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39 T. Marshall L. Rev. 245 (2013-2014)
Montes-Lopez v. Holder: Applying Eldridge to Ensure a Per Se Right to Counsel for Indigent Immigrants in Removal Proceedings

handle is hein.journals/thurlr39 and id is 261 raw text is: MONTES-LOPEZ V HOLDER: APPLYING
ELDRIDGE TO ENSURE A PER SE RIGHT TO
COUNSEL FOR INDIGENT IMMIGRANTS IN
REMOVAL PROCEEDINGS
SOULMAZ TAGHAVI
ABSTRACT
Part I of this Comment reviews the historical and current state of
procedural due process and its role in Immigration Law, specifically
removal proceedings. Part II extends certain legal arguments in Montes-
Lopez v. Holder, which held among divided federal Circuit Courts that
an immigrant in removal proceedings has a statutory and constitutional
right to appointed counsel. Finally, Part III demonstrates how a non-
citizen in deportation hearing has a per se right to counsel outlined by
the Immigration and Nationality Act (INA) and brought to life by the
Fifth Amendment's due process clause.
INTRODUCTION
Miguel is a citizen and national of Honduras. He dreamed of being a
professional soccer player even though he knew his odds were quite long.
Miguel stayed out of trouble, studied hard in school, and was devoutly
religious. When he turned thirteen, it was not long until his age, gender,
and nature of his character made him a target for a gang called Mara
Salvatrucha, more commonly known as MS-13. When Miguel resisted
their overtures to join the gang, local MS-13 members became violent.
Terrorizing the young boy's weekly soccer matches, gang members
eventually shot and killed numerous playmates including Miguel's brother
and best friend before his very eyes. The gang continued to threaten
Miguel's life regularly.
Fearful for his life, Miguel entered the United States and eventually
made his way to North Carolina. Miguel was enrolled in school and when
he turned sixteen, transportation became problematic. He discovered he
needed a driver's license. People in his community told Miguel he should
visit an attorney and seek help. Upon doing so, Miguel found out just how
vulnerable he was to being deported back to Honduras. Further, he
discovered that without a legal status he could not drive, work, or possibly
apply for federal loans to attend college one day. Without legal assistance,

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