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Abstract

Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the off-the-record Joseph hearing challenging detention. If he wins the hearing and is released, he can then secure counsel, and if so, will likely win his case. Yet detained and most likely pro se, he may not even know a Joseph hearing exists, let alone win it, given the complex statutory analysis involved, regarding facts, witnesses, and evidence outside his reach. The immigration detention system today is unique in modern American law, in providing for preventive pretrial detention without counsel pursuant to underlying proceedings without counsel - let alone proceedings so complex that result in a deprivation of liberty as severe as deportation. In this Article, I call this the cascading constitutional deprivation of wrongful detention and deportation. I argue, under modern procedural due process theories, that this cascading constitutional deprivation warrants appointed counsel, notwithstanding traditional plenary power over immigration laws. In a post-Padilla v. Kentucky world where criminal defenders must now advise their clients on the same issues litigated at the Joseph hearing, I argue a right to appointed counsel for mandatorily detained immigrants pending removal proceedings is constitutionally viable and practically feasible.