Immigration court part 1: the struggle to access legal counsel

Demand is up for free legal representation. The San Francisco Public Defender’s office says the number of felony cases it handles has increased by more than 20 percent over the past two years. When criminal defendants can’t afford to pay for a lawyer, the court will appoint them one for free. But not all defendants have that right. If you’re called to immigration court, for example, you have to hire a private attorney. If you can’t afford one, you’re on your own. Immigration court is not part of the judicial system – it actually falls under the executive branch. In the coming weeks, we’ll be taking an in-depth look to examine whether the current system is providing adequate justice to immigrants. Today, reporter Jude Joffe-Block looks into the options for those immigrants who are facing a court date but can’t afford an attorney.

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JUDE JOFFE-BLOCK: You would never notice it if you were walking by, because there are no signs, but San Francisco’s immigration court is on the 8^th and 9^th floors of a nondescript office building here on Montgomery Street in the city’s financial district. Immigrants can get a notice to appear here if they are facing deportation or applying for asylum. The first court hearing begins in half an hour. I speak with a few people waiting outside. They’re here without lawyers.

JOFFE-BLOCK: Do you guys have a lawyer today?

WOMAN: Como dice?

MAN: Si tiene abogado.

WOMAN: Oh, no.

SECOND MAN: I should bring a lawyer but I don’t have one. I don’t know if they will let me talk to the judge or not.

This man, who didn’t give his name, will be able to speak with a judge. In fact, anyone here today for the first time will be represented by a volunteer attorney from the bar association of San Francisco. But after that first hearing, they’ll need to find an attorney on their own if they want to be represented. Most won’t, even though research shows immigrants who have lawyers are much more likely to prove they have a right to be here. For many, it’s just not possible – most private attorneys charge 4 to 10 thousand dollars for a deportation defense.

While the court doesn’t offer attorneys, it is required to distribute a list of free legal service providers so low-income immigrants can find lawyers.

ROBIN STUTMAN: This list is updated quarterly and it is posted on our website and it is also individually distributed to non-citizens who are in proceedings before our court.

Robin Stutman works for the body that oversees immigration court.

STUTMAN: So certainly I would think that would be a very valuable resource for people who don’t have the means to pay for attorneys to represent them.

Sure enough, a clerk on the 8^th floor slides a couple sheets of paper across the counter as soon as I ask. I do my own dialing to see whether the nine organizations listed are taking new clients.

The first one is San Francisco’s Asian Law Caucus, where I reach attorney Joren Lyons. He says on average, three or four people a day call seeking help after seeing his organization’s name on the list. But he says the Asian Law Caucus is already handling close to a hundred deportation defense cases.

JOREN LYONS: And that is about our limit. We are pretty much at a point that we can’t take a new case until we finish an old case, unless there is something particularly urgent or compelling.

And Lyons says all nonprofit legal groups are facing the same problem.

LYONS: There is no way that even every service provider that has any competency in immigration law taking every since case they could possibly stretch themselves take, there is no way even that could meet the demand for representation by people who can not afford a private attorney. It is just beyond all conceivable capacity. 

So instead, many organizations have decided to focus on offering advice. One of them is the nonprofit International Institute of the Bay Area. At its Oakland office, attorney Susan Bowyer is seeing clients in a cramped room stuffed with files and papers.

Bowyer’s organization pulled itself off the court’s list of free service providers. She says it was too heartbreaking to keep turning away people searching for a free attorney.

SUSAN BOWYER: And when someone calls us and we say no, we can’t help you, we know they have already talked to 5 agencies and they have heard that same answer from those agencies, and then they are going to call another five, and get the same answer.

Bowyer says she wishes she could offer free representation in court to more people facing deportation, but she doesn’t have the resources. Working on just one deportation defense case costs the organization a thousand dollars. Asylum claims are even more expensive. But Bowyer says it’s nearly impossible to find foundation support or grants to support that work.

BOWYER: There isn’t that kind of funding, there is not general, humanitarian, legal service funding available.

Bowyer helps immigrants determine whether to hire a private attorney.

BOWYER: People often can borrow money, and it’s just a question of  whether it’s worth it to borrow that money. Do you want to be in debt for the next five years—or, if you get in debt for 5 years, is it really going to save you from deportation, or is it?

When immigrants hire private lawyers, they also run the risk of exploitation. Some attorneys have taken advantage of unsuspecting immigrants by charging high fees on cases they can’t win. So, for some low-income defendants in immigration court, access to an affordable and trustworthy attorney may be nearly impossible.

For Crosscurrents, I’m Jude Joffe-Block.

Immigration court part 2: fraudulent lawyers prey on immigrants

Immigration court part 3: proposals to make the system more fair