This commentary is from César Cuauhtémoc García Hernández, assistant professor of law at the University of Denver.
Inside a gleaming office tower in downtown Denver, people file into one of the country’s sixty immigration courthouses. Single men, women, children, even entire families, present themselves before an immigration judge. When their names are called, they learn why the federal government wants them removed from the United States. A trained prosecutor employed by the Department of Homeland Security (DHS) announces the government’s charges, then the judge turns to the immigrants. Some are fortunate to have a lawyer who can push back. Maybe the government has the facts wrong. Perhaps there is a bit of immigration law that will allow them to remain in the country.
Many will never know because they are simply too poor to hire a lawyer.
Unlike in criminal cases, people facing deportation in immigration courts are not entitled to a government-funded attorney. They can hire a lawyer if they have enough money, but if they are too poor to pay legal fees they are forced to stand before an immigration judge to defend themselves as best they are able.
An immigrant defense fund won’t stop ICE from arresting people, but it does send the message that communities that claim to value immigrants are willing to put their money where their mouth is.
In Denver, one-third of the defendants in immigration court appear without a lawyer. Among those who are detained by the Immigration and Customs Enforcement (ICE) division of DHS while their immigration court case unwinds, an astounding ninety-one percent lacked counsel.
Denver is no exception. Nationwide, hundreds of thousands of people face immigration court unaided every year.
On the campaign trail, Donald Trump’s frequent attacks on immigrants excited his supporters and instilled fear in immigrant communities. Since taking office, President Trump’s administration has attempted to keep the promise of his anti-immigrant campaign rhetoric. In a pair of executive orders signed in January, Mr. Trump directed the DHS to wield its massive immigration detention and deportation apparatus broadly. What little data exists from the Trump administration’s first months in office suggests that DHS officers have heeded the president’s directive. ICE reports that it arrested thirty-seven percent more people from January 22 to April 29, 2017 than it did during that same 100-day window in 2016.
In response, several cities, counties, and states have taken steps to protect the immigrant members of their communities. Among the most innovative and impactful efforts are locally funded immigrant defense funds. Pioneered by New York City in 2013, immigrant defense initiatives aim to take poverty out of the deportation equation. Instead of leaving poor immigrants to fend for themselves, a growing number of cities, counties, and states have devoted funds, sometimes in partnership with private donors, to hire attorneys to represent people in immigration court. In the four years since New York launched its program, New Yorkers locked up in an immigration detention center have been able to count on a lawyer’s assistance to determine whether they have a plausible legal argument that might allow them to get out of detention by paying a bond and avoid deportation.
While President Trump rode his anti-immigrant rhetoric into the White House, he did not create the federal government’s detention and deportation machinery. Instead, he inherited a well-oiled engine that has operated robustly for years. Under President Obama’s watch, the federal government famously deported more people than any previous presidential administration. From 2009 to 2015, DHS removed 2.7 million people. During the same period, DHS detained roughly 400,000 people every year while they waited to learn whether they would be allowed to remain in the United States. With detention and deportation numbers soaring, immigrant defense funds are ever more essential as a practical step to providing sanctuary for immigrants.
Mounting a competent defense against a deportation case has become a privilege out of reach for most immigrants accused of violating immigration laws. A study of over 1.2 million cases from 2007 to 2012 found that sixty-three percent of people facing the possibility of deportation did so without a lawyer’s help. For detained immigrants, the lack of representation was even more severe: Eighty-six percent went without representation.
But with the establishment of immigrant defense funds, a significant number of people have been spared detention or deportation.
In New York City, lawyers have doubled the percentage of immigrants who are able to get out of detention, saving the federal government money and helping immigrants mount defenses with the support of families and friends—all the while continuing to work. When lawyers have identified a legal argument that might help defeat a deportation charge, they have won two-thirds of cases, according to preliminary data. And when lawyers have decided that there is no legal basis for a person to stay here, they have had that difficult conversation with clients, saving time, money, and headaches for everyone. Building on New York City’s success, the New York Legislature recently devoted enough funding to expand the program statewide, making it the first state to do so.
Other local governments are following New York’s lead. Chicago and Los Angeles the nation’s two largest cities after New York, have each launched their own defense initiatives. L.A. has partnered with the county to expand its funding and reach. The California legislature then took the project statewide. Smaller cities such as Austin and Washington D.C have set up their own initiatives. Immigrant defense projects are likely to continue to blossom in the coming months as the Vera Institute for Justice, among the nation’s most respected criminal-justice policy analysts, recently sought proposals from local governments interested in setting up their own initiatives. Vera offers cities and counties the high-caliber technical assistance they have honed over decades of analyzing criminal justice policies and the promise of tapping a pool of private donations to match public seed funding.
For all the progress being made to expand immigrant defense funds, significant challenges remain. Even in many liberal cities and counties, elected officials are reluctant to put up public money for a long-term indigent legal defense initiative. In staunchly-Democratic Denver, for example, where Hillary Clinton took almost seventy-four percent of the vote last November, a liberal city councilman asked to champion a defense fund recently put the brakes on any such hopes.
In other locales, advocates are facing demands to carve out exceptions for certain immigrants. Debates raged recently in Los Angeles and New York about excluding people convicted of certain crimes from receiving the aid of a publicly-paid lawyer to help them avoid deportation. New York’s Mayor Bill de Blasio says none of the $26 million the city has pledged for its immigrant defense fund should go to help anyone convicted of any of 170 crimes. Over half the members of the City Council say the city should continue funding immigration lawyers as it has since 2013 by asking about income only. California’s governor signed a budget that excludes people convicted of certain crimes from accessing the state’s just-launched defense fund. Even when funding does come through, there is the challenge of finding suitable non-governmental partners to actually deliver legal representation. With the federal government’s immigration detention and deportation agents scaring migrants daily, time is of the essence.
Faced with the realization that hundreds of thousands of immigrants annually face gut-wrenching ordeals – locked up and on the brink of deportation without a meaningful way to help themselves – elected officials throughout the country are struggling to figure out how they should respond. An immigrant defense fund won’t stop ICE from arresting people, but it does send the message that communities that claim to value immigrants are willing to put their money where their mouth is. With a lawyer by their side, immigrants who find themselves in immigration court are not guaranteed victory. But they do have the assurance that if the nightmare of deportation happens, it will be because the law required it and not simply because they were too poor to hire a lawyer.
Fi2W is supported by the David and Katherine Moore Family Foundation, the Ralph E. Odgen Foundation, The J.M. Kaplan Fund, an anonymous donor and readers like you.