There’s a lot wrong with the legal process that led to these removal orders, and with how they were enforced.
At the family detention center in Dilley, Texas, immigration attorneys from the CARA pro bono law project are working overtime to file emergency appeals to stay the deportations for some Central American detainees—mostly young mothers and their young children. These families were rounded up as a part of Obama administration’s recently announced immigration raids.
A total of 121 migrants slotted for deportation were arrested over the weekend in Georgia, Texas, North Carolina, and other states, as per the most recent figures released by DHS. Secretary Jeh C. Johnson said in a statement that the migrants who were targeted “have exhausted appropriate legal remedies, and have no outstanding appeal or claim for asylum or other humanitarian relief under our laws.”
Still, as of Wednesday, CARA had filed seven emergency appeals to the Board of Immigration Appeals at the Department of Justice, and all seven were granted. ”So far, 100 percent of the appeals have been granted,” Kathryn Shepherd, CARA’s managing attorney, tells CityLab. “That should tell you that something very wrong is going on here.”
There’s actually a lot wrong here—both in the legal process that led to these removal orders, and in the way the government chose to enforce them via the recent raids.
The current system “is rigged”
Here’s the first problem: immigrants applying for asylum aren’t guaranteed an attorney, as defendants in criminal cases are. The lack of representation makes a huge difference in outcomes, according to government data analyzed by Syracuse University’s Transactional Records Access Clearinghouse project.
“The odds of being allowed to remain in this country were increased more than fourteen-fold if women and children had representation,” TRAC’s report analyzing data up to June 2015 says. Here’s a chart from that report showing the difference in outcomes for defendants with and without attorneys:
In a subsequent report focusing on child applicants, TRAC found that 70 percent of the cases where a child had legal counsel resulted in the person ultimately being allowed to stay in the U.S. This figure was only 15 percent if the child had no attorney.
Politico‘s David Rogers also came to the conclusion that “without an attorney, child migrants from Central America face overwhelming odds in seeking relief from U.S. immigration courts,” based on data he obtained through via a Freedom of Information request.
These figures aren’t particularly surprising to folks in the industry. Since President Obama’s 2014 order to expedite cases from Central America, lawyers have played an even bigger role in helping these often young, Spanish-speaking clients navigate an incredibly complicated legal system.
The goal behind that order was, in part, to get cases from Central America “processed fairly and as quickly as possible, ensuring the protection of asylum seekers and refugees while enabling the prompt removal of individuals who do not qualify for asylum or other forms of relief from removal,” President Obama said at the time. But immigration courts have long been overburdened, and pro-bono lawyers are now overextended trying to prepare and present cases on short notice. Private law firms with more resources are often too expensive.
“The current system is rigged to guarantee orders of deportation and is fundamentally unfair,” says Mary Bauer, executive director of the Legal Aid Justice Center which provides legal representation to low-income groups, via email.
After conducting interviews with the detainees at the Dilly detention center, CARA’s Shepherd and her colleagues found other issues that are arguably symptoms of this rushed process. Some of the defendants weren’t properly communicated their rights, and many weren’t made to understand legal procedures once their case was in the pipeline. In one case, important documents weren’t filed in court. It’s partly on the basis of these claims of ineffective legal counsel that CARA is filing emergency appeals.
“Our interviews revealed that these families have bona fide asylum claims, but were deprived of a meaningful opportunity to present them at their hearings in immigration court,” she said in a statement. In other words, she tells CityLab, some of them may have got a day in court in theory, but it wasn’t a meaningful one.
Why prioritize harsh enforcement?
In a well-reasoned op-ed in defense of the raids targeting Central American migrants that U.S. immigration courts have ordered to leave the country, the Los Angeles Times argues:
We have to expect the government to follow through on legal processes that have been completed. When the courts reject arguments that individual migrants have a right to stay, the government is correct in targeting them for removal.
This is a fair point. The country is set up on legal machinery that must be honored, despite its flaws. And for the record, the Times addresses several of the flaws mentioned in the section above. But while it’s important to enforce the law, there is some room to decide what the enforcement action is, and how to prioritize it.
In 2014, for example, the Obama administration announced new guidelines for enforcement immigration law that de-prioritized deportation against people who aren’t terror threats, or who don’t have criminal records. Family units and people with asylum claims ranked low on the priority list. But this leniency doesn’t extend to those who arrived in the U.S. after January 1, 2014, such as many of the mothers and children from Central America. Instead, time and resources have been allocated to conduct raids that, immigration lawyers say, are traumatizing not just the already-traumatized Central American refugees but the wider immigrant community around the country.
“They are treating a refugee crisis as an immigration enforcement issue,” Gregory Chen, the director of advocacy for the American Immigration Lawyers Association (one of the collaborating organizations in the CARA project) told The Atlantic’s Russell Berman.
Political priorities and national values can also guide both immigration laws and their enforcement. In the past, both Republican and Democratic administrations have taken actions protecting refugees from deportation. Congress has passed similar protections: a 1996 law, for example, provided relief to refugees of the Castro regime and still allows Cuban immigrants to show up at the American border, enter easily, and immigrate. At other times, the U.S. has not been so welcoming to refugees and newcomers.
At any given point, America does decide who gets to stay and who doesn’t, and how it’s going to enforce these decisions. As Slate’s Jamelle Bouie puts it:
The question of the refugees isn’t if we’ll honor our values; it’s which ones we’ll choose. Will we embrace our heritage of inclusion or reject it for nativism? Will we be a country of actual open arms or one where our rhetoric is in recurring contrast to our actions?
Proponents of the raids say enforcing the law in this manner will send a much-needed signal discouraging more illegal migration from Central America, and more such measures should be taken.
That's only about 14 hours' worth of the border flow of new Cent.Amer adult illegals w/kids. 100X more might work. https://t.co/dfwKhbLSo6— Mark Krikorian (@MarkSKrikorian) January 4, 2016
But the idea ignores a broader understanding of the complex conditions that caused these people to flee their countries, says Laura Lichter, AILA’s general counsel. “It’s a solution for the wrong problem,” she says. And “If we get [this process] wrong, these are life and death matters.”