This blog post is a response to a design-thinking and race-based advocacy challenge for the Access to Justice Tech Fellowship.
“In all too many cases, I had the sense that if only the immigrant had competent counsel at the very outset of immigration proceedings… the outcome might have been different, the noncitizen might have prevailed.”
– Chief Judge Robert A. Katzmann, Second Circuit Court of Appeals
Immigrants in removal proceedings have a statutory right to counsel. Unlike criminal defendants, however, indigent immigrants are not given government-funded counsel and instead must obtain representation at their own expense. Without an attorney, immigrants represent themselves in extremely complex proceedings. Even children in removal proceedings are expected to represent themselves if they can’t afford a lawyer or find a pro bono lawyer.
There are amazing organizations that offer free legal services, like Keep Tucson Together and the Florence Immigrant and Refugee Rights Project. However, Bill Ong Hing, author of this Slate article that calls for government-funded representation, emphasizes that:
“There is simply not enough legal aid and pro bono help available for those who need it.”
So without government-funded representation, most immigrant respondents appear pro se.
The American Immigration Council reports that, based on data collected from 2007-2012, only 37% of all immigrants in removal proceedings had counsel. And just 14% of detained immigrants had counsel during this same period. Immigrants with hearings in small cities were the least likely to have representation.
We know that immigrants with representation have better outcomes.
For example, the same AIC report states that detained immigrants with counsel were 4x as likely to be released from detention than pro se detained immigrants.
In 2011, New York City piloted a pro bono agency that provided free deportation defense. According to the New York Times, “immigrants in the Varick Street Immigration Court are now 11 times more likely to win their cases than before the program began.” This program is now fully funded and, by 2017, the “rate of success — defined as the immigrant’s being allowed to stay in the United States — had risen by 1,100 percent.”
This means that there are wildly disparate outcomes depending on if you can find and afford to hire an attorney.
I’ve been thinking about this a lot in the last several weeks in relation to my fellowship project evaluating the use of video teleconferencing (VTC) technology in immigration courts (for more on this, see my previous post!).
For my project, I’m interviewing attorneys who represent immigrants detained at La Palma Correctional Center about their experiences with hearings conducted over VTC. I’ve heard some horrifying things about their experiences, which will no doubt be the subject of a future blog post. I keep wondering, though, about pro se immigrant respondents. If attorneys are reporting terrible hearings where judges mute immigrants’ VTC feeds or make verbally abusive remarks to the attorneys, what are these VTC hearings like for immigrants without legal counsel?
Pima County must follow New York City’s lead and create an Office of Immigration Representation to ensure that Pima County residents are not forced to go through complicated immigration proceedings alone.
A system can’t purport to promise full and fair hearings without guaranteeing government-funded representation, especially when we know that outcomes vary significantly based on access to representation.
The Pima County Justice for All campaign reports that last year a staggering 98% of immigrants appearing at the Tucson Immigration Court did not have representation:
“Last year, close to 24,000 cases were processed through Tucson Immigration Court. Of those cases, 98% of people did not have a lawyer to help represent and defend them in court. These are not unknown individuals, these are families, friends, and neighbors who have been in the area, paying into our tax systems and helping build our communities, for years. Our friends are entitled to proper representation and support.”
An Office of Immigration Representation, funded by Pima County, would eradicate the disparities between immigrants with and without counsel. No one should be deported because they can’t afford a lawyer (maybe no one should be deported at all, but that’s a conversation for another day).