Immigration advocates say they’re troubled by the slow pace the Justice Department has taken in renewing a program targeted under the Trump administration that helps detainees and others in immigration court.
The concern comes as a May 31 deadline looms for the Department of Justice (DOJ) to renew a contract with nonprofits that help guide immigrants through the immigration court system, including connecting them with pro bono representation.
The Legal Orientation Program was nearly eliminated by the Trump administration, but Congress intervened to maintain its funding.
But now, the nonprofits that work daily with detainees and other migrants say the Biden administration is looking to impose stipulations that advocates fear will continue to hinder the program.
“During the Trump administration, legal access programs in the immigration courts were consistently under attack,” said 21 legal advocacy groups in an open letter first shared with The Hill on Tuesday.
“Four months into the Biden administration, our organizations are concerned that this generally antagonistic approach toward legal access programming and access to legal representation in the immigration courts persists,” they continued.
The letter comes a week after President Biden signed an executive order seeking to expand access to legal representation in the courts, including in the immigration court system, where migrants have no right to access counsel.
In a memo shortly after Biden's order, Attorney General Merrick Garland wrote: “We will explore, among other things, how the Justice Department and partners across federal, state, territorial, and tribal governments can alleviate entrenched disparities in our criminal justice system, address barriers to access in our immigration and civil legal systems, and advance health, economic, and environmental justice efforts."
But the 21 nonprofits, which each receive a subcontract to run the Legal Orientation Program under DOJ’s main agreement with the Vera Institute of Justice, say some of the provisions the Biden administration is seeking could limit assistance for those they say face life-altering consequences in court.
The program, which offers an overview of the legal process to detainees and guardians of unaccompanied minors, has served as an entry point to connections to free legal representation. The groups worry that contract clauses focusing on efficiency and limiting referrals could limit the benefits of the program to migrants.
The current contract would limit attorneys from referring someone for free legal representation within the same organization, creating challenges in rural areas that may only be served by one nonprofit.
More than half of migrants do not have representation in immigration courts.
“The independent provision of legal information by qualified legal services experts is a necessity in order for legal access to be meaningful. People facing deportation proceedings and particularly those in detention have little chance of understanding their options without access to legal information. We are hopeful to reach a resolution to ensure continuity of these vital services,” Vera Institute of Justice said in a statement.
The contract forwarded by DOJ would also keep the same billing structure negotiated under the Trump administration, which moved from a flat fee to requiring organizations to keep track of billable hours. The organizations argue the payment structure leads to inconsistent funding, making it difficult to keep enough staff on hand for the workload.
“It creates a massive administrative burden on our staff where every single attorney and legal assistant is spending hours every week entering data instead of providing direct services and that's all time and money that could be going to helping people and making the program more effective rather than entering this level of detailed data,” said Laura St. John, legal director of the Florence Immigrant & Refugee Rights Project in Arizona.
A DOJ spokesperson declined to comment, citing the ongoing contract negotiations.
Advocates say that until recently, DOJ was also seeking to make lawyers stick to a script when conducting intake questioning with migrants — something they fear will leave lawyers unable to get key information ahead of someone's case or fail to identify forms of relief to which a detainee might be entitled.
“The legal orientation program was never supposed to be an automaton attorney reading a know your rights script. It’s supposed to be a very sort of interactive, flexible program that allows experienced attorney to actually help individuals understand the system they’re navigating and what they actually need to do to defend themselves against deportation and, when possible, have them access full legal representation,” said Heidi Altman, director of policy for the National Immigrant Justice Center, one of the signatories of the letter.
St. John said it was disappointing that the Executive Office for Immigration Review (EOIR), part of the Justice Department, had pushed to include a provision crafted under the Trump administration.
“While it seems that universal intake form is off the table, the fact that the government fought so hard to block providers from asking detailed and nuanced questions to make meaningful and tailored information available is really indicative of what EOIR is trying to do to this program which is cutting at the heart of this program and our ability to help the people that we serve,” she said.
The negotiations come amid broader frustrations by what some advocates see as a slow pace in reforming the aspects of the immigration system under DOJ's control.
Earlier this month, the DOJ hired 17 new immigration court judges who were initially selected under the Trump administration, almost none of whom have made their career representing migrants in court.
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