Issues to Watch

Again, Can’t We All Just Have a Process that’s Due? The Implications of Due Process on Non-Citizens


Yemisi R. Giwa-Otusajo*

I.  Background

The Fifth Amendment of the Constitution of the United States provides that no person shall “be deprived of life, liberty, or property, without due process of law[.]”  U.S. Const. amend. V.  The Sixth Amendment of the Constitution further provides that a criminal defendant must be afforded the right to a “speedy and public trial, by an impartial jury,” and that the trial must be conducted with the assistance of counsel for an individual’s defense.  U.S. Const. amend. VI.  The right to the assistance of counsel is considered so essential to due process that if a defendant cannot afford counsel, the law requires the government to appoint counsel for the defendant.  Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938).  The Sixth Amendment is premised on the assumption that an average criminal defendant lacks the necessary legal knowledge and skills to adequately defend themselves in court.  Id.  Therefore, the denial of a defendant’s right to counsel is a violation of their due process rights.  Powell v. Alabama, 287 U.S. 45, 71 (1932).  Although the Due Process Provisions of the Fifth and Sixth Amendments are limited to the federal government, the Fourteenth Amendment is interpreted to make these due process requirements applicable to the states.  See Argersinger v. Hamlin, 407 U.S. 25, 27 (1972).

There was never any doubt that the Due Process Provisions of the Fifth, Sixth, and Fourteenth Amendments applied to citizens; however, over the years, the Supreme Court has consistently struggled with the question of how the Due Process Provisions of the Constitution apply to non-citizens.  See Wong Wing v. United States, 163 U.S. 228, 233–34 (1896); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 591–92 (1953); see also Detroit Free Press v. Ashcroft, 303 F.3d 681, 682 (6th Cir. 2002).  In 1896, the Court concluded that non-citizens enjoy the due process protections of the Constitution that were previously interpreted to only be afforded to citizens.  Wong Wing, 163 U.S. at 238 (construing the language of the Fourteenth Amendment to include “all persons” within the U.S. territorial jurisdiction, albeit the person’s race, culture or nationality).  Thus, the Court’s decision in Wong Wing establishes that “all persons” within the territorial jurisdiction of the United States, legally or illegally, enjoy the due process protections afforded by the Constitution.  Id.

The fact that non-citizens enjoy due process rights within the U.S. establishes that a non-citizen may not be expelled from the U.S. without “a fair opportunity to be heard.”  Id.  Despite these rulings by the Court, the due process rights of non-citizens continue to be challenged.  See Tawadrus v. Ashcroft, 364 F.3d 1099, 1101 (9th Cir. 2004); see also Zuniga v. Barr, 934 F.3d 1083, 1089 (9th Cir. 2019).  The following cases highlight the constant challenges to the application of the Sixth Amendment’s due process right to non-citizens before the courts.  See infra Parts II–III.

II.  Tawadrus v. Ashcroft

In Tawadrus, the Petitioner was subjected to removal proceedings by the Immigration and Naturalization Service after he exceeded his approved six-month stay in the United States.  Tawadrus, 364 F.3d at 1101.  At his preliminary removal hearing before an immigration judge, Tawadrus conceded to his removability, but requested to be heard on the merits of an asylum relief claim.  Id.  Tawadrus based his asylum relief claim on the fact that while he was in Egypt “members of certain government-controlled agencies placed economic sanctions on him for failing to convert to Islam.”  Id.  Tawadrus further testified that “he was beaten by unknown groups of Islamic fundamentalists.”  Id.

The hearing on the merits of Tawadrus’s claim for asylum was to be scheduled for a later date.  Id. at 1101.  However, due to Tawadrus’s attorney’s indication of a religious conflict with the court’s suggested scheduling date, the hearing was scheduled for two hours after the preliminary hearing.  Id.  Tawadrus’s attorney again “indicated that he would be unavailable on such short notice to represent” Tawadrus and, thus, was permitted to withdraw from the hearing on the merits.  Id.  Tawadrus was left to represent himself, which resulted in the government objecting to the majority of the evidence in support of his claim for the failure to certify.  Id. at 1102.  Ultimately, a substantial portion of the evidence was not admitted, and Tawadrus’s claim for asylum was consequently denied.  Id.

Upon review, the United States Court of Appeals for the Ninth Circuit acknowledged that “there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings.”  Id. at 1103.  Further, the court recognized that the immigration judge must obtain a “knowing and voluntary waiver of the right to counsel” for a non-citizen to represent himself during a removal proceeding.  Id.  After acknowledging the guiding rules, the court found that the immigration judge failed to inform Tawadrus of his right to counsel and also failed to obtain a waiver of his right to counsel.  Id.  The court then concluded that the immigration judge violated Tawadrus’s due process rights, which in turn prejudiced his case.  Id. at 1107.

III.  Zuniga v. Barr

Fast-forward to 2019, we find ourselves asking the same question: “can’t we all just have a process that’s due?” as seen in the recent case of Zuniga v. Barr.  See Hannah Albarazi, Noncitizens Fearing Prosecution Have Right to Atty: 9th Circ., Law360 (Aug. 20, 2019, 8:00 PM), https://www.law360.com/appellate/articles/1190657/noncitizens-fearing-persecution-have-right-to-atty-9th-circ-.  In Zuniga, the United States Court of Appeals for the Ninth Circuit ruled that a non-citizen enjoys the due process right to be represented by an attorney in immigration proceedings, unless an immigration judge obtains an unequivocal waiver of the right to counsel.  Zuniga v. Barr, 934 F.3d 1083, 1089 (9th Cir. 2019) (citing Tawadrus, 364 F.3d at 1103).

In Zuniga, the non-citizen Petitioner, Zuniga, was convicted of “participating in a conspiracy to manufacture and distribute drugs and launder money.”  Id. at 1084.  Thereafter, he testified against “two of his co-conspirators, who were part of Mexico’s notorious Knights Templar Cartel.”  Id.  While incarcerated, Zuniga was served with Notice that he was to be placed in “expedited removal proceedings pursuant to 8 U.S.C. § 1228(b)” because he was convicted of drug trafficking, which is an aggravated felony.  Id.  During his interview with Immigration and Customs Enforcement (ICE), Zuniga expressed a fear of retaliation for testifying against his co-conspirations if he were deported back to Mexico.  Id.

After he expressed this fear, Zuniga was interviewed by an asylum officer to determine whether his fear was reasonable.  Id.  The officer “concluded that Zuniga had not established a reasonable fear of persecution or torture” in Mexico.  Id.  Consequently, “Zuniga requested a review of the asylum officer’s negative reasonable fear determination by an [i]mmigration [j]udge.”  Id.  Zuniga then appeared before an immigration judge to review the asylum officer’s judgment regarding his lack of reasonable fear.  Id. at 1085.  During the proceeding before the immigration judge, Zuniga was not represented by an attorney, and the judge did not obtain a waiver of his right to counsel.  Id.  The immigration judge confirmed the asylum officer’s determination that Zuniga lacked “a reasonable fear of persecution on account of a ground protected by the law[s] of the United States.”  Id.  Zuniga subsequently appealed to the United States Court of Appeals for the Ninth Circuit and argued “that his due process rights were violated . . . by the [immigration judge’s] failure to obtain a proper waiver of his right to an attorney in that proceeding.”  Id.  The court concluded that Zuniga’s due process rights were violated because the statute the government relied on did not give the immigration judge discretion in determining whether to allow Zuniga to be represented by counsel in his “reasonable fear” proceeding.  Id. at 1088–89.

IV.  Conclusion

Despite the Supreme Court’s ruling that non-citizens have the right to enjoy the due process rights that are enjoyed by citizens, these rights continue to be challenged.  See Zuniga, 934 F.3d at 1088–89; see also Tawadrus v. Ashcroft, 364 F.3d 1099, 1101 (9th Cir. 2004); see also Detroit Free Press v. Ashcroft, 303 F.3d 681, 682 (6th Cir. 2002).  Because there is a strong likelihood of continued challenges to the due process rights of non-citizens, lawyers will continue to be tasked with the responsibility to confront these due process challenges and ensure that the principles of the Constitution are upheld.

*Yemisi Giwa-Otusajo is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review. Yemisi is also a member of the Jessup International Law Moot Court Team, and the Royal Graham Shannonhouse III Honor Society. In summer 2019, Yemisi worked as a judicial intern for Hon. Sherrie Bailey of the Circuit Court for Baltimore County, and as a law clerk for Cohen & Dwin, P.A.

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