Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.
His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.
Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”
But Siagha’s access to a lawyer in immigration court is the exception.
There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.
But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.
The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.
According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.
So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)
Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.
As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.
The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.
From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.
But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.
This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”
I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.
In theory, there are two parts to an immigration court case. The prosecution (ICE attorneys) has to show that an immigrant is removable — that he either has no legal status in the US or that he’s done something that allows the government to strip his legal status from him — and that he doesn’t qualify for any form of “immigration relief,” which can mean formal legal status or another form of protection from deportation.
But without a lawyer, good luck figuring out what any of those forms of relief even mean — much less whether you qualify for them.
“The idea that somebody who is not trained in the law, who may or may not be trained in English, would have the capacity to assess whether they might be eligible for asylum, or withholding of removal, or protection under the Convention Against Torture, or the Violence Against Women Act, or Special Immigrant Juvenile Status—” Markovitz breaks off, having made his point. “There is virtually no layperson who would have the skills to make those assessments on their own.”
Even if the cases can be appealed, they may not really be reviewable. The Department of Justice has a board that’s supposed to consider immigration appeals, though since the Bush administration it’s often issued summary judgments rather than full reviews. Another appeal takes the case to the federal circuit court for that region — which can’t rehear the case, and so has to rely on the findings in the original court proceeding.
A lot of federal judges are deeply concerned about the immigration court system, to say the least. In 2007, Judge Robert Katzmann of the Second Circuit Court of Appeals — which at the time was getting about 2,000 immigration appeals per year — delivered a lecture explaining that without effective counsel in immigration court, he and his judges weren’t getting a legal record they could rule on. “It was distorting the development of the doctrine,” Markowitz explains.
The biggest problem was representation for detainees who couldn’t afford lawyers. So New York, with some funding from Vera, stepped in: Starting in 2013, every client at the Varick Street immigration court had access to an NYIFUP attorney.
When immigrants have time to build cases, they can actually qualify for relief
Omar Siagha’s lawyer, Andrea Saenz, figured out quickly that Siagha qualified for cancellation of removal: He had been in the US for more than seven years, and being a green card holder meant his single misdemeanor wasn’t enough to disqualify him from relief. But it would still be up to the immigration judge to actually give it to him — and so Saenz and Siagha had to persuade the judge that Siagha’s case was so compelling, and his family’s need was so great, that he was worth an exercise of favorable discretion.
“Get all the records, talk to his family, get all the dates from his original visa,” Saenz recounts. Provide evidence of his life, his close relationship with his daughter (now 8), his efforts to help his elderly mother. Document his medical history: his severe brain injury, the medications he had to take while in detention. “Get every document from every year of your life,” Saenz says, “and show the judge that you deserve it.”
It took months, but they were finally able to present what Saenz describes as “a foot-tall stack of paper put in front of us” to the judge. The courtroom was packed (the local activist group Make the Road New York had taken up Siagha’s case). And he won.
“You feel so small in court, with all the things going on you don’t really understand,” says Siagha now. “It felt a little more strength when you see people there for you, to help you, because they know that you’re not going to mess up.”
The expertise to figure out what relief an immigrant might qualify for, and the time to pull together the strongest case, is the point of guaranteed counsel. And it’s working in New York a staggering amount of the time.
Without representation, only 4 percent of immigrants had been able to win their cases at Varick. Of the cases that NYIFUP closed during its first three years, it won 24 percent of the time. And that number, as Markowitz points out, is deeply misleading, because the cases that succeed often take the longest to finish (and were therefore less likely to finish before the Vera study’s end date in June 2016).
When Vera researchers built a model of what made an immigrant most likely to prevail in court — either because he got relief or because the government essentially dropped its case against him — and then ran the pending cases through that model, they found that 77 percent of the pending cases were likely successes. (Markowitz confirms, anecdotally, that the results over the year since the study stopped recording data seem about as successful as they expected.)
If that projection is correct, NYIFUP cases result in immigrant victories 48 percent of the time. As Oren Root, director of the Vera Institute’s Center for Immigration and Justice, puts it, that means that of every 12 immigrants who are winning at Varick Street right now, 11 would have been deported without a lawyer.
That finding challenges a widely held assumption about immigration court: that most immigrants who go through it don’t qualify for the types of protection that Congress has laid out for particularly compelling cases. The Vera finding implies that, in fact, many immigrants do deserve relief as Congress and the executive branch have established it — but that hundreds of thousands of them have been deported without getting the chance to pursue those claims.
Taking representation national
Elizabeth C. Brown, a member of the Columbus City Council, found herself with a problem many local government officials have confronted in the Trump era. The city’s immigrant community was mired in fear and uncertainty over the president’s rhetoric and increased ICE activity. And city officials couldn’t actually tell them it was okay, because city officials couldn’t prevent deportations — to the contrary, ICE hyped raids in cities it considered “sanctuaries.”
“I am a local policymaker. I can’t actually change federal immigration law,” Brown says. “We were left to consider: what are the things that we can do to really help immigrant and refugee communities here in Columbus feel safer, feel more secure, feel like they’re truly able to thrive?”
Her research led her to the New York program — conveniently, at the same time the Vera Institute was offering grants to other cities who wanted to start funding immigrant representation. Columbus was one of the cities selected. So were Atlanta; Austin; Baltimore; Chicago; Dane County, Wisconsin; the city of Oakland and Alameda County in California; Prince George’s County, Maryland; Sacramento; and Santa Ana, California — 12 cities and counties (plus New York) in what Vera is calling the Safe Cities Network.
Those cities cover millions of immigrants: both unauthorized immigrants and legal immigrants who are at risk of losing their status. Not all of those immigrants will get detained or find themselves in need of lawyers. But the program’s supporters hope they’ll be reassured anyway: “I think part of the feeling of fear” in immigrant communities, Brown says, “is tied to the hopelessness of defense in court proceedings.”
If New York is any indication, the effects of legal representation will end up trickling down even to immigrants in cities that aren’t providing free lawyers — by creating precedents in federal court that are informed by what’s actually going on in immigration court.
In the Second Circuit, NYIFUP advocates have won rulings that require all immigrants to be eligible for bond after a certain amount of time in detention — and that require the government to consider an immigrant’s ability to pay when setting bond. They’ve appealed and won cases that made small violations of the Controlled Substances Act an automatically deportable offense.
A more just immigration court might not be a more efficient one. And Trump and Jeff Sessions are prizing efficiency above all.
This is, according to Peter Markowitz and Judge Katzmann, exactly how the judicial system is supposed to work. “We have a functioning justice system for the first time ever in any immigration court in the country,” Katzmann says of New York.
The federal government does not agree. In a speech to immigration judges last month, Jeff Sessions attacked “dirty immigration lawyers” who dragged out cases, and warned that the immigration court backlog was unacceptable. Rumors persist that Sessions is considering setting “performance metrics” that would evaluate immigration judges based on how many cases they completed.
The quickest way to complete a case is to get the immigrant to agree to deportation; the more immigrants seek relief, the longer cases are going to go. And NYIFUP’s data shows that the Varick Street courthouse really is less efficient.
To NYIFUP lawyers and many judges, that’s not a problem: They don’t want to deport people who are legally eligible for protection, even if that’s more “efficient” than giving them a chance in court. They see efforts to speed up the court process for its own sake as “undermining due process.” For immigration hawks, though, “due process” has become a smokescreen for dragging out cases as long as possible, in hopes that the government will give up.
The Trump administration has already directed ICE prosecutors, in New York and everywhere else, to stop closing immigration court cases — to start fighting the hardest-to-win cases every bit as hard as every other case. In the short term, this will make immigration court cases longer. Ultimately, the theory is, it will start convincing immigrants they don’t have any options, and taking the deportation option.
If the administration starts pressuring judges to move cases through more quickly, Safe Cities Network members insist that immigrants will still be in better shape if they have guaranteed access to lawyers. Without representation, Markowitz points out, “you would have those same pressures, and you would have even fewer chances to prevail.”
That could make life even tougher for immigrants who live in cities that aren’t funding lawyers in immigration court. But it could — if the programs in Columbus and elsewhere take off — persuade more cities that the best way to defend immigrants against Trump is to send someone to represent them in court.
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