Opinion | Facing the Injustice of Immigration Court
First of two articles.
In February 2017, Carlos was arrested by Immigration and Customs Enforcement shortly after he dropped one of his daughters at her school bus stop; the agents had been waiting there for him. He was locked in immigration detention in the Bergen County Jail in New Jersey for six weeks before he had his first hearing in immigration court.
Carlos, who wishes to be identified only by his first name, worked as a mechanic and held a green card, making him a legal permanent resident. In jail, he was confused, he missed his three daughters, and he had no idea what was going to happen to him next. He had been arrested so that he could be deported to his native Dominican Republic, having been convicted several years before for two offenses. One was a misdemeanor assault in 2013, for which he served five months in jail, and the other was attempted burglary in 2011, for which he served six months.
“In that month when I was waiting to see a judge, there was no information,” Carlos said. “It was just chaos.”
Then one day, jail guards shackled his legs and hands and transported him and other detainees in the back of a van to the Varick Street Immigration Court in Lower Manhattan. His family had been struggling to find a lawyer, and he wasn’t sure what awaited him. To his surprise, he was taken to a fourth-floor room where he met Molly Lauterback, an attorney from Brooklyn Defender Services, a city-supported pro bono agency; she told him she could represent him free of charge.
“A lot of money would’ve been spent on a case like this, and we didn’t have the resources for that,” Carlos told me. So he agreed to let Ms. Lauterback and her team represent him. And a year and a half later, she and her team achieved his release from detention under a “cancellation of removal,” formerly known as a suspension of deportation.
Ms. Lauterback and her colleagues are part of the New York Immigrant Family Unity Project, which aims to make itself the nation’s first of many public defender systems for detained immigrants in deportation proceedings. Immigrants in the Varick Street Immigration Court are now 11 times more likely to win their cases than before the program began. It is now being replicated across the country, in states such as Texas and Illinois. But the Trump administration has sought to undermine the New York program, which at first had support from federal officials, by making it more difficult for detained immigrants to get access to the program’s lawyers.
Immigrants like Carlos are not necessarily entitled to a lawyer in immigration court. The Sixth Amendment guarantees an individual’s right to counsel in criminal proceedings, but the government argues that the right does not extend to immigration courts, which are deemed civil despite the severity of the consequences being considered. In a 2014 CNN opinion article, a nationally prominent immigration judge, Dana Leigh Marks of San Francisco, said the drama of immigration cases “often involves life and death consequences,” making them “amount to death penalty cases heard in traffic court settings.”
There are some exceptions. For example, the federal government must provide a lawyer to immigrants with mental disabilities. But a large majority of people, including children, are not entitled by law to have such representation. According to Syracuse University’s Transactional Records Access Clearinghouse, there are now more than 300,000 pending cases in which immigrants are unrepresented, which leaves them facing highly trained government attorneys alone as they navigate complex immigration law.
In 2008, that issue began to worry Judge Robert Katzmann in the Second Circuit Court of Appeals. Federal courts have the power to review decisions of the appellate Board of Immigration Appeals if the individual is able to file a request. Judge Katzmann was seeing the number of such requests go up and noticed that all of the immigrants were getting a shockingly poor quality of representation. Between 1999 and 2006, he saw immigration cases rise from a minuscule portion of the court’s docket to almost 40 percent.
“In all too many cases, I had the sense that if only the immigrant had competent counsel at the very outset of immigration proceedings” Judge Katzmann said during a speech in 2012, “the outcome might have been different, the noncitizen might have prevailed.”
The judge formed a study group that found that immigrants in detention and immigrants without legal representation were much more likely than others to be deported. A 2011 report by the group found that 60 percent of detained immigrants did not have lawyers and that 97 percent of detained immigrants who lacked a lawyer were being deported.
“It was heartbreaking to go to Varick Street and to see folks who were without lawyers in these proceedings,” said Jennifer Williams, an immigration attorney with New York’s Legal Aid Society. “Totally have no idea what is going on, how to best defend themselves. They’re shackled in orange jumpsuits. It was appalling.”
Spurred on by these findings, Judge Katzmann’s study group decided to create the New York Immigrant Family Unity Project in 2013, with the goal of creating a pilot program for universal representation that could eventually be expanded to represent every detained immigrant with a hearing at the Varick Street Immigration Court. The City Council funded the pilot program and the Vera Institute of Justice facilitated it.
The pilot grew and became fully funded in 2014 and now funds three organizations to provide lawyers — the Brooklyn Defender Services, the Bronx Defenders and the Legal Aid Society. Attorneys from these organizations meet every immigrant with a hearing at Varick Street, including those detained in New Jersey and upstate New York, and offer their services to anybody whose income is less than 200 percent of the poverty line.
In 2017, Vera issued a report on the first three years of the program and the results were striking. The rate of success — defined as the immigrant’s being allowed to stay in the United States — had risen by 1,100 percent. Before the program was available, potential clients who went unrepresented had a 4 percent success rate, while later clients who were represented through the program had a 48 percent success rate, the report found.
Cases like Carlos’s are a striking example of the need for a lawyer. According to his attorneys, Carlos had been placed in deportation proceedings because of the two previous arrests. In the first, in 2011, he was found in the driveway of a home that had been burglarized, but he had never entered the house. In the second, in 2013, he was charged with assault when he fought to defend his girlfriend against a drunk customer at the restaurant where she worked. Green-card holders can be ordered deported if they commit a crime, which can be as minor as hopping a subway turnstile. But Ms. Lauterback told Carlos he could be eligible for a “cancellation of removal,” considering the larger arc of his life in the United States after serving his jail time.
Aware that the burden of proof in a cancellation of removal case is high, Carlos’s lawyers brought up his previous taxes, social-work letters, letters of support and a psychological evaluation regarding past hardship. The prospect of Carlos’s being able to gather such documents while in detention is hard to fathom — especially given that phone calls to anyone except a lawyer can cost about 25 cents per minute. “It’s like an automatic deportation if you don’t have a lawyer,” Carlos said.
For more than a year, Ms. Lauterback fought his case while he was in detention. During that time his father’s house burned down, destroying a lot of the necessary documentation, so the lawyers had to request copies from the respective federal agencies.
The Executive Office for Immigration Review, an agency in the Justice Department that houses the courts, and ICE, which has attorneys acting as prosecutors in immigration cases, initially appreciated the public defender model in New York and helped facilitate the program. But since the beginning of the Trump administration, the program has come under threat.
For example, ICE and the Executive Office for Immigration Review have made it harder for attorneys to perform intake on incoming detainees. Previously, when detainees who had not been represented at their initial hearing were brought into the court from the detention centers, attorneys would meet with them in a separate room with booths. The lawyers would question the detainees to get a sense of what forms of relief their prospective clients were eligible for and whether they met the financial requirements of the program, among other things.
But last year, after an Occupy ICE protest at Varick Street, ICE began requiring all immigrants to appear for hearings via video teleconference, making it impossible for lawyers to meet potential clients. Almost a year after the protest ended, ICE still makes most detainees appear via video. In December, it surprised the attorneys by sending detained immigrants to the immigration court at 26 Federal Plaza in Manhattan for no apparent reason.
Despite the recent difficulties, however, the program in New York has sparked inspiration and led the Vera Institute to expand it around the country. In November 2017, Vera introduced the Safety and Fairness for Everyone (SAFE) Network, which now includes 18 cities — six were added in July — in states such as Texas, Illinois and Maryland. Vera offered a one-time grant to help get the program off the ground and conduct consultations once it was running. The programs are smaller than New York City’s, which had a government commitment of more than $10 million. Most localities are offering only hundreds of thousands in funding.
According to Vera, over 30 cities, counties and states around the country have now set up their own legal defense funds for immigrants, many of which are modeled after New York’s program; they include Los Angeles, Chicago, St. Paul and Ann Arbor, Mich. New York and New Jersey have established statewide funds.
Annie Chen, program director of the SAFE Network, said that Vera aims to build this city-led movement into a state-led movement and that the organization’s long-term objective would be a federal right to counsel and additional federal funding for lawyers in immigration court.
As for Carlos, the program kept him and his family together. Ms. Lauterback and her team were able to win his release in 2018 after 18 months of detention.
“It was very difficult for my family,” he said. “When I was released, I was so happy because I was able to be with my daughters, which is the most important thing to me. But even then I felt a lot of pain. I needed to start anew.”
Mazin Sidahmed is a journalist who co-founded the immigration news site Documented, and previously worked for the Guardian U.S., Politico and The Daily Star in Beirut, Lebanon.
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