Immigration

For immigrants crossing the border, they need one thing to help win the case

Wilfredo Allen, center, consults with Marlene Hasner and Camila Correal in his Miami office.
Wilfredo Allen, center, consults with Marlene Hasner and Camila Correal in his Miami office. cmguerrero@elnuevoherald.com

Juan was a journalist when he left Cuba in 1996 and resettled in Mexico. But when kidnappings and murders of journalists increased in Mexico, Juan fled with his family and asked for asylum after crossing the border into Texas four months ago.

Had Juan not had a lawyer when his case came up in immigration court, it’s likely American authorities might have returned him to Mexico, where he was a permanent resident, his attorney, Wilfredo Allen, said in Miami recently.

“Having a lawyer during the migration process is the key to success,” Allen said in an interview in which he also related the story of the Cuban journalist, whom he represented. Juan declined to be interviewed and his full name cannot be published.

Juan’s case seems to prove the theory among immigration lawyers that foreign nationals represented by an attorney in immigration court proceedings have a better chance of winning their case than those left to their own devices. But the first formal study on legal representation of foreign nationals in immigration proceedings actually proves the validity of that theory.

“By reviewing over 1.2 million deportation cases decided across the United States over a six-year period, this report provides an urgent portrait of the lack of counsel in immigration courts,” according to the study issued by the American Immigration Council. “In it, we reveal that 63 percent of all immigrants went to court without an attorney. Detained immigrants were even less likely to obtain counsel — 86 percent attended their court hearings without an attorney. For immigrants held in remote detention centers, access to counsel was even more severely impaired, only 10 percent of immigrants detained in small cities obtained counsel.”

Having a lawyer usually provides positive outcomes for foreign nationals in immigration court trials, according to the AIC study titled Access to Counsel in Immigration Court.

Foreign nationals in immigration court proceedings have a right to counsel, but the court is not required to appoint an attorney to represent the immigrant if he or she cannot afford to pay for legal representation or cannot obtain pro-bono representation.

Another key finding in the report is that immigrant detainees facing deportation who have an attorney are more likely to avoid expulsion than those facing proceedings on their own.

That’s what happened in Juan’s case.

“When I met him initially,” Allen said, “he only had documents in Spanish. They had to be translated so the immigration judge could read them and understand them. We also needed documents that would support his claim that his life was in danger in Mexico.”

The key document Allen and his partner, Camila Correal, presented to the court was a report that detailed the persecution of independent journalists in Cuba, and the danger to journalists in Mexico where those who have been kidnapped have usually been killed.

The judge read in court one of the passages in a document that Correal had underlined detailing the fate of kidnapped journalists in Mexico. As a result, the judge granted Juan asylum and did not return him to Mexico or Cuba, Allen said.

The AIC study also highlighted the nationalities more likely or less likely to have legal representation.

“Mexican immigrants had the highest detention rate (78 percent) and the lowest representation rate (21 percent) of nationalities examined,” the AIC report said. “In contrast, Chinese immigrants had the lowest detention rate (4 percent) and the highest representation rate (92 percent).”

According to the report, Haitians and immigrants from India also have a high rate of representation with 71 percent for each nationality.

Several factors explain why immigrants of different nationalities are more likely or less likely to obtain representation for proceedings in immigration court, according to the study.

“Economic status certainly plays a role since the scarcity of pro bono resources demands that the majority of immigrants who obtain representation must be able to afford an attorney,” according to the study. “The ability to find an attorney could also be influenced by the strength of the social networks that different immigrant groups have to assist them in finding counsel.”

Among Latin American immigrants, Colombians are the most represented, with a rate of 64 percent. Latin Americans with more legal representation in immigration courts than Mexicans are in this order: Hondurans (23 percent); Guatemalans (30 percent); Nicaraguans (35 percent); and Salvadorans (40 percent).

Cubans have a representation rate of 44 percent, and Dominicans 47 percent, according to the study.

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