Don’t do away with detainees’ access to legal help
On April 10, the Executive Office for Immigration Review announced the “temporary halt” of its Legal Orientation Program, which provides many immigration detainees with the only help they will receive concerning removal proceedings and the relief that might be available to them. Ending the program would be a grave mistake, affecting the due process rights of hundreds of thousands of detainees.
People in removal proceedings are entitled to counsel, but at no expense to the government. This means that individuals who are not lucky enough to obtain pro bono counsel or have funds to pay private counsel must go alone through removal proceedings, in a field regularly described as the most complex in American law. And the cases are serious. Many involve children. Many involve individuals who have lived here for many years and developed deep roots, or who fear persecution or death if forced to return to their countries. Immigration Judge Dana Marks Keener describes removal proceedings as “death penalty cases in a traffic court setting.”
The figures are startling. Less than 30 percent of people in removal proceedings secure counsel. But among persons in ICE detention — over 30,000 on any given day — only 14 percent have counsel. The outcomes are also startlingly disparate, even allowing for differences in individual cases. Overall, unrepresented detained persons are twice as likely as represented ones to be deported.
The Legal Orientation Program, while no substitute for individual representation, provides vital assistance to immigration detainees isolated from other sources of information. Under the program, EOIR provides about $8 million a year to the nonprofit Vera Institute for Justice. In turn, Vera funds nonprofit organizations that go into immigration detention centers to educate individuals about the immigration court process and their rights and remedies in it. The program operates at 38 detention facilities across the country. Advocates call it a “legal lifeline” for detained immigrants.
For California, the Executive Office for Immigration Review’s decision would halt LOP programs at the privately run Otay Mesa and Adelanto detention facilities in Southern California. Together, they detain some 3,500 people at a time, with Otay Mesa planning to double its capacity. California’s recent funding for immigration legal services provides hope that some detained individuals will obtain representation. However, following California legislation curtailing immigration detention in the state, we can also expect increased transfer of California residents to detention outside California and removal without benefit of counsel or the LOP.
According to The Washington Post, EOIR will examine the LOP’s cost-effectiveness, noting that immigration judges must already inform respondents about their rights. Advocates dispute the adequacy of such warnings. Moreover, alarmingly, halting the program coincides with another development — imposing production quotas on immigration judges, to reduce the immigration court backlog of over 650,000 cases.
The two events seem mutually incompatible. Judges pressed to process cases quickly will have less time to inform pro se respondents about their rights and remedies. At the same time, the LOP has actually shortened removal proceedings. According to the EOIR’s website, “The LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; nonprofit organizations reach a wider audience of people with minimal resources; and cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention.”
In 2003, the EOIR showed commitment to fairness, responding to the lack of representation in removal proceedings by funding the LOP. Ending that program signals that the EOIR is no longer concerned about fairness. It is also an ineffective way to shorten removal proceedings. And it cannot be seen in isolation. The combination of increased immigration detention, immigration judge quotas and ending the LOP program turns removal proceedings into a deportation mill. Restoring the Legal Orientation Program would restore a measure of fairness.