The American criminal legal system operates based on two key assumptions: that no one shall be deprived of their right to due process and that criminal defendants possess certain rights.
These rights include a public trial without unnecessary delay, the right to counsel, as well as an impartial jury, and lastly, the right to know the accuser and her charges and evidence. These guarantees are protected by the 5th and 6th Amendments. Even with these rights protected by law, history shows the legal system is flawed and many of these “rights” are not truly or consistently in effect.
Immigration courts are one arena in which these flaws become especially evident. In my last article, I explored the history of entry into the United States. Central to this process is the criminalization of immigration in the United States. Asylees, refugees, and migrants are detained in private prisons and subject to deportation at any minute.
Despite their status as criminals, even being housed in the same facilities as criminals, migrants are not guaranteed counsel, face a growing backlog of cases, and experience a courtroom that is far from impartial. This is all because immigration falls under litigation of the civil courts and deportation is deemed a “civil” penalty. Let’s look at the paradox of assigning criminal status to an already vulnerable group without protecting the rights of the accused in the immigration legal system.
Right to Counsel for Migrants
According to a 2016 American Immigration Council study, out of 1.2 million deportation cases, only 37 percent of all immigrants attend court proceedings with a lawyer. Unlike criminal court, immigration court does not appoint the equivalent of a public defender for migrants. Access to a lawyer during deportation hearings contributes strongly to the outcomes of these immigration cases.
Firstly, immigrants with representation were four times more likely to be released from detention. Additionally, detained immigrants with counsel were 11 times more likely to seek asylum status.
In other words, 32 percent of detained immigrants chose to seek relief if they had counsel, yet only 3 percent of detained immigrants chose to seek relief if they did not have counsel. Immigrants who were never detained were five times more likely to seek relief with counsel, which translates to roughly 78 percent seeking relief with an attorney versus 15 percent who sought relief without an attorney.
The only group of migrants that are federally appointed counsel are immigrants with mental disabilities, leaving the rest to argue and defend their own cases, including toddlers as young as three years old. Often, this means immigrants argue their cases while facing a language barrier, a limited understanding of the American legal system, and the pressure of facing a courtroom full of U.S. Immigration and Customs Enforcement officers and other government officials.
Lastly, access to an attorney heavily influences the likelihood of success in deportation trials. Among detained immigrants, access to counsel made acquisition of relief two times more likely, and among non-detained immigrants, access to counsel made them five times more likely to obtain relief. For unaccompanied children, there is an even larger disparity, where 73 percent of children with counsel were allowed to remain in the U.S. in comparison to the 15 percent of unrepresented children who were allowed to stay.
Apart from the ability to pay for lawyers, immigrants face other difficulties that create a barrier to counsel. Immigrants are confined and therefore cannot travel to an attorney’s office; thus, they are restricted to telephone calls that are not readily available to communicate with counsel.
Additionally, unlike criminal proceedings, where defendants stand trial in the same district where the offense occurred, noncitizens are subject to transfer to detention centers that may be located a great distance from their residence or the place where they were apprehended. As a result, migrants may be far-removed from lawyers and the evidence needed to support their cases. Access to counsel not only allows hearings to become more purposeful, but it also makes them more efficient, and could improve the growing backlog in immigration courts.
In the Courtroom: What Would Fair Immigration Courts Look Like?
Immigrants who have been detained can be released on a similar basis to criminal proceedings, where a system of parole and bond determines their detention status. Specifically for asylum seekers, migrants must establish a “credible fear of persecution or torture” in their country of origin for a hearing before an immigration judge. If asylum seekers entered the United States at an official entry point they are eligible to be released on parole, whereas asylum seekers who entered between official entry points are eligible to be released on bond.
In order to be released on parole, immigrants must be able to establish their identity and demonstrate that they are not a “flight or security risk.” If immigrants are being released on bond, usually ICE or an immigration judge conducts a “risk classification assessment.” This process is meant to assess aspects of the individuals like their community or family ties, prior court appearances, manner of entry and length of time in the United States, whether they are a danger to the community, and how likely the individual is to appear for their court hearings.
Interestingly, immigrants are shown to appear for their court hearings at a high rate. In fact, researchers at Syracuse University found in December 2017 that 97 percent of represented mothers complied with their immigration court hearing obligations three years later. More broadly, 86 percent of adults released from detention on bond complied with their court appearance obligations in fiscal year 2018 and another 77 percent of people released from detention on bond or parole appeared for their immigration court hearings.
In the case that an asylum seeker is unable to afford the bond set by either the ICE officer or the immigration judge, they may request reconsideration through a bond hearing. Immigration judges can either impose a monetary amount, with the minimum being $1,500, or a non-monetary condition, such as an electronic monitoring device.
Yet, in fiscal year 2018, the median bond set during the first 8 months was set at $7,500 and in at least five ICE field office districts across the nation, ICE has ignored its own parole guidelines. Often, migrants have been in detention for months or even years, depending on their appeals process, and these costs are near impossible for migrants to fulfill.
Since 2017, ICE has denied parole to an average of 96 percent of arriving asylum seekers; the consequences of which are life-changing. Why? The decision cannot be appealed to a judge if it is made by ICE—not even to an immigration judge that is overseeing an individual’s immigration case.
Along with the lack of counsel, high bond, and sporadic parole denial, bias is yet another difficulty immigrants face in court. As ICE has become both the judge and the jailer, migrants rights are overlooked throughout the entire process. Despite the criminalization of immigration, the status of immigration as a civil proceeding seems to be a way for the American government to circumvent the 5th and 6th Amendments and thus refuse a fair trial for migrants.
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