The rights to due process and judicial review are fundamental to the democratic tradition in the United States. The purpose of the due process clause is to ensure that the government does not act arbitrarily, and that any person facing a denial of life, liberty, or property is given a fair trial and the right to appeal the decision. Few Americans are aware that these Constitutional protections are not universal: in many cases they do not apply to non-citizens. People who are not U.S. citizens can be arrested without a warrant, detained without a bond hearing, and deported without legal representation. The reason for this is that immigration removal proceedings – the process through which individuals are deported – are civil, not criminal, proceedings.
The National Lawyers Guild has recently issued a report, titled: “Fundamental Fairness: A Report on the Due Process Crisis in New York City Immigration Courts” which highlights a variety of ways that people facing deportation are not provided with due process in immigration courts. The report is drawn from 414 summaries of immigration hearings law students observed in New York City. One of the primary findings of this report is that inadequate access to legal counsel is rampant in New York City immigration courts, and that this inadequacy has serious consequences.
The authors note that over half of the people facing deportation had some contact with the criminal justice system prior to their immigration proceedings. Many were arrested for minor offenses and then handed over to the immigration system. They note one case where a legal permanent resident whose parents and child are U.S. citizens was ordered deported after living in the United States for 36 years because of drug possession. Nearly all (90%) of the deportation proceedings they witnessed involved people who had lived in the United States for at least ten years. Nearly a third had lived in the United States for twenty years.
Despite these strong connections to the United States, many of these people had been detained and were ordered deported, in part due to inadequate translation services and legal representation. The report notes severe problems with professionalism among interpreters, many of whom expressed anti-immigrant views in the courtroom. In addition, 71% of the hearings involved people who were detained while awaiting their deportation hearing. The average time the people in the hearings had been in detention was 11 months; some had been in immigration detention for up to five years.
Immigrants facing deportation can be released on bond. However, individuals with criminal convictions may not be eligible for bond. And, people need legal representation to avoid having their bonds set too high. This report documents many cases where the lack of legal representation meant that people were given bonds of $10,000, which they could not afford. Of the 57 bond hearings the observers attended, there were nine where attorneys were not prepared or not present. In one of these cases, the Immigration Judge set the bond at $25,000.
The inadequate representation by attorneys is shocking in this report. I have spoken with many deportees who complained that they spent thousands of dollars on lawyers to no avail. It is hard for me to be sure that the people I spoke with fully understood the agreements they had with their lawyers, and the extent to which their lawyers outright swindled them. This report makes it clear that adequate legal representation is a big problem. Nearly one out of five respondents had no legal representation at all, leaving them to navigate the morass which is immigration law themselves. Even those who had lawyers did not always do well. There were 24 cases where the lawyer did not show up; 44 cases where the defense attorney either did not file documents or filed the wrong documents; and many cases where the attorney was clearly unprepared.
In a telling instance, the report mentions a case where an immigration judge indicated that he “would have been willing to cancel a removal but the respondent’s attorney failed to produce any documentation or witnesses to support such a decision.” In light of the fact that deportation can complete devastate people’s lives and the families they leave behind, this is abhorrent.
This excellent report sheds further light on the importance of restoring due process protections to the immigration courts. Deportation can have serious consequences and it is unconscionable that people face deportation without adequate access to legal representation.
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