Next step for immigration reform: Give detained migrants legal counsel

Congress is off to an optimistic though rancorous start on comprehensive immigration reform. Advocates across the political spectrum recognize the need to address the arcane and often incomprehensible set of rules that govern legal and illegal immigration in the United States. We must also continue to honor our treasured commitment to refugee protection.

But a crucial issue that cries out for action is the need to ensure that any person detained in the context of immigration enforcement must have access to legal counsel. America cannot continue to propound the rule of law abroad while denying upward of 400,000 individuals (the number deported in 2012) the opportunity to be meaningfully informed of legal charges against them and of their options to steer through the legal maze.

Due to Supreme Court precedent from the 1880s that arose in the context of viral anti-Chinese sentiment, it has been accepted doctrine that an immigration removal proceeding is civil rather than criminal in nature. That means only limited access to counsel.

Congress has since determined that individuals in removal proceedings are allowed representation by counsel, but not at the expense of the government. That possibility creates the opening to rectify this injustice. Congress should change the law to provide access to counsel at government expense if necessary for those in detention.

Under the present scheme even detained children and the mentally disabled are not provided with counsel, except for the scarce non-profit resources and occasional attorney from an immigration project who may be able to step in. But a handful of such lawyers cannot provide counsel to hundreds of thousands of detained individuals. Victims of sex trafficking, genuine refugees, and torture survivors are among those held without possibility of ever finding legal counsel.

Those who are apprehended and detained during the course of removal hearings are often shipped thousands of miles away from families, doctors, and friends and warehoused in remote private facilities in the desert such as the Eloy and Florence detention centers in Arizona. A migrant ripped from her community in New York is likely to end up in Florida.

Government statistics show that only about 17 percent of people detained on charges of deportation ever have the benefit of counsel. The cost of such detention averages $40,000 annually for one individual. Most often the detained have no way of understanding the charges against them and whether there is any meaningful “relief” from deportation for which they may be eligible.

Without counsel they are certainly hindered in gathering documents, evidence, and witnesses who could appear in court and demonstrate to a judge how they qualify for asylum or legal residency and why they should be allowed to remain in the United States. Several stories in recent years tell of deportations of US citizens who didn’t have the wherewithal or understanding of the system in order to convince a judge that they were indeed US citizens. These stories attest to the gravity of the dilemma.

When I was an immigration judge in San Francisco from 1997 to 2004, I presided over the detention calendar. I saw scores of immigration detainees who had the potential to win their immigration hearing. But they threw up their hands and accepted deportation, after months-long and often arbitrary detention, because they had no prospects of ever finding counsel to assist them.

A professionally trained corps of public immigration defenders – authorized by Congress through immigration reform – could fill the need, usually at great savings to the government.

Rather than over broadly detaining upward of 400,000 migrants a year (the current administration has each year detained more migrants than ever before) at an annual price tag of $2 billion, migrants can largely be released under “alternative terms of detention” such as ankle bracelets and home monitoring at 20 percent of the cost, according to a 2012 study by the National Immigration Forum. That savings can be reallocated to pay for attorneys to represent detained migrants.

The Supreme Court held that the US is not required to provide counsel in civil deportation hearings at government expense. But now, more than 100 years later in a world of more enlightened and pragmatic thinking, Congress can surely act to make sure that the US immigration procedure conforms with American values and due process.

If an individual has no chance of fighting a charge of deportation, counsel can break the bad news to respondents so that they don’t waste months or even years of their lives, and heaps of taxpayer money, floundering around in a system that is difficult even for experienced attorneys to understand. If there is an avenue of relief, appointed counsel can greatly speed up the process to the benefit of all government agencies involved.

It is un-American to detain someone in a remote facility with no realistic means of consulting with family or legal counsel for months or years and then drop-kick them across the border. Multiply such an injustice by the hundreds of thousands and you have today’s state of affairs with US immigration detention. Future generations will look back with disbelief on such a callous, inhumane travesty of justice. We can fix it this year.

Paul Grussendorf is a former immigration judge and recent author of the book, “My Trials: Inside America’s Deportation Factories.”