You may be stunned to learn that the vast majority of people facing deportation from the United States in immigration court don’t have a lawyer. There’s also no such thing as a public defender system in federal immigration cases.
In fact, one senior immigration judge recently claimed that children as young as three or four can represent themselves against trained federal immigration prosecutors in his court.
The processes of immigration enforcement and the lack of legal representation is a shocking reversal of the principles of fairness, justice and the rule of law that we are brought up to believe are the foundations of our democracy. New York has a chance to lead the way in restoring some justice to the unjust immigration system. The Access to Representation Act would provide people in immigration proceedings who are at risk of deportation with the lawyers they need to have a fair shot.
The immigration laws under which people are detained and deported are civil, not criminal. Although there are limited criminal infractions related to specific ways someone may have entered the country, simply being in the United States without documentation is not a crime. And yet, the penalties for that infraction often mirror the punishments the criminal system exacts. At least in the criminal system, unlike the immigration system, the defendant is guaranteed an attorney.
The unchecked power that the federal government wields over immigration is vast. The federal government can detain people indefinitely, with extremely limited contact with the world outside.
In some circumstances, the people held in immigration detention may never be brought before a judge to determine whether it is lawful for them to remain detained. Increasingly, it is not unusual to hear that U.S. citizens are caught up in the immigration enforcement dragnet, and are only able to escape with the help of an immigration attorney who knows their way around the maze of laws and procedures.
For people who fled persecution in their home country, deportation can be equivalent to a death sentence. Immigration enforcement leads to parents being separated from their children, sometimes permanently. People may lose their employment and their families – who may include U.S. citizens and green card holders – bear the burden of the lost income. The immigration enforcement system is rife with disproportionately severe consequences, which are imposed for a civil violation that is about as severe as violating a speed limit.
This month marks the 60 year anniversary of the U.S. Supreme Court’s landmark ruling in Gideon v. Wainwright, which requires states to provide attorneys to anyone facing felony criminal charges who isn’t able to afford a private lawyer. There is no reason that immigration proceedings should be any different.
Legal representation makes an enormous difference in the success rates of immigration cases. A 2011 New York Immigrant Representation Study shows that non-detained individuals without attorneys succeed only 13% of the time – a number that shrinks to 3% if they are detained. It’s not that they don’t have a claim for status, it’s that they don’t have someone to translate their experience into an argument that an immigration court will recognize. American immigration law is complicated and sometimes incomprehensible. In the decade since the study was published, the immigration system has become even more complex and the penalties more severe. Numerous Trump-era policies remain active, despite the Biden Administration’s promises to repeal them.
If New York is serious about its commitment to support and protect the immigrant families that drive its cultural and economic engines, the time to act is now. We must pass the Access to Representation Act. Our futures, and the futures of our neighbors impacted by these unjust regimes, can’t afford to wait.
Sarah Rogerson is a professor at Albany Law School, where she serves as director of The Justice Center and faculty director of the Immigration Law Clinic.