Funding Lawyers for Immigrants is a Path Forward in the Age of Trump
César Cuauhtémoc García Hernández is an assistant professor in the Sturm College of Law. He has taught at the University of Denver since 2013. César's academic interests center on crimmigration law, including teaching a seminar on the topic and having published articles about the right to counsel for immigrants in the criminal justice system, immigration imprisonment and race-based immigration policing. He publishes crimmigration.com, a blog about the convergence of criminal and immigration law that is a past recipient of the 100 best law blogs honor by the ABA Journal.
There are currently 540,000 people in deportation proceedings somewhere in the United States. Most will make their final stance against forced separation from their families and homes without an attorney. This is a shameful mark on our nation’s commitment to justice that should stop. Last week, New York officials took a significant step in that direction by funding a state-wide network of attorneys to represent people undergoing immigration court proceedings while detained. More cities and states should follow New York’s lead.
Despite what politicians frequently suggest, deciding whether someone is deportable is often anything but simple. One court memorably described immigration law as “a labyrinth almost as impenetrable as the Internal Revenue Code.” Successfully navigating this labyrinth is the difference between continuing to live and work in the United States and forced removal. For some, that’s the difference between life and death. In immigration court, there is no right to appointed counsel. If you are too poor to hire a lawyer, then you are out of luck. The same goes if you are imprisoned in a detention center in an isolated part of the country where there are not enough lawyers to go around.
Facing the risk of banishment without a lawyer is the rule not the exception in United States immigration courts. A recent study of 1.2 million immigration court cases over a six-year period found that sixty-six percent will walk this gauntlet on their own. For the 400,000 or so people who every year are locked inside an immigration detention center while their cases wind their way through the backlogged immigration court system, the likelihood that they will have the assistance of counsel is infinitely smaller. Only fourteen percent of detained immigrants will stand before an immigration judge with a lawyer by their side.
There is almost nothing anyone can do that has a greater chance of improving their chances of staying in the United States than finding a lawyer who will put together the best argument that the law allows. Complying with United States laws doesn’t ensure that an immigrant will avoid immigration court. Nor does being a United States citizen. From 2007 to 2016, roughly 1,500 United States citizens were detained by or on behalf of immigration officials.
Every day immigration judges consider whether a person who is in the country lawfully has done something that triggers deportation. Every day they consider whether a person is a United States citizen. Without an attorney, proving either is remarkably tough for most people. Not surprisingly, compared to people in deportation proceedings without attorneys, those who are represented are more likely to convince an immigration judge to let them fight their case from outside a detention center and, most importantly, more likely to win.
In 2013, New York City pioneered a city-led effort to address this gaping hole in the United States’ system of justice. Pairing city funds with private donations, New York guarantees that everyone facing deportation proceedings in Manhattan receives an attorney. As a result, fewer people spend time detained. This is good for the federal government which would otherwise have to pay for detention. And it’s good for immigrants who can return to their families and jobs while heeding court dates.
Having a lawyer doesn’t guarantee that anyone will avoid removal. But even then, a lawyer adds value. To the immigrant with no chance of staying in the United States, a cold dose of reality can dispel lingering hopes and encourage agreeing to deportation. To concerned observers, there is a world of difference knowing that an immigrant was removed because that’s what the law requires and not simply because the person was too poor to hire someone to make the best argument that the law allows.
In the months since President Trump’s surprise election, leaders in many cities and states have embraced messages welcoming immigrants. Some have gone so far as to describe themselves as “sanctuaries,” a term that the President and his supporters decry claiming it endangers law-abiding members of our communities. President Trump and Attorney General Sessions have repeatedly promised to strip federal funding from sanctuary jurisdictions.
New York’s decision to provide detained immigrants with lawyers offers a refreshing path away from dead-end political posturing. No city or state can ever guarantee its residents that they won’t have a run-in with ICE. With almost 40,000 agents spread throughout the United States, ICE and its border-focused sibling within DHS, Customs and Border Protection, have a presence in almost every city or town. At some point, someone in every community will end up in the immigration detention and deportation pipeline. When that happens, a lawyer ensures that the legal process operates according to law and not according to the happenstance of poverty. That much, at least, should be a goal we all embrace.