Model Law on the Right to Counsel for

Noncitizen Migrants in Deportation and

Removal Proceedings
 FLAME-PNW Model Law on the Right to Counsel for Noncitizen
Migrants in Civil Removal and Deportation Proceedings

Chapter I: General Provisions

Article 1: Statement of Purpose

1. The present Law gives effect to the United Nations International Convention on the Protection of
the Rights of All Migrant Workers and Members of their Families.

2. The purposes of this Law are:

(a) To ensure noncitizen migrants are granted equal protection of and access to the legal
system;

(b) to promote and facilitate national and international cooperation to meet these objectives;
and

(c) to protect the rights of noncitizen migrants.

Article 2: Interpretation

Overview
Noncitizen immigrants have certain inalienable rights arising from international law. These rights are defined in key
international treaties, including the International Covenant on Civil and Political Rights,1 the International Covenant
on Economic, Social and Cultural Rights,2 the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,3 the Convention on the Elimination of All Forms of Discrimination against Women,4 the
International Convention on the Elimination of All Forms of Racial Discrimination5 and customary international
law. More specific protections relating to the standards of treatment of individuals outside their countries of origin
are provided in the Convention relating to the Status of Refugees6 and the 1967 Protocol relating to the Status of
Refugees, the Convention on the Rights of the Child7 and the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families.8

Deportation is classified as a civil rather than a criminal sanction, so immigrants facing removal are not extended the
same constitutional protections under the sixth amendment that are provided to criminal defendants, despite the
similar potential loss of liberty immigrants confronted with deportation face. Although some states afford the right
to be represented by counsel in immigration proceedings, the expense of counsel is borne by the noncitizen

1General Assembly resolution 2200 A (XXI), annex.

2 Ibid.
3United Nations, Treaty Series, vol. 1465, No. 24841
4
Ibid., vol. 1249, No. 20378.
5
Ibid., vol. 660, No. 9464.
6
Ibid., vol. 606, No. 8791.
7 Ibid., vol. 1577, No. 27531.
8 Ibid., vol. 2220, No. 39481.
immigrant rather than the government.9 Yet, in deportation and removal proceedings, like in criminal prosecutions,
the government is represented by an attorney who will argue for deportation.

For an individual facing removal and deportation proceedings, the emotional and social costs alone create a barrier
to accessing representation. Moreover, the fiscal cost and language barrier create an insurmountable burden for most
individuals facing deportation and removal proceedings. As a result, in the United States, only 37% of immigrants
had counsel from 2007 to 2012.10 Even more concerning, only 14% of detained immigrants in the U.S. had counsel
during the same period. Immigrants with representation are up to 10 times more likely to be granted relief from
deportation than those without, and detained immigrants with representation are 3.5 times more likely to be granted
bond.

This Law shall be interpreted and applied in a way:

(a) That is not discriminatory on any ground, such as race, color, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status;

(b) That is consistent with other obligations under international law, especially human rights,
humanitarian, migrant, and refugee law [including but not limited to the International Covenant
on Civil and Political Rights, the International Covenant on Economic, Social and Cultural
Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All
Forms of Discrimination against Women, the Convention on the Elimination of All Forms of
Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, the Convention relating to the Status of
Refugees and the 1967 Protocol relating to the Status of Refugees and customary international
law]; and

(c) That considers the special needs of noncitizen migrants who are women and children or who
otherwise have special needs.

Article 3: Definitions
In this law:
(1) “Child” shall mean a person under the age of 18 years;

(2) “Civil deportation and removal proceeding” means a court proceeding during which an individual
who is not a Citizen of the [petitioning/receiving] State is removed from the state, often by
transporting them back to their country of origin. These proceedings include:

a. a court proceeding under [applicable law] before a federal immigration judge;

9 United States Immigration and Nationality Act § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A) (2012) [hereinafter I.N.A.] Orantes-Hernandez v.
Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (“[A]liens have a due process right to obtain counsel of their choice at their own expense.”
(citation omitted)).
10 Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review

164, no.1 (December 2015), 49-50, https://scholarship.law.upenn.edu/cgi/ viewcontent.cgi?article=9502&context=penn_law_review; Emily Ryo,

“Detained: A Study of Immigration Bond Hearings,” Law & Society Review (2016), USC Law Legal Studies Paper No. 15-31, USC CLASS
Research Paper No. CLASS15-29, Criminal Justice, Borders and Citizenship Research Paper No. 2628962, 1, https://ssrn.com/abstract=2628962.
 b. an individual who is arrested by [authorized arresting or detaining agency] and placed in
expedited removal proceedings pursuant to [applicable law of the jurisdiction];

c. an individual who is paroled into the State at or near a port of entry for purposes of
removal proceedings; or

d. an individual who is a party to an appeal made to the [Board of Immigration Appeals or a

federal] Court of Appeals arising from any of those proceedings.

(3) “Illegal entry” shall mean crossing borders without complying with the necessary requirements
for legal entry into the receiving State;

(4) A “noncitizen migrant” is an individual without Citizenship status, including undocumented

immigrants and individuals without full legal status, who has left their country of origin to move
to another, receiving, country. Although the definition of migrant traditionally connotes
impermanency, for the purposes of this Law, a “noncitizen migrant” includes:

a. immigrants;

b. migrants, including but not limited to migrant workers;

c. refugees;

d. smuggled migrants; and

e. asylum seekers.

(5) “Representation” includes counsel, interpretation, and translation services, as well as any other
services necessary for effective representation.

(6) “State” includes member and non-member states to the Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families and includes territories and
territorial sea.

Article 4: Jurisdiction
Commentary
To effectively ensure legal access to noncitizen migrants in deportation and removal proceedings, and in the light of
its transnational nature, it is vital that States establish jurisdiction over conduct that may have taken place beyond
their national borders. The issue of jurisdiction may already be addressed in existing national laws. However, if this
is not the case, subparagraphs (a) and (b) should be incorporated into national law, at least in so far as they extend to
the representation of counsel to noncitizen migrants.

(1) This Law shall apply to any civil deportation or removal proceeding initiated when:
a. The deportation or removal proceeding is initiated [wholly or partly] within the territory
of [name of State].
 Chapter II: Protection and Assistance Measures

Article 5: Relationship and applicability

(1) This Law applies to a civil or administrative deportation or removal proceeding pending or
commenced on or after [the effective date of this act].

(2) The noncitizen migrant in these proceedings is a party.

Article 6: Appointment of counsel in deportation and removal proceedings

(1) The court of the receiving state shall appoint a lawyer at the government’s expense for each
individual noncitizen migrant who is the subject of a petition in a deportation and removal
proceeding and who is financially unable to obtain representation. The appointment of a lawyer
must be made as soon as practicable to ensure effective representation of the individual migrant
and, in any event, before the first court hearing.

a. For migrants who are or have been detained by the receiving State, the right to appointed
counsel starts when the individual is placed in custody, regardless of whether they have
been formally placed in proceedings that may result in removal; or when a Notice to
Appear or other document initiating proceedings is issued, whichever occurs first.

(2) The court shall appoint a lawyer to represent a detained individual in a bond hearing, petition for
writ of habeas corpus [or jurisdictional equivalent], [arresting or detaining authority rescission
request], parole request, or in any other forum to challenge continued detention or conditions of
detention.

(3) The court shall appoint a lawyer to represent an individual subject to removal in limited scope
asylum-only proceedings or withholding-only proceedings before a federal immigration judge,
and/or in any appeal made to the [Board of Immigration] Appeals or a [federal] Court of Appeals
arising from those proceedings.

(4) The court shall appoint a lawyer to represent an individual seeking relief from an Immigration
Judge’s final administrative order in prior removal proceedings directly with the Immigration
Court, including via motions to reopen or reconsider.

(5) The court shall appoint a lawyer to represent an individual in state court proceedings related to
removal defense, such as proceedings regarding Post-Conviction Relief.

(6) The court shall appoint a lawyer to represent derivative family members in related immigration
petitions or applications.

(7) In addition to the appointment of a lawyer, the court may appoint a translator in the individual’s
native or preferred language to assist the court and the individual throughout the duration of the
proceedings.
 (8) The applicable rules of professional conduct and any law governing the obligations of lawyers to
their clients shall apply to such appointed lawyers for migrants.

(9) The appointed lawyer shall represent the individual at all stages of the proceedings, unless
otherwise discharged by order of court.

(10) As an autonomous individual, the individual migrant may waive the right to counsel at
any time during court proceeding they choose.

Commentary:
By providing a customary international right to counsel in deportation and removal proceedings, non-government
organizations that currently provide removal defense services to noncitizen migrants will be able to pivot to focusing
on affirmative applications, thereby filling the service gap and ensuring quality representation to all noncitizen
migrant clients.

Article 7: Qualifications of the noncitizen migrant’s lawyer

(1) The court shall appoint as the individual migrant’s lawyer an individual who is qualified through
training and experience, according to standards established by the [bar of the respective
jurisdiction].

(2) Lawyers for noncitizen migrants shall receive initial training and annual continuing legal
education that is specific to immigration law. Lawyers for migrants shall be familiar with all
relevant international, federal, state, and local applicable laws.

(3) Lawyers shall be capable of communicating with the client in the client’s preferred language or in
a language they can reasonably understand and communicate. If this is not possible, a translator
shall be appointed pursuant to Article 6 (7) of this Law.

(4) Lawyers shall not be appointed to new cases when their present caseload exceeds more than a
reasonable number given the jurisdiction, the percentage of the lawyer’s practice spent on
immigration cases, the complexity of the case, and other relevant factors.

Commentary:
States should establish minimum training requirements for lawyers who represent noncitizen migrants. Such training
should focus on applicable law, skills needed to develop a meaningful lawyer-client relationship with immigrant-
clients, and the many interdisciplinary issues that arise in immigration and deportation cases. The lawyer needs to
spend enough time on each deportation and removal case to establish a lawyer-client relationship and zealously
advocate for the client. A lawyer’s caseload must allow realistic performance of functions assigned to the lawyer
under this Law. The amount of time and the number of clients a lawyer can represent effectively will differ based on
several factors, including type of case, the demands of the jurisdiction, whether the lawyer is affiliated with an
immigration law office, whether the lawyer is assisted by investigators or other immigration professionals, and the
percentage of the lawyer’s practice spent on deportation and removal cases. States are encouraged to conduct
caseload analyses to determine guidelines for lawyers representing immigrants in deportation and removal cases.
 Article 8: Order of Appointment
(1) Subject to subsection (2), an order of appointment of a migrant’s lawyer shall be in writing and
on the record, identify the lawyer who will act in that capacity, and clearly set forth the terms of
the appointment, including the reasons for the appointment, rights of access as provided under
Article 11, and applicable terms of compensation as provided under Article 14.

(2) In an order of appointment issued under subsection (1), the court may identify a private
organization, law school clinical program, or governmental program through which a noncitizen
migrant’s lawyer will be provided. The organization or program shall designate the lawyer who
will act in that capacity and notify the parties and the court of the name of the assigned lawyer as
soon as practicable. Additionally, the organization or program shall notify the parties and the
court of any changes in the individual assignment.

Article 9. Duration of Appointment

Unless otherwise provided by a court order, an appointment of a noncitizen migrant’s lawyer in a
civil deportation or removal proceeding continues in effect until the lawyer is discharged by court order or
the case is dismissed. The appointment includes all stages thereof, from allegations of the basis of
removal, or initial appointment through all available appellate proceedings. With the permission of the
court, the lawyer may arrange for supplemental or separate counsel to handle proceedings at an appellate
stage.

Article 10. Duties of Migrant’s Lawyer and Scope of Representation

(1) A noncitizen migrant’s lawyer shall participate in any proceeding concerning the individual
immigrant with the same rights and obligations as any other lawyer for a party to the proceeding.

(2) The duties of a noncitizen migrant’s lawyer include, but are not limited to:

(a) taking all steps reasonably necessary to represent the client in the proceeding, including but
not limited to: interviewing and counseling the client, preparing a case theory and strategy,
preparing for and participating in negotiations and hearings, drafting and submitting motions,
memoranda and orders, and such other steps as established by the applicable standards of practice
for lawyers acting on behalf of immigrants in this jurisdiction;
(b) reviewing and accepting or declining, after consultation with the client, any proposed
stipulation for an order affecting the migrant and explaining to the court the basis for any
opposition;
(c) in consultation with the client, taking actions the lawyer considers appropriate to
expedite the proceeding and the resolution of contested issues;
(d) meeting with the client prior to each hearing and for at least one in-person meeting every
quarter;
 Article 11. Rights of access
(1) When the court appoints the migrant’s lawyer, it shall issue an order, with notice to all parties,
authorizing the lawyer to have access to:

a. The client;
i. The government must ensure that counsel can meet with clients detained in
[detaining authority’s custody] in a confidential setting within the first 12 hours
of the person’s detention;

ii. Noncitizen migrants who are being held in custody or detention shall have the
following rights:

(a) To receive visits from appointed counsel;

(b) To converse and correspond with appointed counsel; and

(c) To receive communications sent by appointed counsel without delay.

iii. The arresting or detaining authority shall take all reasonable steps to facilitate
such visits and communication.

iv. The arresting or detaining authority shall forward all correspondence from the
noncitizen migrant that is addressed to appointed counsel without delay

a. All information in governmental custody pertaining to the person in proceedings,

including their [“A-file.”]

Article 12. Lawyer work product and testimony

(1) Except as authorized by [insert reference to this State’s rules of professional conduct] or court
rule, an immigrant’s lawyer may not:

(a) be compelled to produce work product developed during the appointment;

(b) be required to disclose the source of information obtained as a result of the appointment;

(c) provide any testimony that is subject to the attorney-client privilege.

Article 13. [Civil][ judicial] proceedings and migrant’s right of action

(1) A noncitizen migrant who has been subjected to violence, torture or other cruel, inhuman or
degrading treatment or punishment, or threats to their life or safety as a result of exercising the
rights granted by this Law shall have the right to institute [civil] [judicial] proceedings to claim
material and non-material damage suffered as a result of the acts specified.
 (2) The right to pursue a [civil] [judicial] proceeding for material or non-material damages shall not
be affected by the existence of criminal proceedings in connection with the same acts from which
the civil claim derives.

(3) The immigration status or return of the noncitizen migrant to his or her home country or other
absence of the noncitizen migrant from the jurisdiction shall not prevent the court from ordering
payment of compensation under this article.

(4) The noncitizen migrant’s lawyer may be liable for malpractice to the same extent as a lawyer for
any other client.

a. Only the individual migrant and their heir or devisee has a right of action for material and
non-material damages against the lawyer for inaction or action taken in the capacity of
the migrant’s lawyer.

Article 14. Fees and expenses in deportation and removal proceedings

(1) In a deportation or removal proceeding, a noncitizen migrant’s lawyer appointed pursuant to this
Law is entitled to reasonable and timely fees and expenses in an amount set by [court or state
agency to be paid from (authorized public funds)].

(2) To receive payment under this section, the payee shall complete and submit a written claim for
payment, whether interim or final, justifying the fees and expenses charged.

Article 15. Facilitating entry or stay for justice processes

The [competent authority] may grant a [visa] [residence permit] to a noncitizen migrant in order to
facilitate the [investigation and/or] prosecution of a violation under this Law.

Article 16. Protection of migrants against violence

The [competent authority] [shall take appropriate measures] [shall develop guidelines on appropriate
measures] [shall issue orders on appropriate measures] to afford noncitizen migrants appropriate
protection against violence that may be inflicted upon them, whether by individuals or groups, by reason
of exercising the rights granted to them under Chapter II of this Law. These measures shall take into
account the special needs of women and children.

Article 17. Noncitizen migrants who are children

(1) In addition to any other protections provided for in this Law:

a. In all actions by government officials, agencies, and the courts concerning noncitizen
migrants who are children, a primary consideration shall be the best interests of the child;
 b. When the age of a noncitizen migrant is uncertain and there are reasons to believe that the
noncitizen migrant is a child, they shall be presumed to be a child pending verification of
their age;

c. Any interview or examination conducted by someone other than the noncitizen migrant
child’s lawyer of the noncitizen migrant who is a child shall be conducted by a specially
trained professional, in a suitable environment, in a language that the child uses and
understands and in the presence of the child’s parent, legal guardian or a support person;

d. Any interview or examination of the noncitizen migrant who is a child by the child’s
appointed counsel shall be conducted by a specially trained professional, in a suitable
environment, in a language that the child uses and understands and in the presence of the
child’s parent, legal guardian or a support person, if she child so wishes;

e. Noncitizen migrants who are children shall have the right of access to education, which
shall not be refused or limited by reason of their irregular entry or situation, or that of
their parents;

f. The detention of a noncitizen migrant who is a child shall be in conformity with the law
and shall be used only as a measure of last resort and for the shortest appropriate period
of time.

(2) If a noncitizen migrant is an unaccompanied child, the [competent authority] shall:

a. Appoint a legal guardian in addition to counsel to represent the interests of the child;

b. Take all necessary steps to establish the child’s identity and nationality;

c. Make every effort to locate the child’s family including for the purpose of facilitating
family reunification when this is in the best interests of the child.

(3) For the purposes of this article, “unaccompanied child” means a child who has been separated
from both parents and other relatives and is not being cared for by an adult who, by law or
custom, is responsible for doing so.

Article 18. Access to consular officials for noncitizen migrants

(1) Where a noncitizen migrant has been arrested, detained or is in custody, the arresting or detaining
authority is required to inform the smuggled migrant without delay about their right to
communicate with consular officers, and all reasonable steps are to be taken to facilitate such
communication.

(2) If the noncitizen migrant expresses interest in contacting consular officers, the arresting or
detaining authority is required to notify the relevant consul or consuls that a national of that State
has been arrested or detained, provide the location where the smuggled migrant is being held and
facilitate contact.
(3) If a noncitizen migrant indicates that they do not want to have contact with the consular office,
that choice is to be respected.

(4) Noncitizen migrants who are being held in custody or detention shall have the following rights:

(a) To receive visits from consular officers;

(b) To converse and correspond with consular officers in person, by mail, and remotely; and

(c) To receive communications sent by consular authorities without delay.

(5) The arresting or detaining authority shall take all reasonable steps to facilitate such visits and
communication.

(6) The arresting or detaining authority shall forward all correspondence from the noncitizen migrant
that is addressed to the relevant consular office without delay.

Chapter III. Coordination and cooperation

Article 19. Establishment of a national coordinating committee

(1) The [relevant Minister] shall establish a national coordinating [committee/ body] to be comprised
of officials from [insert relevant agencies], officials from other relevant State agencies and
representatives from local government and non-governmental service providers.

(2) The national coordinating [committee/body] shall:

a. Oversee and coordinate the implementation of this Law;

b. Develop a funding agency to facilitate the payment of appointed counsel according to fair
market value;

c. Develop policy, [regulations,] guidelines, procedures and other measures to facilitate the
implementation of this Law;

d. Develop a national plan of action to ensure comprehensive and effective implementation

of this Law, which shall include a process of periodic review of achievement of aims and
objectives;

e. Oversee and report to [the relevant Minister] [Parliament/Congress] on the

implementation of obligations under the Convention on the Protection of the Rights of
All Migrant Workers and Members of their Families;
 f. Facilitate inter-agency and multidisciplinary cooperation between the various government
agencies, international organizations and non-governmental organizations; and

g. Facilitate cooperation with relevant countries of origin, transit and destination, in

particular border control agencies.

(3) [Insert name of agency/representative] shall be appointed as the [Secretary/ Secretariat] of the
Committee/Body. The Committee shall have the capacity to establish [subcommittees/working
groups] as required.

Article 20. Referral of migrants with specific protection needs who are facing deportation or removal
(1) In performing its functions under this chapter, the [competent authority] shall ensure that
noncitizen migrants who are seeking international protection under national asylum laws, the
Convention relating to the Status of Refugees or international law, or who have particular
protection needs are quickly referred to the [appropriate] [competent] authorities to decide on
their case.

(2) The [competent authority] shall ensure that the Office of the United Nations High Commissioner
for Refugees is given access to noncitizen migrants who are asylum-seekers and other persons of
concern to the Office.