Having a lawyer can make all the difference in the world to someone facing deportation in federal immigration court, where the law is dizzyingly byzantine. Yet only 37% of potential deportees have one. Part of the problem is a lack of attorneys trained in immigration law, and part of it is money — immigrants, unsurprisingly, often lack the resources to hire lawyers.
Of course, if they were facing criminal charges, they would be provided with lawyers as a constitutional right under U.S. Supreme Court rulings. But immigration codes are civil, and there is no constitutional right to an attorney during civil proceedings. If you can find one on your own, good for you, but the government does not supply one.
Forcing someone — often a person without even a rudimentary understanding of English — to navigate this complicated legal terrain with no idea of what the law says, or what remedies might be available, is Kafkaesque. It is particularly absurd and inhumane to demand it of a child, including the thousands of unaccompanied minors fleeing the murderous streets of El Salvador, Honduras and Guatemala to seek asylum in the United States. Nonprofit activist groups and private law firms with rigorous pro bono programs have provided lawyers in some cases to people facing deportation, but there aren’t nearly enough such lawyers to go around.
In a perfect world, no one would have to go into such a legal proceeding without the benefit of representation. But the federal government, which is responsible for immigration enforcement, doesn’t have the resources or the inclination to provide lawyers for the people it’s trying to deport. With the Trump administration’s unsettling clampdown on undocumented immigrants — anyone living in the U.S. without permission is now fair game for deportation, regardless of how long they have lived here or their ties to the community in which they live — some state and local governments are stepping forward to fill some of the gap. Estimates suggest that a person in detention facing deportation is about 10 times more likely to win his or her case with a lawyer. (That number is lower for people not in detention.)
Since 2014, the California Department of Social Services has been sending about $3 million a year to organizations to provide legal help to more than 500 unaccompanied minors facing deportation. Now SB 6, which has cleared the state Senate and is under consideration in the Assembly, would provide an additional $12 million for lawyers for people facing deportation. The law would give top priority to people in detention who have a parent, spouse or child living in California legally, and slightly lower priority to military veterans and their spouses, asylum-seekers and those with long-standing community ties. It specifically excludes people convicted of a violent felony, a carve-out that has upset pro-immigration activists who argue that all people facing deportation should be provided with lawyers. They also argue that singling out convicted felons plays into the Trump administration’s portrayal of undocumented immigrants as violent criminals.
The same debate has swirled around a city-county effort. Los Angeles County Supervisor Hilda Solis is still pushing a proposal to contribute $3 million to a new Los Angeles Justice Fund even though the supervisors haven’t yet agreed on whether to exclude convicted felons. The Los Angeles City Council is proceeding with a plan to kick in $2 million a year for up to three years, so long as violent felons are excluded. The Justice Fund, to be administered by the California Community Foundation, would merge the city and county dollars with $5.7 million from several nonprofit foundations. Each deportation defense costs about $5,000, so the $10.7 million L.A. Justice Fund would serve about 2,140 people in a region where the immigration courts have a backlog of 44,600 cases. Of those, 68% of detained immigrants and 26% of those free during the deportation proceedings don’t have legal help.
Given that need, it makes sense to prioritize the spending. Among those who should be given special consideration are unaccompanied minors and people eligible for the Deferred Action for Childhood Arrivals program. Those with the sorts of criminal convictions that will probably mean they won’t win their challenges should be at the bottom of the list. That’s not because we believe anyone should be denied a lawyer, but because limited public resources need to go where they can do the most good.