In the topsy-turvy world of trying to defend our clients and protect them from deportation, many of the due process safeguards that exist in the criminal justice system simply do not exist for all intents and purposes. It would probably take a weeklong CLE to explain all of this in detail, but, in quick shorthand, people who are caught up in the web of removal proceedings do not have the right to an attorney if they can’t afford one. You are basically guilty until you prove yourself innocent, exercising your “right to remain silent” can be used against you, and there is no discovery as we are used to, even in civil proceedings. When I was fresh and green and right out of law school, I went to the chief counsel’s office, which is our equivalent for the district attorney, and asked to see my client’s file so I could better understand what the charges were. The clerk actually laughed at me and told me to go file a Freedom of Information Act. It is probably a good thing I didn’t ask to see the shuck.
There is no doubt, however, that in the past four years the situation of immigrants and immigrant rights have taken a dramatic downturn. Within his first few days in office, Trump rescinded the Deferred Action for Childhood Arrivals, banned travel from seven majority Muslim countries, effectively ended refugee resettlement, and began dismantling the asylum system. Over the past four years, some of the actions taken by the administration have been very high profile and garnered much attention in the media. Trump separated thousands of children from their parents at the border; implemented a “transit ban,” which forced asylum applicants who had traveled through other countries on their way to seeking safety here to apply in one of those countries first; and required asylum applicants to wait in Mexico for their hearings rather than being able to enter the United States in what were perversely called the “Migrant Protection Protocols.”
Many of the actions taken by the former administration were much more low-profile, but no less damaging. Trump reversed decades of precedent-setting decisions in the immigration courts through a process called “self-referral,” where his various attorney generals took back cases from the Board of Immigration Appeals and issued alternative rulings. Victims of gang and domestic violence in countries where the government was unable to protect victims at best, or complicit at worst, were no longer eligible for protection. The administration also used these self-referrals to redefine what offenses pretermitted individuals from even applying for certain forms of relief.
To give just one example, even if you had lived in the United States for more than 10 years, were married to a U.S. citizen, and had multiple U.S. citizen children, you were barred from applying to stay if you had two or more convictions for driving under the influence even if they had occurred eight or nine years ago. (Even prior to this decision, these cases were notoriously difficult to win. Simply being married to a U.S. citizen and having U.S. citizen children were not enough. You had to prove that if you were deported, it would cause an “exceptional and extremely unusual hardship” to one of them. The fact that your family would be forced into poverty, be on food stamps, probably be homeless, and so on. would not be sufficient because this is the hardship that almost every family would face if their main breadwinner was deported.) It is estimated that over two dozen changes to the way immigration law is adjudicated were made in this way in the past four years.
The administration used a variety of methods to totally alter the immigration landscape. The Immigration Policy Tracking Project (IPTP) documented over 1,000 separate immigration-related changes made by the Trump administration from 2017 to 2021, including changes to essential immigration forms, official rule changes, agency directives, dozens of presidential orders, numerous changes in practices by agencies, over a dozen programs that were terminated entirely, and numerous modifications in the way data was gathered and reported on. While the work of undoing these changes has been made easier by the work of the IPTP and other researchers, there are no doubt hidden landmines everywhere. Even just figuring out what needs to be done will be a Herculean task.
The ABA has called on several occasions for some of the structural reforms that are necessary to truly create a fair and just immigration system, and I will not elaborate on those here. First and foremost, the immigration courts need to become truly independent courts and not under the control of whoever is sitting in the White House. Unless they become Article 1 courts as part of our tripartite system of government, nothing will prevent future Trumps from repeating the abuses of the recent administration.
We are also in desperate need of comprehensive immigration reform. But with a narrow majority in the House and an even slimmer majority in the Senate, that is probably not the best place to focus on immediately. Instead, the administration needs to focus on changes that can be made without congressional action or even with the slim majority that Biden has.
We all learned in our first year of law school, if not before, how defendants in criminal court won the right to an attorney if they couldn’t afford one. In immigration courts, while “respondents,” as we’ll call them, have the right to counsel, they do not have the right to have one at government expense. Out of the almost 200,000 people whose immigration court cases were completed in Fiscal Year 2019, 77 percent did not have legal representation. Immigrants who had attorneys were more than 10 times more likely to establish their right to remain in the United States than those without representation. While ideally “Immigration Gideon” should be a right guaranteed by law, nothing is preventing the administration and Democrats in Congress to use their budgetary authority to provide funding to help guarantee that no one is deported because they can’t afford a lawyer.
Second, even though the immigration courts are considered to be civil, not criminal, far too many immigrants remain in detention for the duration of their proceedings. Sometimes they are held for years. It is beyond the scope of this article to detail the conditions and abuses that occur in immigration detention centers, many of which are run by private for-profit companies. But the use of immigration detention is built on a fallacy. The claim that immigrants need to be locked up to make sure they attend their hearings is belied by the facts. A recent study by the American Immigration Council shows that 96 percent of immigrants in removal proceedings who had attorneys attended every single one of their court hearings. The administration has to review all the 15,000 cases of the approximate people currently in immigration detention and release all those who do not present a clear danger to the community. Ultimately, immigration detention needs to be phased out and hopefully eliminated.
Finally, the Biden administration needs to use the same “self-referral” process to restore the immigration courts to the status-quo-pro-ante state they were based on by decades of hard-fought precedents.
The tasks ahead may be Herculean, but they are hopefully not Sisyphean.