April 08, 2013

In this article, Jenner & Block Partner Wade A. Thomson and Associate Andrew J. Herink examine a circuit split regarding removal proceedings for noncitizens.  The authors explain that some courts of appeals have held that a noncitizen need only show that the immigration judge violated his or her right to counsel while others have held that a noncitizen must demonstrate that the violation of the right to counsel caused him or her prejudice.  The authors detail the decisions that make up this split, including the recent Montes-Lopez v. Holder ruling in the U.S. Court of Appeals for the Ninth Circuit.  Ultimately, they argue that the disparity among the courts is undesirable and unfair, but that “unless and until the Supreme Court decides the prejudice issue, that unfair disparity will continue to exist.”