No Lawyer? No Due Process: The Ill-Conceived Role of the Substantial Prejudice Requirement for Noncitizen Felons

In 2022, in Priva v. U.S. Attorney General, the U.S. Court of Appeals for the Eleventh Circuit held that to prevail on a due process claim regarding the denial of counsel during a deportation-related reasonable fear hearing, a noncitizen aggravated felon must show that they were substantially prejudiced by the denial. Some courts have applied the substantial prejudice requirement to due process challenges to immigration proceedings. These courts have essentially treated denial of counsel claims as equivalent to other due process disputes. A majority of circuits recognize, on the other hand, that demonstrating substantial prejudice is not required when there is a corresponding statutory right to counsel. This Comment argues that the Priva court was wrong to impose the substantial prejudice requirement because there is a federal statutory right to counsel in deportation proceedings and the denial of counsel is distinct from other due process challenges due to its inherently prejudicial consequences.