Under the cover of the pandemic, the Trump administration has closed the southern border indefinitely to desperate asylum seekers, suspended visas for skilled workers, threatened to deport foreign students, and generally increased the opacity and bureaucracy of the immigration system. Simultaneously, human rights organizations along the border or near ICE detention centers are pleading for volunteer attorneys across the country for one- or two-week stints to assist migrants seeking protection from persecution. When I’ve visited and volunteered at those sites in Tijuana, Nogales, and southern Texas, the truth is obvious to me: there is no way that we volunteers can adequately pick up the slack of doing quality work for more than a handful of individuals during our visits. After all, there are more than 60,000 migrants waiting to apply for asylum at the border right now, and more than 30,000 in ICE detention centers around the country—many operated by for-profit private prison companies. There are simply not enough of us. It is time to require the government to provide an immigration attorney to those who cannot afford one because of what’s at stake.
The legal organizations that do exist cannot meet the need of our local communities. For example, as one of more than twenty legal services programs in the San Francisco Bay Area funded to represent noncitizens facing deportation, the University of San Francisco immigration clinic that I help operate has about 350 open and active cases, with a waiting list of more than 200. Some of the other area agencies have even larger waitlists.
No one should be stuck on a waitlist for vital legal representation. But there is simply not enough legal aid and pro bono help available for those who need it. The law provides that someone facing deportation has a right to counsel, but not at government expense. In other words, if you cannot afford an attorney, you have to hope a law school clinic, a legal services attorney, or a pro bono attorney can take your case—otherwise, you are on your own. The Sixth Amendment does grant a right to government-appointed counsel to criminal defendants, but deportation cases are classified as civil rather than criminal in nature.
Due process arguments that the federal government should provide counsel to those facing removal have not been successful. The only exception is one federal court that ordered the government to provide counsel to immigrant detainees with mental disabilities. But that’s it. Non-detained respondents who are mentally incompetent are not covered by the ruling. Even children facing deportation are not provided counsel; they are regularly forced to represent themselves in court.
Does having an attorney make a difference? Of course. Those in removal proceedings with representation are three times more likely to win their case than those without attorneys. Broken down further, for those in detention without an attorney only one out of seven avoid removal, while detained people who are represented prevail almost half the time. For children facing deportation; only 15 percent of unaccompanied minors facing deportation without representation are permitted to remain in the country, while 73 percent of those with representation are granted relief. Only about a third of individuals facing deportation have counsel.
Why does having an attorney in removal cases make a difference? Of course it helps to know how the process works in the immigration court and the legal requirements for such things like asylum or cancellation of removal relief. However, from there, the list of what attorneys do is long. An attorney can help someone rounded up by ICE prove their U.S. citizenship or, often, determine if they are a U.S. citizen and simply don’t realize it. Then there’s the task of researching whether the government’s allegations are accurate and gathering evidence, letters of support, expert testimony, and psychological evaluations. The client has to be prepared to testify credibly and consistently, and face cross-examination by the government’s attorney (the government is always represented in deportation cases even if the respondent is not). Clients suffering from PTSD—most asylum applicants—need to be evaluated and counseled more carefully. The client also needs to be prepared to be questioned by the immigration judge. For clients who are unaccompanied minors who fled gang or cartel violence, the attorney may need to go into state court for a special order to protect the child from deportation. Similarly, for clients facing deportation because of criminal charges, the attorney may need to go back into to state criminal court to challenge the viability of the guilty plea that resulted in the criminal conviction that led to deportation charges.
It’s not surprising that U.S. immigration laws are often referred to by federal judges as “byzantine.” The Supreme Court recognized those complexities and the importance of knowing the immigration laws in Padilla v. Kentucky, a 2010 case that imposes a duty on criminal defense attorneys to inform clients of the risk of deportation.
Different cities and states around the country have recognized the importance of providing immigration attorneys to individuals facing removal. The New York Immigrant Family Unity Project, a program funded by the New York City Council, is the nation’s first public defender system for immigrants facing deportation. NYIFUP has pioneered representation for detained indigent immigrants in deportation proceedings in New York City who were unrepresented at their initial hearing. In northern California, San Francisco, San Mateo, Alameda, Sonoma, Santa Clara counties provide funding for individuals facing removal—including many who are not detained. The state of California regularly provides funding for immigration services, including special funding for representing unaccompanied minors. Chicago also created a fund for immigrant legal services in response to the Trump administration’s aggressive immigration enforcement tactics. These efforts are encouraging, but thousands are falling through the cracks of this patchwork system.
It’s time for a more drastic intervention to ensure everyone who needs representation in immigration court gets it. We’ve made such a move before. Before 1963, states were not required to provide counsel to every criminal defendant under the Sixth Amendment. However, in Gideon v. Wainwright, the Supreme Court reinterpreted the Constitution to mandate that every defendant in criminal court be provided an attorney. There was too much at stake, namely personal liberty, to rule otherwise—even for Gideon, who was charged with breaking and entering with intent to commit petty larceny. In the Court’s view, the assistance of counsel is a safeguard necessary to insure fundamental human rights of life and liberty. In a concurrence, Justice Clark emphasized that it would be a difficult “value judgment” to make that the “deprival of liberty [is] less onerous than deprival of life.”
We are at a Gideon v. Wainwright moment in immigration law today. There is simply too much at stake in deportation hearings to allow the outcome to be determined by whether the respondent is wealthy enough to afford counsel or lucky enough to obtain competent pro bono counsel or a waitlist spot opens up in a legal services program. The Ninth Circuit Court of Appeals has come close to ordering court-appointed counsel for indigent children in removal proceedings. But that’s it. Just as the Supreme Court has stepped up to recognize that due process requires the appointment of counsel for all criminal defendants in Gideon as well as juveniles in delinquency proceedings, the courts must do the same for deportation respondents. If not, Congress needs to intervene to fund universal representation for immigrants facing removal.
Justice Brandeis recognized long ago that deportation is akin to the loss of property or life, or “all that makes life worth living.” Now we should borrow the principles of the Sixth Amendment and apply them to individuals facing deportation. Counsel should be provided at government expense. The vast majority in proceedings are either facing the prospects of separation from loved ones here or extreme violence in places like Honduras, Guatemala, and El Salvador. For them, getting an attorney is a matter of life and death.