The right to legal counsel is a benchmark of the U.S. Constitution. But try telling that to this administration.
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It’s an incredibly hard time to be an immigrant in America. DREAMers remain uncertain of their fate, particularly because the just-passed omnibus spending bill still has no DACA fix. Families are being torn apart by deportation proceedings.
In the past, immigrants might have been able to look to the courts for some level of relief and protection, but that protection is lessening by the day because immigration proceedings are civil, not criminal—even though we treat immigrants like criminals anyway.
Protections for civil proceedings have always been threadbare. You can be facing eviction, about to lose your children, or be a repeat victim of domestic violence and need an order of protection against your abuser. But if you are poor, you’ll do all those things without a lawyer.
In the immigration arena, a federal appellate court—the second-highest court in the land—just handed down an exceptionally callous decision, and the United States Supreme Court just did the same.
Late in January, the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, held that children facing deportation have no right to a government lawyer. It’s a stunning and sad and unprecedented decision.
In C.J.L.G v. Sessions (the plaintiff is referred to only by his initials because he is a minor), C..L.G and his mother left Honduras after he received death threats over his refusal to join the Mara (also known as MS-13) gang. After he and his mother were threatened at gunpoint by gang members, they fled to America, arriving in 2014 when C.J.L.G. was 13 years old. That, of course, is harrowing enough, but that was really only the beginning for C.J.L.G. and his mother.
The immigration court told C.J.L.G.’s mother that her son was entitled to an attorney if she could afford one. Unsurprisingly, she couldn’t. They then told her she could represent her son.
Reading about those proceedings is awful. She was forced to try to figure out how to properly make the case that her son needed asylum and faced harm if he were to return to Honduras. But asylum is a tricky thing to claim. You need to show an objectively reasonable fear that you’ll face the same threats and persecution if you’re sent back. You need to show that your government isn’t doing anything to stop the threats. You need to prove that you’re a member of a social group—based on things like your race, your religion, or your political opinions—that faces particular threats. None of this can be done by a scared mom with limited English skills and no understanding whatsoever of the Byzantine workings of the American immigration system. And certainly none of it can be done by a 13-year-old boy.
The Ninth Circuit Court apparently didn’t care about any of that. They acknowledged that immigrant minors can have a lawyer, but they just can’t have one at the expense of the government. Their explanation? The immigration system is already overburdened and it would cost too much:
Mandating free court-appointed counsel could further strain an already overextended immigration system[…] And government attorneys would need to expend additional resources communicating with opposing counsel, filing responses to motions, and preparing what would likely be a longer administrative record—all of which come at considerable expense.
This argument is true of all court-appointed counsel, of course—it adds time and money to the proceedings. But we do that because we believe in the importance of due process and protection. Telling someone that they can represent themselves is no process and no protection at all.
Just a few weeks later, the United States Supreme Court issued an equally awful decision. Theirs wasn’t about representation as such, but it is about process. In Jennings v. Rodriguez, the Court said that immigrants who are waiting to see if they will be deported don’t have a right to a bond hearing. What does that mean? Even immigrants legally in this country—people who are waiting to see if they will be deported, not people who have already been set for deportation—can be held indefinitely without even a chance for a bail hearing.
The person at the heart of the case, Alejandro Rodriguez, sat in a detention facility for three years while the United States decided whether they should deport him over his brutal crimes of … teenage joyriding and misdemeanor drug possession. “Detention facility” makes it sound as if a person isn’t like rotting in jail—but let’s be clear: Detention centers look like prisons and people are treated terribly. One recent report from the West Texas Detention Facility alleges that the Somali men detained there were called “monkeys, animals, and terrorists” by the guards. They get pepper-sprayed. They get put in solitary confinement. They are denied medical care. And it isn’t unusual to be left in the facility for over a year.
Now, many people have no chance at being bonded or bailed out. They can be kept indefinitely with no recourse. It’s unthinkable that there has been such a breakdown in values and process in America that we now believe this to be acceptable.
Given what appears to be a complete breakdown on any further help for DREAMers—individuals who were brought here as as children and remain technically undocumented—the immigration system may very well soon be swollen with thousands more potential deportees. In just the past few days, Trump has tweeted that he will no longer do a DACA deal and that it is the Democrats’ fault that DACA is dead. (Never mind that Trump has rejected several DACA deals).
The DOJ has also imposed quotas on immigration judges. They will now be expected to process 700 cases per year, or roughly three per day. Immigration judges may need to act so swiftly that they would hear an asylum-seeker’s case and decide the very same day whether or not to deport someone. That isn’t justice—it’s an assembly line.
Outside of immigration, that breakdown has been a long time coming, and it is being hastened along by the inveterate callousness of the Trump administration’s visceral hatred of the poor. Here’s the brutal truth about the justice system in America: Long before Donald Trump moved into the White House, we disavowed any real commitment to ensuring that justice is actually served.
Most discussions of the justice system focus on criminal justice and what sorts of protections and procedures are in place for people accused of a crime. But that’s an incredibly narrow way to think about how people intersect with the justice system. You can run up against the courts, against something much more powerful than you, in civil settings all the time. People are denied disability or Social Security payments. People experience domestic violence. Veterans get denied discharge-related benefits. Landlords refuse to make repairs.
All of these things can profoundly impact your life. If you’re the victim of domestic violence, you need assistance in advocating for yourself and ensuring that your attacker is barred from coming near you. If you face a custody battle with an abusive ex, you need help to make sure your children stay safe. If your living space is dangerous, you need help to fight your landlord. If you can’t do those things, you can lose your kids, your place to live, and even your life. Yet, those things are all civil actions—you won’t face jail
Which is why, in theory, we believe in providing low-income people with free or low-cost legal services in those arenas. Over 40 years ago, Congress passed the Legal Services Corporation Act. The reasoning behind the need for the Act is like a litany of the values America thinks it has, but really doesn’t. The Act lauds equal access to justice, declares it is important to provide legal assistance to those who can’t afford it, says that the lives of low-income people are substantially improved if economic barriers to legal representation are removed, and that access to the justice system reaffirms the faith of the people in our government and our laws.
That last point is key: Without adequate services in civil, as well as criminal, courts, we shut people out of the legal system, and doing so utterly undermines their faith in the very foundations of democracy.
Even before Trump, the gap between what services low-income people need and what services can actually be provided was profoundly disturbing. The Legal Services Corporation is only able to provide a very small amount of funding to each state’s legal-aid lawyers, resulting in those entities needing to scramble and beg for additional funding from state governments, private grants, and other lawyers. With that unreliable patchwork of funding, services are unreliable at best, unavailable at worst.
The Legal Services Corporation estimated that in 2017, people would approach legal aid organizations with 1.7 million civil legal issues. Only 59 percent of those issues can be addressed, but within that 59 percent, only around 30 percent of those will be fully dealt with. Put another way, more than half of the problems that legal aid should help people solve won’t be solved.
Now, Trump proposes to destroy this already-hobbled system. His 2018 budget proposed cutting the Legal Services Corporation entirely. He didn’t succeed, but his 2019 budget has the same proposal. Losing that funding would hit nearly every legal aid organization in the country hard.
Under Trump and Attorney General Jeff Sessions, also no friend to the economically disadvantaged, the Department of Justice also shuttered the Office for Access to Justice (ATJ). ATJ began under Barack Obama’s first administration, when then-Attorney General Eric Holder set up the office to help improve access to legal resources—civil, criminal, and tribal—for indigent people. Sessions hates it, of course, but he can’t entirely close an office at the DOJ without going to Congress. He can, however, just refuse to fund it or provide it with any necessary resources. The office itself sits dark and the website is mostly fallow, with only one event—Deputy Attorney General Rod Rosenstein speaking at a right to counsel meeting—appearing since November 2016.
For Trump, this chaos and underfunding is a feature, not a bug. He’s made no secret of his disdain for low-income people and immigrants, and cutting them out of the justice system is an entirely logical and brutally efficient way to harm them. The scope of the access to justice gap, the incredible complications of the immigration system—these are not things that can be addressed by well-meaning private citizens. They require government funding and intervention and care to function properly.
At root, refusing to help low-income people and immigrants achieve the smallest modicum of justice and dignity undercuts everything we are supposed to hold dear, everything America is supposed to stand for. This isn’t just a crisis where we need to figure out how to reallocate meager resources. This is an existential crisis, a battle over our very core values, and we don’t even know how to begin to fight.
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