A movement is taking shape to create a sort of “public defender’s office” to represent hundreds of thousands of immigrants who may wind up in deportation proceedings and cannot afford an attorney.
While the effort is amorphous at this time, and largely focused on certain communities, some nationally known immigration attorneys and advocates — including some in Miami — are considering establishing a system to provide free legal representation to immigrants in deportation proceedings under President Donald Trump’s toughened immigration measures.
If such a system were established, it would mark a historic shift in how foreign nationals appear in immigration courts. Currently, they are allowed to have a lawyer, but often appear by themselves because they cannot afford to hire an attorney or cannot secure one from the perennially underfunded and understaffed nonprofit groups that offer free representation. Unlike criminal court, there is no legal requirement for immigration judges to appoint a lawyer for foreign nationals who cannot afford one.
“Right now the effort is within specific communities which have taken a stand against this massive expansion of immigration enforcement,” said Michelle Ortiz, deputy director of Miami-based Americans for Immigrant Justice. “I am not seeing it so much as a national movement, but a movement that’s coming out of cities whose mayors and leaders want to ensure that their residents have access to counsel and can defend their deportations.”
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Though the effort may be piecemeal, Ortiz noted that a group of attorneys and philanthropists in New York, led by a retired federal judge, has discussed a possible national system to represent all immigrants in removal proceedings.
“Our effort is called the American Immigrant Representation Project [AIRP],” said Shira Scheindlin, a former judge for the Southern District of New York who now works for the Stroock law firm in Manhattan. “It has a steering committee made up primarily of members of various organizations doing immigrant defense work. The goal of the organizations is to encourage lawyers from big firms to volunteer to represent immigrants who are in removal proceedings and are detained at a detention facility during the pendency of the removal proceedings.”
Scheindlin cited studies backing the contention that immigrants in proceedings fare better when they have an attorney.
“Statistics show that immigrants with counsel are much more successful at being released from detention by posting a bond than immigrants who lack counsel,” she said. “Also, immigrants with counsel are more than 10 times more likely to resist removal when they have counsel than when they lack counsel. So providing lawyers is critical.”
Ortiz and Cheryl Little, executive director of Americans for Immigrant Justice, are on the steering committee of Scheindlin’s group.
Trump and his aides say their focus is to remove millions of immigrants who, they say, represent a threat to United States.
“Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety,” according to the text of a Jan. 25 Trump executive order outlining the new immigration policies. “This is particularly so for aliens who engage in criminal conduct in the United States.”
The order also says that immigrants deemed “removable” are those who have been convicted of any criminal offense, charged with any criminal offense, or who have committed acts that constitute a criminal offense. The new rules deleted Obama-era policies that targeted mainly convicted criminals.
While Ortiz and Little have been in touch with Scheindlin’s group, for now both are focusing on South Florida, trying to muster additional resources and personnel to represent more immigrants in proceedings as enforcement expands.
A pool of money is emerging in certain communities, but is not earmarked for a national effort. Instead, the money is reserved for immigrants who live in the cities, counties or regions where officials have pledged funds for immigration court defense.
In all, perhaps $10 million to $20 million has been discussed separately in cities like Chicago, Los Angeles, San Francisco and Seattle.
But for a national effort to be effective, it would need more money and attorneys in order to guarantee a lawyer for every immigrant in proceedings.
Given the more than 530,000 foreign nationals currently in deportation proceedings nationwide, a national “public defender’s office” might need close to 10,000 attorneys and a budget of $300 million to $400 million.
“It would take the investment of municipalities, cities, and perhaps states, along with private partners,” Ortiz said. “It’s doable, if there’s political will for it.”
A national system that would guarantee a defense attorney to immigrants in deportation proceedings would probably emerge gradually.
“It would have to be incremental,” Ortiz said. “If you have experienced agencies like ours and Catholic Legal Services involved, we could slowly expand and train people and in a year or two it might get going.”
Catholic Legal Services executive director, Randolph McGrorty, said legal representation for immigrants in proceedings is all the more urgent given Trump’s policies.
“The movement for representation is essential given the harsh enforcement operations under the new administration,” said McGrorty, who decried Miami-Dade’s collaboration with immigration authorities by turning over foreign nationals detained at county lockups whose names appear on detainers.
“On an encouraging note,” McGrorty said, “several foundations and significant philanthropists in our community see the importance, the need, and the value of legal services to immigrants.”
Ira Kurzban, a national authority on immigration law based in Miami, agreed that a system to provide attorneys to all immigrants in deportation proceedings would improve their chances in immigration court.
“Without competent representation, immigration proceedings are a sham because immigration law takes years for even skilled lawyers to master,” Kurzban said. “The Supreme Court and lower courts have recognized for decades that immigration law is a ‘labyrinth’ and a ‘legal specialty of its own’ that only lawyers can navigate. It is unimaginable that an adult who does not speak our language, let alone a child, could ever adequately represent herself in an immigration proceeding. It is pure fantasy, a facade.”
Ortiz said there is also urgency because of reports that the administration is speeding deportation procedures in immigration court.
“Traditionally immigration court cases take years, but that’s changing,” she said. “They’re hiring more immigration judges and fast-tracking proceedings, which makes our job even more difficult.”
The Executive Office for Immigration Review (EOIR), which oversees immigration courts, said that pursuant to Trump’s Jan. 25 executive order, immigration judges began “serving details” in six locations last week.
Those locations include Eloy, Arizona; Pompano Beach; Chicago; Jena and Oakdale, Louisiana; Chaparral, New Mexico; Dilley, Karnes City, Laredo and Livingston, Texas.
“Regarding EOIR’s consideration of additional cities for possible immigration details, the agency’s plans are still being finalized,” EOIR said in a statement.
In South Florida, for now, Ortiz and Little are trying to get more money just to cope with an increased workload as a result of stepped-up immigration enforcement.
“We’re trying to expand our deportation defense work to meet the needs of our community,” Ortiz said. “We expect to see an unprecedented number of persons with American citizen children, who have lived here for years and committed no crimes, get caught up in detention and deportation.”
Ortiz said her nonprofit organization is hoping private donors and area municipal governments will support this effort.
Michael Hernández, a spokesman for Miami-Dade Mayor Carlos Giménez, told el Nuevo Herald in an email Tuesday night that the county “is not allocating” any dollars for such an effort. Other Miami area mayors did not respond to email messages.