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

Today, we’re bringing you the final installment in our three-part series about immigration court. In the first two reports, we heard about how immigrants’ need for free legal services exceeds what local non profits can provide. And even those who can afford to hire private attorneys sometimes fall prey to scam artists. So should anything be done to improve immigrants’ chances of getting a fair shake in court? That’s the subject of today’s report, from Jude Joffe-Block.

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JUDE JOFFE-BLOCK: If you’ve ever watched a cop show on TV, this will sound familiar.

TELEVISION CLIP: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you for free.

Most of us have memorized the Miranda rights, like if you cannot afford a lawyer, one will be provided for you for free. That’s if you’re arrested for a crime, like murder, rape or theft. That right is thanks to a 1963 Supreme Court decision. But that ruling didn’t apply to civil courts – including immigration court. So, if you’re an immigrant trying to convince the government that you are eligible to stay in this country, the court won’t give you a free attorney, no matter how little money you make. Some advocates say that’s unjust. Carolyn Lamm is president of the American Bar Association in Washington D.C.

CAROLYN LAMM: The outcome of a case shouldn’t be dependent on your income and your ability to pay for counsel.

And yet, that may be what happens. In 2008, only 40% of immigrants in immigration court were represented by an attorney. Immigrants held in detention facilities often have a hard time finding an attorney who will take on their case, especially if they’re transferred to jails far from home. And low income immigrants who turn to nonprofits may find them too overwhelmed to help. One consequence, Lamm says, is that without counsel, some immigrants who might otherwise qualify to stay in the country could end up being deported.

LAMM: Not everyone that crosses our border as an immigrant is here illegally, and everyone should have the right to demonstrate why that is, and why they are here legally or should be permitted to stay. It is the hallmark of our country in terms of due process and rule of law.

Lamm says a deportation order can have severe life consequences—and not just for the person who is sent back home.

LAMM: It disrupts families, it disrupts communities, it disrupts lives. And if the immigrant is in fact someone who was persecuted in the country they came from, it is life threatening. If they are sent back they will be killed. Their families who are there will be killed. And so it is about the highest stakes you can imagine.

Those high stakes are why the American Bar Association wants to change the system to screen immigrants facing deportation, and provide a free lawyer to anyone with a viable case who can't afford one. In recent months, other legal organizations have issued similar recommendations, including the City Bar Association of New York and the bipartisan think tank the Constitution Project in Washington, D.C. Lamm says such a change is the only way to make the system fair. The ABA organizes attorneys to volunteer in immigration court, but Lamm says they can’t do the job alone.

LAMM: We are not close to scratching the surface. We can’t carry on a governmental function, and that is what it is. We do the best we can to give as much defense as we can on a voluntary basis and a pro bono basis, but we can’t fill the gap.

But not all legal experts agree the government should provide attorneys for low-income defendants in immigration court. Ted Frank, a legal analyst and president of the Center for Class Action Fairness, says at a time of economic crisis, putting public money towards representing immigrants in court would be a mistake.

TED FRANK: That is money that we can’t be spending on healthcare, that is money we can’t be spending on education, that is money that we can’t be spending on reducing taxes and giving people the incentive to create jobs, instead it is spending it on people who end up turning out to be illegal aliens.

Furthermore, Frank says, government appointed counsel in immigration court would be subject to some of the same pitfalls as the public defender system, such as excessive case loads and clogged court dockets.

FRANK: There is going to be a triage going on that is going to result in everyone getting poor representation rather than the people with the best cases getting the best representation, and it’s not clear to me that that makes the immigrants better off.

Frank says a better solution would be to increase the number of volunteer lawyers representing qualified immigrants.

FRANK: If we are not getting the proper amount of resources into pro bono work, we should do things to make it easier for attorneys to engage in pro bono work, or we should reallocate where our pro bono hours are going so that they are going towards these immigration and asylum cases.

Whether immigration lawyers come as volunteers or on the government dole, increasing their ranks could help the courts as well as the defendants. San Francisco Immigration Judge Dana Marks, who serves as head of the National Association of Immigration Judges, says courts run more efficiently when immigrants have attorneys.

DANA MARKS: The National Association of Immigration Judges supports any efforts which would increase competent representation for immigrants in removal proceedings. It is a valuable service to the court as well as to the individuals involved when people are represented competently.

Most parties agree that defendants in immigration court need more access to legal representation. But they disagree on how to accomplish that. It is unlikely that the policies will be changing anytime soon, but the conversation is likely to continue.

For Crosscurrents, I’m Jude Joffe-Block.

Jude Joffe-Block is a student at the UC Berkeley Graduate School of Journalism.

Immigration court part 1: the struggle to access legal counsel

Immigration court part 2: fraudulent lawyers prey on immigrants