exercise jurisdiction over either type of claim.126 In Scheerer v. United States Attorney General, the court provided that because the petitioner did not have a constitutionally protected interest in the discretionary relief for which he had applied, he could not demonstrate a due process violation.127 As such, the court concluded that it may not exercise jurisdiction.128 Similarly, the court determined in Mejia Rodriguez v. Reno that even though “aliens enjoy the right to the effective assistance of counsel in deportation proceedings,” the failure to receive discretionary relief was not a deprivation of a protected interest.129 Focusing on the discretionary nature of the relief and an alien’s inability to expect such relief, the court ultimately decided that it was unable to hear any claims of ineffective assistance of counsel from petitioners seeking only discretionary relief.130

SUPREME COURT AND BOARD OF IMMIGRATION APPEALS PRECEDENT ON FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS

From the first case in which the Supreme Court of the United States acknowledged that noncitizens are protected by the Due Process Clause of the Fifth Amendment, the Court has continuously expressed that noncitizens are entitled to fundamentally fair removal hearings.131 In Yamataya v. Fisher, the Court recognized for the first time that noncitizens had due process rights, even while undergoing removal proceedings.132 The Court went on to state that a noncitizen “who has entered the [United States],” even if they are illegally

124. Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807–08 (8th Cir. 2003). 125. Id. at 807–09. 126. Scheerer, 513 F.3d at1253 ; Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146–48 (11th Cir. 1999). 127. Scheerer, 513 F.3d at 1253. 128. Id. 129. Mejia Rodriguez, 178 F.3d at 1146–47. 130. Id. at 1148. 131. See Yamataya v. Fisher, 189 U.S. 86 (1903). 132. Id. at 101.

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present in the country, may not be removed without the fair opportunity “to be heard upon the questions involving his [or her] right to be and remain in the United States.”133

Shortly after Yamataya, in Low v. Backus, the Court provided that noncitizens can successfully attack the constitutionality of their removal hearings if the proceedings were “manifestly unfair,” the executive officers “prevent[ed] a fair investigation,” or there was a “manifest abuse of the discretion,” thereby preventing the noncitizen from receiving a full and fair hearing.134 As such, the decisions made by executive officers in removal proceedings may only stand when the hearings are “fairly conducted.”135

Over the decades that have followed, the Court has continued to assert that noncitizens are entitled to receive fundamentally fair removal proceedings. In Sung v. McGrath, the Court stated that “[w]hen the Constitution requires a hearing,” such as a removal hearing, it requires a “fair one.”136 Just three years later, in Shaughnessy v. United States ex. rel. Mezei, the Court recognized that once an immigrant has entered the country—whether they are present legally or illegally, temporarily or permanently—he or she “may be expelled only after a proceeding that conforms to traditional standards of fairness encompassed in due process of law.”137 This idea was later reiterated in Landon v. Plasencia, which provided that the Fifth Amendment guarantees noncitizens who are threatened with removal from the country the right to a hearing that “ensure[s] fairness.”138

Additionally, “[w]hen Congress directs an agency to establish a procedure” or delegates authority to another branch, such as the Executive Branch, “it can be assumed that Congress [still] intends that procedure to be a fair one.”139 As discussed in Califano v. Yamasaki, the Supreme Court has historically “been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary.”140 In fact, the Court has

133. Id. 134. Low v. Backus, 225 U.S. 460, 468 (1912). 135. Id. 136. Sung v. McGrath, 339 U.S. 33, 50–51 (1950). 137. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). 138. Landon v. Plasencia, 459 U.S. 21, 32–33, 36 (1982). 139. Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (citing Califano v. Yamasaki, 442 U.S. 682, 693 (1979)). 140. Yamasaki, 442 U.S. at 693.

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repeatedly demonstrated its “concern that traditional forms of fair procedure not be restricted . . . without the most explicit action by the nation’s lawmakers” and that those affected by administrative action receive “the traditional safeguards of due process.”141

The Board of Immigration Appeals has also continuously expressed that noncitizens undergoing removal proceedings are entitled to full and fair hearings on their claims. In Matter of Toro, in ruling over the use of certain evidence in a removal proceeding, the Board stated that noncitizens may not be deprived of the “[F]ifth [A]mendment’s due process requirement of fundamental fairness.”142 Likewise, in Matter of Ramirez-Sanchez, the Board provided that the evidence used to establish removability could not impede on the fundamental fairness of the proceeding owed to the noncitizen.143 Considering a different issue in Matter of Lam, the Board of Immigration Appeals provided that if an immigration judge does not serve “as an impartial trier of fact,” the hearing will be “lacking in the fundamental fairness required by due process.”144

Furthermore, the Board of Immigration Appeals has asserted that the regulations set forth for conducting removal hearings give rise to an expectation that a noncitizen will receive a full and fair hearing prior to being removed.145 In In re Rodriguez-Carrillo, the Board discussed several of these regulations, including those that require the immigration judge to provide a record of the hearing, guarantee that the noncitizen will have “an adequate opportunity to contest the [i]mmigration [j]udge’s determinations,” and assure the noncitizen that they will receive “notice of the factual and legal basis of the Immigration Judge’s decision.”146 The Board asserted that these regulations “serve to ensure that the hearing conducted by the [i]mmigration [j]udge is fundamentally fair.”147

141. Greene v. McElroy, 360 U.S. 474, 507–08 (1959). 142. Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980). 143. Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980). 144. Matter of Lam, 14 I&N Dec. 168, 170 (BIA 1972). 145. See In re Rodriguez-Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989). 146. Id. 147. Id.

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THE CIRCUIT COURTS SHOULD HOLD THAT THEY HAVE JURISDICTION BECAUSE NONCITIZENS HAVE A PROTECTED INTEREST IN FUNDAMENTALLY FAIR REMOVAL PROCEEDINGS

Although federal circuit courts are currently split on the issue, the courts should hold that they have jurisdiction to hear noncitizens’ ineffective assistance of counsel and procedural due process claims that arise from removal proceedings, even if the noncitizens are seeking only discretionary relief, because noncitizens have a protected interest in fundamentally fair removal proceedings. Furthermore, the reasonings of the circuit courts that have held that they may exercise jurisdiction does not actually contradict the reasonings of the circuit courts that have held that they may not exercise jurisdiction. As such, all circuit courts will be able to hold that they have jurisdiction using this approach without conflicting with prior reasonings.

Noncitizens’ Entitlement to Fundamentally Fair Removal

Proceedings Gives Rise to a Protected Interest that Supports Due Process Claims

For the federal circuit court of appeals to have jurisdiction to review final orders of removal, the petitioner must have a constitutional claim.148 Therefore, if a noncitizen wants to bring a claim under the Due Process Clause of the Fifth Amendment, the noncitizen must be able to demonstrate he or she has a protected property or liberty interest at stake.149 Without a protected interest, such as a liberty interest arising from an expectation or interest created by the Constitution or by statutes and regulations,150 the court will be unable to hear the noncitizen’s ineffective assistance of counsel or procedural due process claim.151 As the Supreme Court has held, a noncitizen undergoing removal proceedings does not have a vested right “to stay and live and work in this land.”152 Therefore, the noncitizen must have a protected interest elsewhere.

148. 8 U.S.C. § 1252(a)(2)(D). 149. Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1651–52 (1992). 150. Chapman, supra note 12, at 1556. 151. See Calderon-Rosas, 957 F.3d at 383–84. 152. Landon v. Plasencia, 459 U.S. 21, 34-35 (1982) (quoting Bridges v. Wixon, 326 U.S. 135, 154 (1945)).

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Here, however, because noncitizens are entitled to and may expect a full and fair proceeding before removal, they have a protected interest at stake. First, over the past several decades, the Supreme Court of the United States has reiterated that removal proceedings must be fair.153 The Court has demonstrated that noncitizens are entitled to receive “all opportunity to be heard upon the questions involving [their] right to be and remain in the United States” before being removed.154 Irrespective of whether the noncitizen is here lawfully or unlawfully, the noncitizen “may be expelled only after a proceeding that conforms to traditional standards of fairness.”155

The Board of Immigration Appeals’ decisions support this contention as well.156 As evidenced by the decisions noted above, the Board has indicated that noncitizens must receive a removal hearing that comports with due process requirements of fundamental fairness.157 Additionally, the Board of Immigration of Appeals has asserted that the regulations setting forth the guidelines for conducting removal hearings are meant to ensure that the proceedings are conducted fairly and that noncitizens have a fair opportunity to present their case.158

Furthermore, the Supreme Court “has been willing to assume a congressional solicitude for fair procedure.”159 As such, even “when Congress directs an agency to establish a procedure” or delegates authority to another branch, “it can be assumed that Congress intends that procedure to be a fair one.”160 Here, Congress has delegated authority “in the administration of immigration laws” to the Executive Branch, including the Attorney General.161 With this power, the executive’s agencies may develop regulations establishing

153. See supra Part III (discussing Supreme Court precedent on noncitizens’ right to a fundamentally fair removal proceeding). 154. Yamataya, 189 U.S. at 101. 155. Shaughnessy, 345 U.S. at 212. 156. See supra Part III (discussing decisions from the Board of Immigration Appeals stating that noncitizens are entitled to fundamentally fair removal hearings). 157. See id. 158. In re Rodriguez-Carrillo, 22 I&N Dec. 1031, 1033 (BIA 1989). 159. Califano v. Yamasaki, 442 U.S. 682, 693 (1979). 160. Marincas, 92 F.3d at 203 (citing Califano v. Yamasaki, 442 U.S. 682, 693 (1979)). 161. Esquivel, supra note 9, at 358.

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the procedural requirements and safeguards for removal hearings.162 Additionally, the Attorney General has been provided with the discretion to grant or deny discretionary relief, such as asylum or cancellation of removal.163 These immigration procedures, then, must demonstrate the same concern for fair procedure.164 Therefore, even if an applicant does not have a constitutional right to discretionary relief, there is still an expectation that a hearing on his or her application will be full and fair.

Because noncitizens possess an identifiable liberty interest that supports a due process claim, federal circuit courts have jurisdiction to hear both ineffective assistance of counsel and procedural due process claims brought forth by noncitizens. While federal circuit courts cannot “substitute [their] discretion for that of the agency,” they do have jurisdiction to hear constitutional claims or questions of law.165 As noted by the Ninth and Third Circuits, by recognizing that noncitizens have a protected interest in a full and fair removal hearing, the noncitizen’s claim will be a valid, constitutional claim.166 Consequently, the federal circuit court will have the ability to exercise jurisdiction to hear these claims, decide on the merits, and provide redress if necessary.167

Holding that This Protected Interest Supports a Due Process Claim Does Not Contradict Other Courts’ Reasonings

Although some circuit courts, such as the Eighth and Eleventh Circuits, have held that they do not have jurisdiction over one or both types of claims, the analysis of the courts that do exercise jurisdiction does not actually contradict the reasoning of the courts that do not. Consequently, this approach would provide all circuit courts— including those that have held that they do not have jurisdiction— with a clearly defined interest to support a due process claim that a noncitizen has raised in connection with his or her removal proceeding. Every circuit court would then be able to hold that they have jurisdiction to hear these procedural due process and ineffective

162. Id. 163. See 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. § 1229b(a)–(b). 164. See Califano, 442 U.S. at 693. 165. 8 U.S.C. § 1252(a)(2)(D); Calderon-Rosas, 957 F.3d at 385 (citing Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008)). 166. Fernandez v. Gonzales, 439 F.3d 592, 602 n.8 (9th Cir. 2006); CalderonRosas, 957 F.3d at 386. 167. See Calderon-Rosas, 957 F.3d at 386.