Only a tiny percentage of detained immigrants have attorneys, leaving even those with solid cases to stay in the United States to fend for themselves.
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By
Patrick G. Lee
One morning in February, lawyer Marty Rosenbluth set off from his Hillsborough, North Carolina, home to represent two anxious clients in court. He drove about eight hours southwest, spent the night in a hotel and then got up around 6 a.m. to make the final 40-minute push to his destination: a federal immigration court and detention center in the tiny rural Georgia town of
Lumpkin.
During two brief hearings over two days, Rosenbluth said, he convinced an immigration judge to grant both of his new clients more time to assess their legal options to stay in the United States. Then he got in his car and drove the 513 miles back home.
“Without an attorney, it’s almost impossible to win your case in the immigration courts. You don’t even really know what to say or what the standards are,” said Rosenbluth, who works for a private law firm and took on the cases for a fee. “You may have a really, really good case. But you simply can’t package it in a way that the court can understand.”
His clients that day were lucky. Only 6 percent of the men held at the Lumpkin complex — a
2,001-bed detention
center and immigration court — have legal representation, according to a
2015 study in the University of Pennsylvania Law Review. Nationwide, it’s not much better, the study of data from October 2006 to September 2012 found: Just 14 percent of detainees have lawyers.
That percentage is likely to get even smaller under the Trump administration, which has identified
21,000 potential new detention beds to add to the approximately 40,000 currently in use. In January, President Trump signed an
executive order telling the secretary of homeland security, who oversees the Immigration and Customs Enforcement agency, to “immediately” start signing contracts for detention centers and building new ones.
If history is any guide, many of those facilities will end up in places like Lumpkin,
population 2,741. The city’s small downtown has a courthouse, the police department, a couple of restaurants and a Dollar General. There’s no hotel and many of the nearest immigration lawyers are based 140 miles away in Atlanta.
“It’s been a strategic move by ICE to construct detention centers in rural areas,” said Amy Fischer, policy director for RAICES, a San Antonio-based nonprofit that supports on-site legal aid programs at two Texas facilities for detained families. “Even if the money is there, it’s very difficult to set up a pro bono network when you’re geographically three hours away from a big city.”
ICE currently oversees a network of about 200 facilities, jails, processing centers and
former prisons where immigrants can be held, according to a government list from February.
Unlike criminal defendants, most immigrants in deportation proceedings are not entitled to government-appointed lawyers because their cases are deemed civil matters. Far from free legal help and with scant financial resources, the majority of detainees take their chances solo, facing off against federal lawyers before judges
saddled with full dockets of cases. Frequently they must use
interpreters.
An ICE spokesman denied that detention facilities are purposely opened in remote locations to limit attorney access. “Any kind of detention center, due to zoning and other factors, they are typically placed in the outskirts of a downtown area,” said spokesman Bryan Cox. “ICE is very supportive and very accommodating in terms of individuals who wish to have representation and ensuring that they have the adequate ability to do so.” At Lumpkin’s
Stewart Detention Center, for instance, lawyers can schedule hourlong video teleconferences with detainees, Cox said.
But a ProPublica review found that access to free or low-cost legal counsel was limited at many centers. Government-funded orientation
programs, which exist at a few dozen detention locations, typically include self-help workshops, group presentations on the immigration court process, brief one-on-one consultations and pro bono referrals, but they stop short of providing direct legal representation. And a
list of pro bono legal service providers distributed by the courts includes many who don’t take the cases of detainees at all. Those that do can often only take a limited number — perhaps five to 10 cases at a time.
The legal help makes a difference. Across the country, 21 percent of detained immigrants who had lawyers won their deportation cases, the University of Pennsylvania Law Review study found, compared to just 2 percent of detainees without a lawyer. The study also found that 48 percent of detainees who had lawyers were released from detention while their cases were pending, compared to 7 percent of those who lacked lawyers.
Legal counsel can also speed up the process for those detainees with no viable claims to stay in the country, experts said. A discussion with a lawyer might prompt the detainee to cut his losses and opt for voluntary departure, avoiding a pointless legal fight and the taxpayer-funded costs of detention.
Lawmakers in some states, such as
New York and
California, have stepped in to help, pledging taxpayer money toward providing lawyers for immigrants who can’t afford their own. But such help only aids those detainees whose deportation cases are assigned to courts in those areas.
“What brings good results is access to family and access to counsel and access to evidence, and when you’re in a far off location without those things, the likelihood of ICE winning and the person being denied due process increase dramatically,” said Conor Gleason, an immigration attorney at The Bronx Defenders in New York.
Romniel, who asked that his last name not be used for privacy reasons, said he quickly could have lost everything without a lawyer.
A native of the Dominican Republic and a U.S. green card holder, Romniel, 53, was picked up by ICE agents during an early morning raid at his New York home in 2015. He was sent to the
Hudson County Correctional Facility in Kearny, New Jersey.
“It was like a nightmare,” Romniel said in Spanish during an interview. “It’s very important to have a lawyer to defend yourself, because I didn’t know anything about immigration law. I didn’t know what was happening to me.”
Gleason, who was paid by a local government program to assist Romniel, tracked down 17 years of his tax records, compiled 21 letters of support from family and community members, coordinated a psychosocial evaluation by a social worker and submitted research on the harsh treatment of deportees sent back to the Dominican Republic. In court, Gleason argued that Romniel’s positive contributions to society –— his full-time employment as a maintenance and security person, his consistent payment of taxes, his family ties — outweighed the harm of a single drug conviction from several years earlier.
After more than four months in detention, an immigration judge ruled in Romniel’s favor, allowing him to return to his family in New York. In September, he became a naturalized U.S. citizen.
Advocates and lawyers for immigrants worry such happy endings will become even more uncommon as detentions ramp up.
Saba Ahmed, a staff lawyer at the Capital Area Immigrants’ Rights Coalition in Washington, D.C., said a detainee she recently advised, a middle-aged man with a green card, was scooped up and sent to a Maryland detention facility in March because ICE agents wrongly believed he was a convicted robber — making him eligible for deportation.
When Ahmed met the man during a visit to the detention center about two weeks later, she realized that the government had meant to pick up someone else with the same name, and she helped secure his release.
“He didn’t have access to do an online search to prove it wasn’t him,” Ahmed said. “All he could say was, ‘It’s not me.’ You can’t just go on Google. You don’t have smartphones. There’s really no access.”
Immigrants, even those with the
proper papers, can get locked up by ICE for a variety of reasons. Some are detained soon after crossing the border; others come to ICE’s attention after an arrest (whether or not they’re
convicted of a crime). Federal agents have also
swept up undocumented people in the proximity of raids targeting a specific person. Others have
shown up for a scheduled check-in with ICE and are taken into custody instead.
Once in detention, even those with strong cases are at a disadvantage. Phone calls from inside the facilities can be expensive, lawyers said, limiting detainees’ contact with people who can help with their cases, such as community members for letters of support or officials who can send them corroborating records.
Many detention centers have law libraries with
outdated materials. Without updated resources, detainees can’t research the current conditions in their countries of origin, which can be a crucial component of their defense if they fear violence or persecution there, lawyers said.
And even if they don’t speak English, all detainees without lawyers must compile their own legal documents and get them translated into English, a
requirement for all paperwork submitted to immigration courts. Individuals must find translators on their own, attorneys said, and they sometimes rely on fellow detainees who know more English to help fill out forms.
Emory University School of Law adjunct professor Shana Tabak, who works with law students to represent immigrants facing deportation, said she typically puts together asylum packages of at least 200 pages containing documentary evidence, affidavits, testimony and expert opinions. “There’s no way a client who is detained and who does not have an attorney could put together that sort of evidence in order to advocate for him or herself and successfully win an asylum claim,” she said.
Perhaps as a result, 32 percent of detained immigrants with lawyers apply for asylum or other legal protections from deportation, whereas only 3 percent of detainees without lawyers do the same, according to the University of Pennsylvania Law Review study.
Ahmed, who has been working with detainees for 2 1/2 years, said some immigrants don’t realize that their life circumstances may qualify them for legal relief.
One man from El Salvador, she said, initially told her that he’d fled to the United States after gang members threatened to kill him if he didn’t give them money. After a few meetings, the man revealed he’d been thrown out of his family’s home because he was gay and had been repeatedly sexually abused by gang members.
“This is someone who had been persecuted and feared for his life, and would not have been able to avail himself of asylum if someone had not explained, ‘This is how asylum works,’ and then represented him,” Ahmed said.
After about five months in detention, she said, the man won his asylum case last October.
But even when detainees are linked up with attorneys, the geography of the detention system can make representing them
challenging.
Arcenio, who asked that his last name not be used, was picked up in February and sent to
Boone County Jail in Burlington, Kentucky, said Ted Farrell, his Louisville-based lawyer. He had a prior deportation order on his record and said he was fleeing death threats from Guatemalan gang members who opposed his political views. Farrell wanted to make sure that the 41-year-old would get the right kind of interview with the asylum office and that he would have time to prepare him for it over the phone.
But after five days in detention, Farrell said, Arcenio was sent to a facility in
Brazil, Indiana. Farrell made an appointment to talk with him there, but on the day it was scheduled, he was transferred to a facility in Kenosha, Wisconsin. Farrell made a new appointment, but Arcenio was then moved to a different building in the same town. After several days of tracking, Farrell said, he finally got in touch.
Even then, Arcenio’s request for an interview was denied. ICE scheduled him to be deported to Guatemala and sent him to yet another detention facility, this one in Kankakee, Illinois, Farrell said.
After multiple phone calls, Farrell learned that immigration agents had requested the wrong type of interview with the asylum office. ICE acknowledged its mistake and took Arcenio off the manifest for a flight back to Guatemala, Farrell said. Arcenio passed his initial screening in March and is now waiting in detention to make his full case before an immigration judge later this month.
Meanwhile, he is still being held in Kankakee, a four-hour drive from Farrell’s office. They can only speak by phone with 24 hours advance notice, Farrell said, and sometimes they are asked to limit calls to around 15 minutes when there are several people waiting for the phone.
Farrell took on Arcenio’s case for a fee. “If he doesn’t win, I’m not going to go chase him down in Guatemala and make him pay,” Farrell said. “I’m sure there are attorneys out there who just won’t take a detained case or a potential detained case, because of the risk that they won’t ever get paid.”
Most free or low-cost legal help currently goes to detained
mothers and children through such programs as the
CARA Family Detention Pro Bono Project in Texas, immigration lawyers said. The project brings in about a dozen volunteer lawyers, law students and interpreters from around the country to serve one-week stints at the
South Texas Family Residential Center in Dilley, Texas, about 75 miles from San Antonio. The volunteers help mothers who have fled sexual abuse, violence or other conditions in their home countries prepare for initial asylum interviews. They also represent families in bond hearings. A small group of staff rotates through Dilley to provide administrative support.
The program is able to advise nearly all of the families who pass through the detention center, according to Crystal Massey, one of the project’s coordinators. Another legal aid program that provides similar services exists 95 miles away at a
family detention facilityin Karnes City, Texas. Once families are released from either place, they must find their own lawyers to handle the rest of their asylum cases.
Since 2013, New York City has provided lawyers for detained immigrants unable to afford them. This year, the program
expanded to cover detainees with cases in immigration courts throughout New York. The state was the first in the country to guarantee representation for its indigent detained immigrant population, but last month Mayor Bill de Blasio said that the city should not provide legal aid to immigrants with certain criminal
records.
In December, Los Angeles Mayor Eric Garcetti
announced a $10 million fund — half from taxpayer dollars, half from foundations — to support immigrants facing deportation. But a city council committee
voted in March to
excludemost individuals with violent criminal convictions. A statewide effort, which promises $12 million toward legal support,
passed the California Senate last month with a similar exception.
In San Francisco, nonprofit groups have secured initial private funding to take on 180 cases per year on behalf of detained immigrants, said Valerie Zukin, a lawyer with the Bar Association of San Francisco who is helping coordinate the new efforts. Starting in June, the city’s public defender office will
support another three lawyers who will work
exclusively on detained deportation defense cases.
And there is help coming to Lumpkin, too. A $1 million
project led by the Southern Poverty Law Center started hosting volunteer lawyers last month to spend a week at a time representing eligible detainees at their bond hearings. Eventually volunteers will represent detained immigrants throughout their deportation cases, but even that effort will initially focus on detainees with the strongest cases, said Dan Werner, the attorney who is overseeing the program.
As for Rosenbluth, the North Carolina lawyer now lives in Lumpkin full time, save for the occasional weekend visit to his spouse back home. His house in Lumpkin is five minutes from the detention center and the mortgage costs about $95 a month, he said — cheaper than if he stayed for a night at a hotel.
“It takes a certain personality type to be willing to move to the middle of nowhere,” said Rosenbluth, who is currently working on about 15 detained cases. “To be in the courtroom, and reading the judge’s face and reading the trial attorney’s face, it makes all the difference.”
