Tens of thousands of immigrants with strong ties to their communities are deported every year from the United States just because they cannot afford an attorney. Immigrant advocates nationwide are pushing the Biden administration for decisive action and funding to support universal legal representation efforts to give immigrants a fighting chance to determine their future. Given the number of jurisdictions with high numbers of people in immigration courts that are also governed by Republicans largely uninterested in granting immigrants counsel, federally mandated legal aid could be critical to preventing more large-scale deportations.
Since New York City launched the first pilot program offering legal representation to immigrants in 2014, 50 jurisdictions across 21 states have implemented models of public defenders for immigrants in deportation proceedings. Still, the vast majority of immigrants in deportation proceedings did not have legal representation in 2020. Children and immigrants for whom English is not their first language are often left alone to navigate some of the most complex laws in the U.S. A mere 4% of people without legal representation win their cases and avoid deportation. In stark contrast, 48% of immigrants with legal counsel have successful cases and remain in the U.S.
The costs of deportation
A more equitable system would be one where the federal government mandates universal legal representation in immigration courts, said Ellen Pachnanda, attorney-in-charge of the New York Immigrant Family Unity Project at Brooklyn Defenders Services, one of the three nonprofits operating the universal legal representation program in New York. Doing so would make it the responsibility of the states and localities to provide a public defender, rather than leaving immigrants to obtain representation on their own. Funding sources for immigrants’ counsel vary across jurisdictions, but all of them depend on local governments’ decisions. Federal support is crucial to ensure legal representation initiatives are funded, but with Immigration and Customs Enforcement (ICE) still targeting and detaining people, activists say the Biden administration isn’t prioritizing immigrants’ rights.
“We have clients who are coming from the border, asylum-seekers, who are being detained. We have individuals detained in their communities,” Pachnanda said. “Biden is beginning to signal a return to the Obama administration, which was very cruel towards immigrants.”
Roysán Méndez’s case illustrates the legal vulnerability of immigrants. In December 2019, Chicago police officers approached his car after he arrived from the night shift at the tortilla factory where he worked. They showed him pictures of people he didn’t know and requested to see his documents. Karla Castañón, Méndez’s partner, came out from the house in time to witness his arrest. The police didn’t press criminal charges but sent Méndez to the Kenosha County detention center in Wisconsin. He was set for removal to Mexico, which he left to escape poverty in 2002 when he was 11 years old.
“I felt as if my whole world crumbled to the ground,” said Castañón in Spanish over the phone from her home in Cicero, a Chicago suburb. “I felt that was the end of my family.”
The couple has an eight-year-old son and a four-year-old daughter. Méndez was the main provider, and also supported his mother in the Mexican state of Morelos. After Méndez was taken, Castañón and their children moved in with her aunt while frantically contacting immigration attorneys for Méndez. They asked her for $10,000 to start the case—at least $3,000 upfront. Castañón eventually found a pro-bono lawyer and paid $5,000 in bail for Méndez—an amount she gathered by selling salsas. Their eight-year-old son is still asking why his dad “was sent to jail,” which is for people who “do bad things.” Despite the emotional scars, Castañón is relieved.
“Without the legal aid, he [Méndez] may be in Mexico now,” she said. “We would not have our family.”
Rights and challenges
In January, Cook County, Illinois—the second-most populous county in the U.S., which includes Chicago and its suburbs— announced the establishment of the Immigration Unit to offer public defenders to immigrants in deportation proceedings. The unit will start operating in January 2022. Community efforts also pushed the Illinois House of Representatives to approve a bill to implement representation for individuals in deportation proceedings statewide by July 2022.
Providing universal legal representation for immigrants is a victory for due process and also for advancing racial justice in the U.S., said Eréndira Rendón, vice president of immigration advocacy and defense at The Resurrection Project, a community-based organization that led the effort in Cook County to create the immigration public defenders unit. These initiatives could be especially helpful for underfunded and over-policed Black and brown communities. While the vast majority of individuals removed in Cook County are Latinx Americans, Black people are also deported in disproportionate numbers—they compose 7.2% of the immigrant population but account for 20% of the criminal-based immigration proceedings.
Funding will be contingent on appropriations year after year, making it crucial for officials to work with community-based and immigrant-led organizations who have already engaged in the work to ensure public funding is available, Rendón said. For instance, the city of Chicago has had a public defender program for immigrants since 2017.
“Every year, we remind our alderman [and] our mayor of the importance of funding the program, and we continue to advocate for its increase,” Rendón said.
The social benefits of the programs are clear. Most immigrants in deportation proceedings have deep links to their communities, with an average U.S. residency of 16 years at the start of their cases, according to a 2017 study by the Vera Institute for Justice, a New York organization that supports community efforts to provide deportation defense. In three years of the program, the 400 New Yorkers who gained or maintained work authorization contributed $2.7 million in tax revenue year after year.
Providing universal legal representation would also reduce immigrants’ time in detention and the immigration courts backlog, which exceeds 1.25 million cases. The Vera Institute for Justice says that representation would also downsize the government’s costs for detention and court proceedings.
Ultimately, providing legal counsel to immigrants is a matter of basic principles of justice and democracy, as it recognizes that all individuals deserve fair treatment, due process, and the opportunity for rehabilitation and meaningful participation in society, advocates contend. Criminalization and punishment are already integral to the Immigration and Nationality Act, according to the Public Defenders Coalition for Immigrant Justice, and the right to counsel for all immigrants facing deportation could counter an immigration legal framework that “can only be characterized as draconian and highly punitive,” the coalition argued in a statement released last March after the introduction of the immigration reform bill of the Biden administration.
“This immigration system has done so much harm to so many people living in this country, including myself,” said Edwin Tineo, a former client of the Brooklyn Defender Services, in a press conference earlier this year. “With the new president, we need to make sure that no one goes through what I went through. Not one more person should be forced to suffer in immigration detention for months and years just because of where they were born.”
Access to legal representation depends on location
Advocates stress that federal action is key to establishing legal representation for immigrants nationwide. The federal government currently provides almost $250 million for legal counsel for immigrants who are unaccompanied children and mentally disabled people, according to the 2021 fiscal year budget. However, these programs only fund legal providers in 24 states, leaving a considerable number of immigrants without access to any legal resources.
Legal representation rates for immigrants are especially low in Republican-controlled areas like the South and the Southwest border, and unrepresented immigrants are mainly held in the localities most hostile to immigration and resistant to providing legal counsel. In some instances, according to advocates, immigrants are transferred to these locations after being arrested in jurisdictions with access to public defenders. And those unrepresented often include minors.
“You have thousands and thousands of children facing deportation in our country right now who do not have the right to a lawyer,” said Jeremy McKinney, president-elect of the American Immigration Lawyers Association.
In the recently approved reconciliation budget for the 2022 fiscal year, the House of Representatives included $400 million to expand legal counsel in immigration courts. That assistance can’t come soon enough. As of Aug. 6, ICE held 25,526 individuals in detention, most of whom had no criminal record. That is a stark contrast to the less than 14,000 immigrants detained at the end of March 2021, when many were released from detention at the height of the pandemic.
Advocates and their progressive allies in Congress are pressuring the Biden administration to move faster on immigrants’ rights by widening access to legal aid. In July, 60 House representatives led by Pramila Jayapal sent a letter to Attorney General Merrick Garland encouraging him to expand legal representation for children and mentally disabled people, as well as for “others” in immigration detention and asking that he request appropriate funding from Congress.
Regardless of federal government actions, nonprofit and grassroots organizations continue to fight at the local level for immigrants who have been targeted and can’t afford to wait on Congress to secure their future. For too many, legal representation can make the difference between stability and an uncertain future.
Jefferson—who asked to use only his first name to avoid stigmatization—has been a legal resident since he arrived in the U.S. from Haiti in 2001, when he was seven years old. In 2020, he was charged with a misdemeanor and offered a plea deal to avoid jail time in New York City. Nobody explained to him that having a misdemeanor in his record could lead to his deportation, so ICE officers arrested him outside the probation office.
“They came in unmarked cars. Nothing indicated that they were even with law enforcement,” Jefferson said. “It was almost like a kidnapping.”
He was sent to Orange County jail in New York, which ICE contracts to keep immigrants detained. Another incarcerated person in a similar situation had paid $18,000 to a private attorney, an amount beyond the reach of Jefferson and his family. Without the aid of a public attorney provided by the New York immigration defenders’ program, Jefferson’s deportation would have upended several lives, including those of his mother, sister and brother in New York. When Jefferson was freed from detention in April 2020, his sister had already tried finding a new place and applying for public housing and shelter. His father and aunts in Haiti would have also suffered as he regularly wires them money. And Jefferson would have been sent to a country he barely remembers, where his fate could have been drastically altered. Last August, Haiti was devastated by a hurricane and an earthquake that killed at least 2,200 people and destroyed an estimated 53,000 homes last August. Jefferson was frank about what a lack of legal representation might have ultimately cost him and his family.
“I could have been dead by now,” he said.