Protecting the right to counsel in immigration court

The Hill (Op-ed)

By Kristie De Peña

July 27, 2016

Protecting the right to counsel in immigration court 

In an increasingly rare gesture of unity, the Senate and House (Senator Patrick Leahy D-VT and Representative Zoe Lofgren D-CA) jointly introduced the bicameral Refugee Protection Act earlier this month. Among its many sweeping improvements for refugees and asylees are smaller — but critical — changes to legal procedure that will help solve problems which have long plagued immigration courts.

Improving the speed and integrity of the process has become urgently necessary. The Department of Justice’s Executive Office for Immigration Review (EOIR) faces the largest caseload in history, and is badly backlogged. Between 2010 and 2016, the caseload has more than doubled.

Currently, most prospective refugees, asylees, and immigrants have no access or right to legal counsel. Affording counsel in certain circumstances, as the proposed legislation empowers the Attorney General to do, will not only increase the odds that justice will be done, but will help immigration cases move more expeditiously through the system.

Granting counsel in immigration cases will help in several ways. It allows overburdened immigration judges to offload tasks, like eliciting critical facts from applicants, to the appointed lawyers. Legal counsel can also expeditiously review copies of relevant documents provided by the Department of Homeland Security—another proposed change to the process—which will help avoid costly delays.

Counsel can also coordinate translators ahead of hearings to translate applicants’ statements, identify the relevant facts, and present them clearly and concisely to the fact-finder. Due to the nature of immigration proceedings, final determinations rely most heavily on facts presented by the applicant. The judge often finds it necessary to ask multiple, similar questions to ensure that he or she thoroughly understands the nature of the claim and does not overlook critical information.  

The delays and confusion in the current system often leave individuals waiting for years to get into the courts, prolonging separation from their families. Individuals stuck in immigration court limbo lack legal status in the United States, which exposes them to potential abuses.

Employers may underpay workers, or subject them to harmful working conditions, knowing that their lack of status leaves them without recourse. Even more dangerously, terrorists or other enemies of the United States may approach frustrated immigrants trapped in status purgatory on the hunch that they might be open to recruitment, but will be too afraid to report these encounters to authorities if they aren’t.

The large number of unaccompanied children in the immigration court system makes the need for reform even more urgent. Between January and June 2016, over 25,000 children (traveling alone) were apprehended at the border. Customs and Border Patrol (CBP) immediately detain apprehended children from noncontiguous countries (like El Salvador, Guatemala, Honduras) and place them in standard removal proceedings.

After a brief discussion with the child, CBP determines whether they qualify for special protections or will face removal; within 72 hours, CBP transfers custody to Office of Refugee Resettlement (ORR) or Dept. of Health and Human Services (HHS) depending on that determination.

In many cases, these children qualify for asylee status, but their age, lack of English speaking skills, and ignorance of the legal process can leave them without a fair chance of successfully applying for legal entry and status.

Compare this to the criminal court system, which generally appoints children a Guardian Ad Litem and an attorney (who is sometimes the same person). These roles require not only fact-finder responsibilities, but  zealous advocacy on behalf of the child. Countless standards govern the acceptable behavior of attorneys, the court, and other involved parties to ensure that the child is adequately protected. Children facing immigration courts  deserve similar protections.

Our immigration system is rife with pressing problems Congress must address, many of which may seem insignificant and tedious. But the bigger problems are often symptomatic of a host of smaller ones. Congress must assert its legislative authority in a good-faith effort to get the details right, showing that it wants to treat people fairly. Otherwise, it becomes not only inevitable, but necessary, for the executive branch to step in and make stopgap repairs to our broken immigration system.

This is far from ideal, as executive overreach through inaction threatens the separation of powers and the integrity of America’s constitutional system. The Refugee Protection Act’s proposal to provide legal counsel to some refugees, asylees, and immigrants is an excellent example of a smart fix to a seemingly small but actually very big problem in American immigration policy.

Passing this bill will put Congress, and our country, in a better position to tackle bigger immigrations issues moving forward.

Kristie De Peña is the immigration policy counsel at the libertarian think tank the Niskanen Center

For more information, go to:  www.beverlyhillsimmigrationlaw.com