All immigration lawyers know the axiom: Handling deportation cases in immigration court is akin to trying death penalty cases in traffic court.
Immigration courts are overburdened, the stakes are high for asylum-seekers — and immigrants have no guarantee of counsel.
Because deportation proceedings are civil matters, not criminal, those who can’t afford lawyers aren’t assigned public defenders. They have to persuade someone — a law school clinic, a public interest law group, an advocacy organization — to take up their cases. Otherwise, they’ve got nothing.
New Jersey is moving to change that.
The $37.4 billion state budget agreed to last weekend by the governor and legislators includes $2.1 million to help pay for attorneys for immigrants fighting deportation. Advocates say that will help, though they estimate the full costs of covering every immigrant would run to about $15 million.
Sara Cullinane, director of Make the Road NJ, said she hoped New Jersey’s action would serve as a signal to other states and cities, including Philadelphia. Advocates have met with Mayor Kenney’s administration; a spokesperson said the city “lacks the resources to commit to funding deportation defense” but has committed to helping nonprofit groups obtain private funding “once a solid model of representation is identified.”
Only about a third of immigrants who need it currently receive counsel, and those who do triple their chances of winning their cases, according to a 2016 report from Seton Hall Law School.
“Having a lawyer makes an incredible difference,” said Lori A. Nessel, a law professor at Seton Hall who co-authored the study. Nessel heads the law school’s Center for Social Justice, which runs pro bono legal clinics, including in immigration law. Like others, Nessel described legal counsel as a fundamental right: “This is due process. This is basic fairness in our system, that no one should go before a judge without having legal counsel.”
Without a lawyer, Taiwo Saka said, he never would have been able to win his asylum case and would have been sent back to Nigeria — back to people who had beaten him when they found him as a teenager having sex with another boy, back to a country where a previous boyfriend had been killed, set on fire and burned alive. A long-time partner had also recently been killed, he learned while in detention.
Fortunately for Saka, 42, after he arrived in the United States last year his case was taken up by lawyers with the American Friends Service Committee as part of a pilot program. After more than a year in detention he was granted asylum by a New Jersey judge. The lawyers saved his life, he said.
“I didn’t have any hope, but these people restored my hope,” he said. “I can say they are like my God, because without them, I don’t know what is going to happen to me.”
The concept of “universal representation” has gained traction in recent years, beginning with a 2013 pilot program in New York City. Today, all of New York state is covered, giving immigrants facing deportation publicly funded lawyers. A handful of counties and cities have followed suit, including Chicago, Atlanta, Denver, and Baltimore as part of a Vera Institute of Justice project.
Although immigration is a highly charged issue, legal representation is simply about justice, advocates say. “Having a lawyer is a matter of due process, it’s about ensuring the proceedings are fair and the results are accurate,” said Farrin Anello, an ACLU New Jersey lawyer who was Nessel’s partner on the 2016 study.
It’s not about the laws and policies themselves, Anello and others said — it’s about whether people have the chance to win their cases under the existing laws. When immigrants in New York City didn’t receive lawyers, 4 percent of cases succeeded; that number jumped 1,100 percent when they received lawyers, and today about half of clients win their cases.
Such a gap means there are many people who would succeed if only they had the chance to make their case.
In some cases, lawyers said, they advise clients that they don’t have cases and would be better served saving themselves the trouble of pursuing lost causes. Proper representation also helps immigration court move more smoothly, clearing the backlog of cases.
“The idea that there should be appointed counsel for people in immigration proceedings is not about determining what the outcome of any specific case should be,” Anello said, “but it’s about making sure the process is fair, that we’re not deporting people and separating families simply because of a mistake or a failure to fully understand the facts of the case or the law that applies to a certain case.”
In addition to New York’s and Vera’s, a variety of local programs have been attempting to fill the immigrant representation gap. In New Jersey, Rutgers and Seton Hall law schools have immigration law clinics. There are also nonprofit groups providing representation and a handful of individual lawyers working pro bono (or close to it).
“Right now we have a crisis of representation, especially for detained individuals, and we have to try to meet that crisis from any and all angles right now, and that’s what I think we’re seeing,” said Karen Lucas, a lawyer at the American Immigration Council who heads the Immigration Justice Campaign. “We’re seeing lots of creative ideas, lots of innovation, lots of stakeholders are seeing just how important it is and really stepping up to the challenge.”
In 2015, the Friends began testing universal representation at the detention center in Elizabeth, Union County. When they have availability, their lawyers take on new cases until their load is full. Last year, their clients won 85 percent of cases in which they applied for some kind of relief, and were granted bond better than 90 percent of the time it was requested.
The program does not screen for merit, unlike other programs; all immigrants are eligible regardless of their claim or what evidence they may have. Screening clients might leave some behind who had a reasonable chance of success, said Lauren Major, senior detention attorney at American Friends Service Committee.
“We’ve also had many clients who the first time we met them we didn’t think they had a claim, and an attorney just meeting with them and looking for a strong case would not have accepted their case as having some viable solution,” Major said. “We have had many cases that were very strong and we won, but you wouldn’t have known that. … They were granted asylum or some other form of protection and if you didn’t have a universal representation model, that person wouldn’t have been protected.”
The $2.1 million in the New Jersey budget will go to Legal Services of New Jersey or other nonprofit groups already providing legal counsel to immigrants, the governor’s office said. In a statement Monday, spokesperson Dan Bryan said: “Gov. Murphy believes that immigrants are a vital part of the fabric of New Jersey and the country as a whole. The governor understands the importance of keeping families together, allowing talented New Jersey residents to continue contributing to our society, and defending our immigrants from wrongful targeting from the federal government.”
“It sends a strong message that this is a priority for our state, that states need to take this step as the federal government ramps up its enforcement, that they’ll step up and help defend immigrants and their families and due process,” said Cullinane, of the Make the Road group. “It’s important to see that this state steps up, and we hope others will follow the lead of New Jersey.”