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8.1.07

Public Defenders for Immigrants

The debate over immigration tends to focus on how many people, and what kind of people, we should let in (and how we should keep out the rest). But some of the worst injustice occurs in the process by which the existing laws -- however strict or lax they may be -- are applied. Immigration court is an arbitrary, grossly inefficient system even for those people who ultimately get the green card or the deportation that they deserve.

This article gives a nice overview of one of the main sources of unfairness and inefficiency in the immigration system: the lack of a positive right to counsel. There are no public defenders in immigration court -- only a mix of expensive private lawyers and overworked nonprofits and pro bono programs. Well over half of immigrants have to do their cases pro se (on their own behalf, without counsel).

There are no public defenders because immigration is technically a civil matter, not a criminal one. This is a farcical and invidious bit of hairsplitting, as the consequences of being deported are often harsher than a criminal sentence (for example, some Haitians with lawyers have managed to stay on the grounds that Haiti throws deportees into jails where the conditions violate even the US's anemic interpretation of the Convention Against Torture). And many immigrants are held in detention while the government gets around to thinking about processing their case, subjected to the same punitive conditions as convicted carjackers and drug dealers despite having not yet been sentenced to anything.

It would be wrong to frame this simply as people who have a case getting deported due to the lack of a lawyer -- though that is a serious injustice. Also unjust is the situation of people who should (by the laws on the books) be deported, who end up rotting in detention (wasting the court's time, scarce jail beds, and taxpayer money) while they wait for the inevitable. Partly this is due to the inefficiency and incompetence of ICE, which is magnified when there's no lawyer to complain on the immigrant's behalf. And partly this is due to false hope. When the stakes are so high, it's easy for someone with no legal training (and exposed to jailhouse rumors and the assurances of scam artists) to imagine, or insist, that they have a case when they really don't.

The lack of defense lawyers also compromises the integrity of the system. The American judicial system is built on the adversarial model -- one lawyer makes the strongest possible case for the prosecution, one makes the strongest possible case for the defense, and an impartial judge or jury decides which arguments were better. But when the defendant is pro se, the immigration judge is forced to be both impartial judge and partial defense attorney, attempting -- in the short period of time the defendant is in his or her court, and on the basis of the limited facts at hand -- to ensure that the defendant's rights aren't grossly trampled.

Streamlining immigration law so that it's clearer who must go and who can stay would help. So would decreasing the use of de-facto-punitive detention (in favor of things like tracking bracelets). But the bottom line is that the efforts of immigration prosecutors need to be counterbalanced by expanding the public defender system to give a substantive right to counsel to all immigrants.

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