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Election 2020: The Right to Counsel in Immigration Court Proceedings
Although it feels like it’s never stopped, election season is now officially in full swing. I’ve spent the last three years whinging about our current president’s immigration policies. My feelings are no doubt clear. But where do his challengers stand on important issues like the right to counsel, the travel ban (which is now in version 3.0), legalization, and so on. What follows is the beginning of a periodic look at the Democratic candidates on these and other important issues. Let’s start with the right to counsel.
Our immigration laws are very complex. If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum. If we as practitioners in our own specialized field often cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a pro se respondent to?
The law guarantees an individual facing removal from the United States with the right to counsel. The law does not, however, guarantee that legal counsel be paid for by the government if someone cannot afford it. The data is very clear that having legal counsel is the most decisive factor in determining whether someone will obtain a grant of legal relief before an Immigration Judge. Indeed even Immigration judges say that cases before them are resolved far more expeditiously when people are represented by counsel.
Yet only a small fraction of those who are in removal proceedings are represented by an attorney. My personal opinion is the government should establish a right to legal counsel, paid for by the government when necessary, to all people facing removal. So that’s my opinion; what do the candidates believe?
When he was mayor of New York City, Mike Bloomberg pledged $2 million to provide training for lawyers who wish to represent immigrants in immigration court. Thus far, however, he has not publicly stated whether or not he supports the right to counsel at government expense at a national level. In a piece written in 2017 for his media company, he wrote that “speedier case handling must also make a provision for the adequate legal representation that judges have called for.” He’s right.
In 2019, Senator Amy Klobuchar cosponsored S. 2113, the Stop Cruelty to Migrant Children Act, which would mandate that the Department of Homeland Security (“DHS”) provide access to counsel for all people detained in facilities administered by Immigration & Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”) and Health and Human Services (“HHS”).
In a response to a survey put out by the American Immigration Lawyers Association (“AILA”), Mayor Pete Buttigieg stated that he would “urge Congress to pledge funds and to work with legal service providers and state and local governments to create a system to substantiate this guarantee, building off of the success of programs like the New York Immigrant Family Unity Project.”
In response to the same AILA survey, Senator Bernie Sanders stated the following:
Currently, our immigration adjudication system is so broken that immigrants often do not receive notice of their hearings, notices are received in a language the recipients do not speak, and immigrants are sometimes even marked absent for hearings that did not even physically take place. Navigating the immigration system without legal counsel is next to impossible. To ensure that people can actually access their legal counsel, Bernie will adopt community-based alternatives to detention. When Bernie is in the White House, immigrants will have access to counsel, as well as other supportive services as they wait for their hearings.
His immigration platform, available on his website, goes further; it states that he will “ensure justice and due process for immigrants, including the right to counsel and an end to cash bail, create a $14 billion federal grant program for indigent defense, ensure access to translation and interpretation services throughout every stage of the legal process,” and “end the use of video conferencing for immigration cases.”
Interestingly, to me anyway, former Vice President Joe Biden has no public stated position on access to counsel for those in removal proceedings.
And finally, to round out the discussion, not only does President Trump oppose access to counsel in removal proceedings, his administration’s policies have made simple access to counsel so much more difficult. By way of example, his administration’s Remain in Mexico policy has made it incredibly difficult for asylum seekers to obtain information about legal service providers and, for those who have counsel, to meet with and have access to their counsel.
Providing meaningful access to counsel not only ensures that immigrants are treated fairly and appropriately in removal proceedings, but it will also makes their removal proceedings more efficient. Indeed, if more individuals are represented in removal proceedings, the currently untenable backlogs would be reduced as well.
The landmark case Gideon v. Wainwright required state courts to provide counsel in criminal cases for defendants who could not afford lawyers. Unfortunately, the immigration law, unlike criminal law, does not provide a right to counsel. While immigrant detainees are allowed to hire their own lawyers, more often than not, they cannot afford counsel. Those who cannot are often the most vulnerable in our population, including children, the mentally disabled, victims of sex trafficking, refugees, and even torture survivors. We can do better, and we should provide those who need free representation the most the right to receive it.
 See, e.g., “Access to Counsel in Immigration Court,” American Immigration Counsel, Ingrid Eagly, Esq. and Steven Shafer, Esq., Special Report, September 2016.
 AILA Doc. No. 19093005. (Posted 9/30/19)
 AILA Doc. No. 19093005. (Posted 9/30/19)
The Right to Counsel in Immigration Court Proceedings for Indigent Children
Do you remember the game “Sorry!”? I play it with my 7 year old sometimes. And every once in a while when I pick a card that sends one of his game pieces back to his Start circle, he slaps his forehead and yells, “Are you kidding me?”
The other day, I had the same reaction (albeit to something a lot different). You may have read about this. Jack H. Weil, an assistant chief immigration judge who is actually responsible for training other judges, stated in sworn testimony in a case in which the American Civil Liberties Union (“ACLU”) and other immigrant rights groups are seeking to require the government to provide appointed counsel for indigent children who cannot afford a lawyer in immigration court proceedings, stated:
I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done. … You can do a fair hearing. It’s going to take you a lot of time.
Are you kidding me?
Not surprisingly, afterwards, Judge Weil was quoted as saying that his statements did not “present an accurate assessment of [his] views on this topic,” and the Justice Department then quickly chimed in that “[a]t no time has the Department indicated that 3 and 4 year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily represent the views of [the Executive Office for Immigration Review] or the Department of Justice.”
I have repeatedly said in various forums that our immigration laws are extraordinarily complex. If you’re not an attorney, or if you’re an attorney but don’t practice in the area of immigration, you might be surprised to see the back-and-forth that immigration practitioners themselves engage in on various professional listservs about the meaning of a statute, rule or agency memorandum. If we sometimes cannot understand or come to agreement as to what the Congress has written, or a Court has decided, do we really expect a 3 or 4 year old to?
Our government does not guarantee legal counsel to asylum seekers and other vulnerable populations facing deportation from the United States. In the past two years, more than 112,000 families and unaccompanied children have appeared before Immigration Judges without lawyers. It’s virtually impossible for non-English speaking asylum seekers, especially young (or frankly any) children, to understand or navigate our complex immigration system, let alone make sense of legal terms of art such as “persecution” or being a member of a “particular social group.”
In an attempt to rectify this sorry state of affairs, in February, 2016, Senator Minority Harry Reid introduced S. 2540, the Fair Day in Court for Kids Act of 2016, which mandates that unaccompanied children and vulnerable immigrants receive legal representation. Two weeks later, Representatives Zoe Lofgren, Luis Gutierrez, and Lucille Roybal-Allard introduced the House companion bill, H.R. 4646.
Among other things, the law would require the appointment of counsel for children, families and other vulnerable individuals, and the government would also be required to ensure access to counsel for anyone in detention, including border detention facilities, as well as for families and individuals subject to fast-track asylum screenings conducted in border regions.
Just recently, Senator Patrick Leahy of Vermont questioned Attorney General Loretta Lynch why the Department of Justice does not prohibit immigration proceedings from moving forward until children have representation. Attorney General Lynch responded: “I think we’re looking to find any various ways to support that and we’re looking at various ways to get legal counsel appointed in every situation,” responded Lynch. This is a rather ironic response given that the Department of Justice, the very agency which Attorney General Lynch leads, continues to fight the ACLU’s lawsuit that seeks to require that all such children receive legal representation.
I’ve been in the courtroom for these types of hearings. Children are facing the same charges as adults, and consequently are also being asked the same questions by the Immigration Judge as adults. I can tell you with absolute certainty that most adults, even with court-provided interpreters, do not understand what they’re being asked by the Immigration Judge. The charges range from entering the country illegally to overstaying a visa. The Immigration Judges ask questions that include when and how they arrived in the United States and whether they fear persecution in their home country if they were to return. You would think these are simple questions, right? Far from it.
The Immigration Judge would also be asking if the child wants to leave the country voluntarily or whether the child would rather be deported. Depending on the child’s answer, he or she may be foreclosed from applying for certain forms of immigration relief in the United States, such as political asylum.
And, these hearing typically happen very quickly. Indeed in some courtrooms, the average time for a Master Calendar Hearing has been reported to be about 7 minutes. Imagine trying to make sure a child facing deportation from the United States understands all of his or her rights within 7 minutes (especially if the child is not represented by an attorney).
On the election trail recently, Univision hosts at a CNN debate pressed both Bernie Sanders and Hillary Clinton to make definitive statements that neither would deport children (or immigrants with no criminal record) should they become president. The both did so. That’s a start, at least as far as the Democrats are concerned. But we still need to worry about the Republicans, and of course the real issue of the right to an attorney for an indigent child still needs to be resolved.