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  • Isabel Diez

Universal Representation: A movement to establish the right to counsel in immigration court

This article forms part of the Policy Shift Migration and Integration Series, edited by Jennie Cottle (Policy Shift Co-Founder and Adjunct Faculty at Sciences Po) and Anna Piccinni (Associate Fellow Columbia University City Diplomacy Lab, OECD).


The sixth amendment of the US Constitution guarantees that all people, regardless of citizenship status, have the right to counsel to defend themselves against criminal charges. This right does not extend to immigrants facing removal because the US maintains that removal is a civil matter rather than a criminal one. As a result thousands of immigrants, many in detention, are forced to represent themselves in immigration court, regardless of their age. Immigration law is extremely complex and is ever-changing; licensed attorneys have trouble practicing it yet the government expects everyday people to navigate it.


It is famously said that immigration judges listen to “death penalty cases in a traffic court setting.” Consequently, advocacy organizations, judges, attorneys, immigrants, and voters alike are standing up and demanding that the right to counsel be extended to immigrants in removal proceedings. While the right has not yet been granted, the concept of universal representation - a public defender system for the immigration system, is gaining traction. Several local and state actors around the US have launched publicly funded deportation defense programs, and there are currently more than 50 such initiatives nationwide. Each program implements the notion in its own way but overall, the vision is the same: “a future where every person facing deportation is entitled to legal representation regardless of income, race, national origin, or history with the criminal legal system.”

Background

Deportation

While the US government may claim that removing a person from the country is simply a civil administrative procedure, many argue it is a serious punishment that can amount to severe consequences. Deportation results in broken family and communal ties, loss of capital, and perilous situations. According to the Vera Institute of Justice (Vera), between 2005 and 2010, more than 7,000 US citizen children were separated from their parents due to deportation.


Deportation, or removal, proceedings is not a quick and easy process. It may take several months or years and requires a lot of resources, both on the side of the government and the immigrant. If a person is considered to be a risk to the community or of fleeing, the government may order them to await the judge’s decision in detention, further increasing cost. Below is a diagram that helps simplify the process.

Source: Department of Justice, retrieved from Latimore Esq LLC


There is a misconception around the term “deportation” which is that only irregular immigrants, meaning those who entered without proper documentation or remained past authorization, can be deported. It also is assumed that all or most who are processed for deportation are “criminals.” In reality, legal permanent residents are also susceptible to deportation. It is very common for established legal permanent residents (LPR) to be placed in removal proceedings and eventually removed, either due to serious crimes, minor past convictions, or other small technicalities. Moreover, over the past few years, the majority of people, unauthorized and LPRs, removed from the US were not convicted of a crime. In 2021, only 1.9% of new removal proceedings were initiated due to criminal violations while 93.1% were civil infractions (entering the country without inspection).


These misconceptions are due to rhetoric and policies that have framed the issue in poor light. Anti-immigrant sentiment policies have been rampant in the United States since its inception, yet immigrants have experienced increased criminalization in the past half century. Especially starting in the 1990s, the federal government made it much easier to arrest, detain, and deport immigrants; they expanded the list of deportable offenses and created a new category of crime strictly for immigrants: aggravated felony. “Aggravated” sounds violent but the conviction can be as minor as petty theft. According to the American Immigration Council, someone with a minor criminal conviction or aggravated felony may be blocked from obtaining relief. The long list of aggravated felonies makes it easier to classify people as “criminals,” deport them, and decrease public sympathy. Still, most recent data from the Office of Immigration Statistics demonstrates that in 2020 51% of deportations were “non-criminal,” which in the eyes of Homeland Security is no conviction.


The Right to Counsel

As expressed in a blog post by Alex McBride, in the 1960s the “US Supreme Court Supreme Court recognized that, in a society of profoundly unequal resources, adversarial criminal justice, and ignorance of complex law, justice can only prevail if the state provides an indigent defendant with an attorney.” In 1963, the landmark case of Gideon v. Wainwright fortified an individual’s constitutional right to counsel in criminal proceedings. It held that the state must provide an attorney for any defendant who could not afford one, regardless of the level of offense. Gideon is far from perfect but it strived to make the criminal legal system fairer. This factor is lacking in the immigration system.


We can clearly see that the deportation process and its consequences are not as straightforward and prudent as arguing a parking citation. The process is complex, even before taking into account the involvement of a criminal offense, further underlining the importance of the movement to guarantee the right to counsel in immigration court and ensuring it extends to all immigrants facing removal.


Importance of Counsel

Although immigrants are often treated, detained, and labeled as “criminals,” they are not afforded the same rights as people facing criminal convictions. Immigrants and their families are expected to pay for their defense and if not, defend themselves against highly trained and well-resourced government attorneys. This contradicts the core of Gideon which is to establish fairness despite financial resources and individual capacity.


Representation is beneficial for all parties involved, and their role goes beyond providing legal defense. An attorney ensures that immigrant defendants are aware of their rights inside and outside of the court and that these rights are fulfilled. For example, an attorney will make sure to let their clients know they have the right to have an interpreter at court. In addition, their presence is a tremendous help to judges as they aid with courtroom communication, serving essentially as a mediator between the judge and client. It can be extremely complicated and time consuming for a judge to explain the process to a defendant, and especially to children and people with disabilities. Therefore, through facilitation of communication and arduous representation, attorneys streamline a process that currently faces a backlog of 1.6 million cases.


For immigrants who are detained, retaining private counsel is much more difficult as most detention centers are far from city centers and private firms. The issue of remoteness is not only a problem felt by those in detention, immigrants living in non urban communities face difficulties finding and retaining counsel nearby, whether it be private or free. The importance of counsel becomes even starker when we observe the numbers. In the past 22 years, 93% of those in removal proceedings that were granted a form of relief (asylum, Temporary Protective Status, case termination, etc.) had representation. This means that only 7% of immigrants (32,825 people) that had no remedy but to represent themselves were granted relief. Essentially, the current system is set up to deprive poor, rural, detained, mostly immigrants of color, of true due process and justice.


Responses to the issue

Currently, the non-profit sector fills in the gaps of service as best it can by offering free legal services, both to detained and non-detained immigrants. Nevertheless, given limited resources, nonprofits and pro bono attorneys often must be very selective about which cases they take, predetermining certain cases to failure.


Nonprofits and immigrant advocates are not the only ones that understand the importance and benefits of representation. Courts and federal agencies are beginning to recognize the crucial role attorneys play as well. The Executive Office of Immigration Review's (EOIR) noticed that expecting judges to communicate case updates to unaccompanied children as young as two years was preposterous. They therefore issued a model known as Friend of Court (FOC). FOC is “an individual that participates in an immigration court proceeding to facilitate the flow of information in the courtroom (...) and increases pro se respondents’ understanding of the proceedings, as well as their rights and obligations (...) However, [they are not] representative of a party.” Judges have appreciated the model so much that in May of 2022 the EOIR issued a memorandum allowing and encouraging FOC in all types of immigration court proceedings involving unrepresented individuals.


Nevertheless, it should be mentioned that the expansion of FOC benefits the courts more than it does immigrants and advocates. For one, the FOC model relies mostly on the participation of non-profit attorneys who are already overly burdened with cases. Second, while it secures some contact with an attorney and increases understanding, individuals are still required to defend themselves. If one thing is made clear with FOC it is that the attorney can at no point act as the representative of the immigrant nor step in to advocate for them.


With this in mind, the burden of responding to this issue has mainly fallen on a small group of people and organizations with limited capacity to provide services. The government's response has thus far mostly been to improve efficiency in the courtroom through the FOC model, but this model has no visible impact on relief outcomes. Guaranteed representation has the power to impact both.


Universal Representation

The lack of guaranteed state and federal counsel in immigration courts has propelled the creation of public deportation defense programs. Most programs have adapted the method put in place in the criminal legal system and applied it to the immigration system. While public defense is not a new concept, its application to the immigration system is completely innovative. Proponents of these programs advocate for a shift in resources, skills, and mindset to better a system that currently has many flaws.


Universal representation addresses some of the major issues we see today in the immigration system, all while promoting a civil right. They challenge unjust orders, litigate in the name of clients, file applications, and advocate to ensure humane treatment. The universal representation model increases efficiency within the courtroom and has proven to decrease the number of people in detention, either through obtaining lower bonds or through release. As a result of fewer people in detention, advocates of universal representation can push for a shift in funding from detention to legal services. While it is clear that universal representation cannot completely solve all the issues of the immigration legal system, coupled with other solutions it can shift the system in a better direction.


It is important to note that representation does not guarantee relief and the right to remain. Many cases close by the client accepting Voluntary Departure. The client agrees to depart the US without a deportation order, giving them possibility for admissibility 5 years after departure. However, if they enter prior to this they may face harsher penalties such as a permanent bar of admissibility. So,while it is a better outcome than deportation, it is not always the desired outcome. Also, voluntary departure is often the only relief that can be offered to a client, and if refused, an attorney would have to withdraw their representation. Therefore, universal representation guarantees an orientation of rights, support in court, and a fighting chance. For that reason, supporters of this model have stressed the importance of redefining success to mean more than an approval notice. For them, success is ensuring that due process is followed in every case and that every immigrant has an equal chance of fighting their case.


The Case of New York City and Alameda County

New York City was the first to establish universal representation in 2013 in a single immigration court. New York Immigrant Family Unity Project (NYIFUP), which began with $500,000 in local public funding and a few attorneys, now receives roughly 16.6 million dollars in state funding and staffs over 100 employees, including attorneys, paralegals, interpreters, social workers, and administrators. In contrast to most nonprofit service providers, the NYIFUP team takes on any case where the immigrant’s income is below a certain threshold, regardless of its chances to win. Moreover, since its expansion in 2015, the program now ensures that all immigrants incarcerated for criminal charges facing deportation have legal counsel in front of an immigration judge. This not only sends a strong message to the people of New York that a person’s right to counsel does not depend on the strength of their case and eligibility to stay, but also challenges the idea of deservingness. The US criminal and immigration system have a deep rooted belief that certain people deserve help more than others. The criminal legal system divides people along violent and non-violent lines whereas the immigration system divides people into “criminal” and “non-criminal.” The idea of deservingness is that only “good immigrants,” immigrants with impeccable records deserve help. NYIFUP and other public deportation defense programs show that these lines are blurred and that representation is a right not a privilege to be deserved.


New York Immigrant Family Unity Project has achieved several successes over the years, indeed by 2017 they were boasting a 48% success rate. However, the success of the program goes deeper than establishing people’s right to stay in the United States. Its creation has led to the start of a greater conversation around how to improve the inefficiencies and injustices riddled in the immigration system. NYIFUP has served as a model for emerging publicly funded programs nationwide. Their model is transferable and scalable: over 50 communities and 11 states, including New York, have put in place a form of publicly funded deportation defense. What began as a small courthouse initiative has developed into a vision of upscaling all the way to the national level. In the long term, the federal government would be best suited for ensuring this right and service. It could ensure its political longevity, financial security, and most importantly uniformity across state lines.


The model offered, as well as the larger movement, has received overwhelming public support. According to Vera, a majority of people in the United States (66%), regardless of political affiliation, support the idea of federally funded attorneys for people facing deportation. Despite its overwhelming support, the federal government has not put forth a policy proposal to address the issue, most likely due to internal political debates. This is not unique to this issue or topic, political gridlock has become common even when there is public consensus. Federally appointed immigration representation could be considered within a larger immigration reform package, yet no such package has been agreed upon. While the federal government continues to deliberate on proper immigration reform, certain counties and states have had more success passing this type of legislation to solidify the right to counsel.


Another interesting and successful case to look at is Alameda County. It is one of the first places to allow criminal public defenders to represent individuals in immigration court. Alameda County implemented this idea in 2014. They decided to open an Immigration Representation Unit within the Public Defender’s Office. The unit dedicates itself to consultation, defense, and training. They advise criminal public defenders about the immigration consequences of criminal convictions, represent immigrants facing deportation, and advocate for other offices to open immigration units. Since 2014, the Immigration Representation Unit has seen multiple successes and been recognized by a multitude of organizations for its novelty. Their model of applying public deportation defense recently inspired the passing of a law in Cook County that allows for public defenders to practice law in immigration courts. Lack of funding still hinders the new team from securing all cases but, like many programs flourishing in the country, they are one step closer to a more just process.

Shortcomings and Recommendations

Publicly funded deportation defense programs offer a tremendous possibility to make the immigration system a more just one, yet it is crucial that it not have the same shortcomings as that of the criminal legal system. Gideon v Wainwright established the crucial right to counsel but it did not put forth any benchmarks for what constitutes an adequate defense. In many areas in the US, little funding and momentous case loads stand in the way of public defenders putting forth the best defense they can offer. For this not to be the case in the immigration system, any policy to guarantee right to counsel must define the expectations and standards of competent practice.


Equally important and on a similar note is the factor of funding. Without sufficient funding, these programs cannot prevail. Currently, these programs have succeeded and been backed through a combination of funding from private, local, and state actors. Multisource funding allows for program creation and establishment anywhere in the nation but it can lead to financial instability if not completely secured. For this reason, the ultimate goal should be for representation to become a federal right with guaranteed base federal funding.


It is of utmost importance that these programs have enough funding to afford the necessary resources to defend cases, including an adequate and just wage for attorneys. The nature of immigration law is already very harrowing for attorneys and heavy caseloads can further wear them down. Universal representation entails accepting more cases, hence increasing the burden on attorneys. Sarah Deri Oshiro, the managing director of a New York public deportation defense organization, stated that at the start of NYIFUP the team was widely underfunded for the amount of work they had. Years later, she states that their workload is barely manageable even with sufficient funding.


In most current public deportation defense models nationwide, the government collaborates with nonprofit legal service providers or public defender offices to carry out services. If vicarious trauma and burnout are rampant among the immigration bar, it is tenfold among attorneys in the nonprofit sector due to the added financial stress. The emotional and financial weight not only impacts an attorney’s ability to practice but also their willingness to do so. High turnover is so common in immigration nonprofits that scholars are beginning to refer to it as a “war on attrition.” Due to the long life of immigration cases, on average 3 years, high turnover rates often mean clients are reassigned multiple times to new attorneys. This impacts the quality of service and the ability of a client to build rapport with their counsel. Universal representation is beneficial to a client only when counsel is effective and dedicated. Therefore, applying current models of universal representation without addressing this deeper issue in the nonprofit sector is a disservice to both the attorney and the client. Ultimately, the success of public deportation defense programs we see today rely almost entirely on its funding and how well it can retain its employees.


Advocates and participating organizations have addressed this complication by completely reimagining the purpose of their work. For them, it is no longer just about a single case or a single individual but about a much larger fight. The creation of nationwide networks, such as SAFE Network, allows attorneys and organizations to connect to others in the movement, share tips, and give the work a larger meaning. That being said, as the work shifts, it may be prudent in the long run for models to consider new alternatives of providing legal services that do not rely on already overly burdened organizations.


One final point to be made about the structure of the current model and that Vera is strongly pushing for is its collaboration with public defense offices, such as the example of Alameda County. On the one hand, it is beneficial to recruit the services of professionals who have experience working with low-income individuals and have no issue working with individuals with criminal records. Also, the concept of a “one-stop-shop” defense program for immigrants facing both criminal charges and deportation can be beneficial. In fact, it can be a way to ensure holistic practices and that Padilla v. Kentucky is upheld. The 2010 decision held that criminal defense attorneys needed to caution noncitizen clients on the immigration implications that result from a guilty plea.


On the other hand, in the long-term, this method of service provision may deepen the misconception that immigrants are criminals. The immigration system is converging more and more with the criminal legal system in the sense that it relies on it deeply to enforce immigration law, detain immigrants, share information, and create a rhetoric of otherness and fear. The increase in potential crimes through the aforementioned aggravated felony paradoxically validates the public’s image of the “criminal immigrant” since it increases their contact with the criminal legal system. The U.S. immigration legal system already resembles and overlaps enough with the criminal legal system, and thus the use of criminal public defenders in immigration cases could further formalize this link and image. Advocacy groups have been speaking out against the criminalization of immigration for decades. Their efforts and progress of dismantling the intentional criminalization of immigration may be unintendedly reversed through dual public defense models. Furthermore, relying on public defenders to defend immigrants in immigration court, as well as criminal court, burdens them with mastering two complex systems of law. Overall, while we see successful cases of immigration units in public defense offices, the quick solution may in the long-term inadvertently reinforce the criminal-immigration convergence.


Vera and proponents of the dual public defense model stress that these repercussions are not felt if this movement is coupled with other immigrant rights issues. Additionally, education on the topic is paramount to combating misinformation and misperceptions. They argue that educating people on the facts of the issue can actually help disrupt the negative impacts of the convergence (Vera, personal communication, 2022). Finally, it is worth considering that while the image of the “criminal immigrant” is loud in the media and amongst a small minority, the majority of the public does not share this perception. All things considered, the largest obstacle universal representation faces is being seen as a stand alone movement.


Conclusion

In a system where representation inherently determines a person’s chances of remaining in their country of residence, universal representation ensures a more level playing field. The New York Immigrant Family Unity Project and the Alameda County Public Defenders Office demonstrate that local and state resources can be mobilized to provide effective counsel to immigrants in need. They offer new ways of organizing funds and collaborating with the government that have not been seen before in the immigration field. Moreover, they prove, through their different styles, that there is not one way of achieving the goal of universal representation and that models are adaptable to local context. The Vera Institute has created a toolkit so that any local community or state, with any level of resource, can set up a public deportation defense program.


These programs appearing throughout the nation are fueling a larger movement that aims to establish a federal right to representation. As mentioned, this movement alone cannot address the myriad of issues within the immigration system. Instead, it should be viewed as one of the many initiatives put forth in the much greater movement to advance the rights of immigrants and immigrant communities. For example, some local communities have responded to anti-immigrant policies by declaring themselves “sanctuary cities,” meaning they will not comply with ICE detainer requests. Since the early 2000s, undocumented youth have been mobilizing under the slogan “Undocumented and Unafraid,” using new strategies and tactics to advance their mission of obtaining a pathway to citizenship. Together they have organized interstate marches, sit-ins, hunger strikes, and multimedia communications, which was crucial in the issuing of DACA. Advocacy coalitions have successfully shut down detention centers or terminated ICE contracts through campaigns such as Shut Down Berks and Shut Down Glades County Detention Center. Together these movements support each other's advancement and garner the bipartisan support needed to effect change. The success of one fight or initiative helps propel the others forward. For that reason, the movement for universal representation has progressed tremendously in the past few years and if fully achieved its success could ripple throughout and revolutionize the system.


Isabel is a dual degree candidate completing the Masters of Public Policy at Sciences Po Paris and Masters of Public Administration at the London School of Economics, and has academic and professional background in topics pertaining to social work, US immigration law, and criminal justice.


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