Trump’s new court policies inhibit attorney access

In recent weeks, the Trump administration has intensified its assault on immigrant rights with several new moves to limit access to counsel.

Immigration court is already a starkly unbalanced system where mostly unrepresented noncitizens — many non-English speakers who may lack formal education — are expected to present their own deportation defenses against trained Department of Homeland Security prosecutors. A prominent immigration judge has referred to deportation proceedings as “death penalty cases in a traffic court setting.”

The stakes in immigration court are especially high and the chances of finding a lawyer are especially low for detained noncitizens, a population that comprises recently arrived asylum-seekers as well as long-term U.S. residents including lawful permanent residents. In fiscal year 2018, representation rates nationally for detained individuals were just under 35%, with local rates even lower (29.4%).

The California Collaborative for Immigrant Justice is a coalition of pro bono legal services providers serving noncitizens detained in the San Francisco Immigration Court jurisdiction — an area that spans from Bakersfield to the Oregon border. Detained noncitizens are particularly vulnerable due to economic and geographic obstacles and low representation rates. Limited-scope legal services provided by CCIJ — including consultations, advocacy in court and referrals to pro bono attorneys — are often the only legal assistance local detained noncitizens receive during the entirety of their detention and deportation.

Recent changes by the Executive Office for Immigration Review,

the Department of Justice branch that houses the immigration courts, are further limiting opportunities for detained noncitizens to access legal assistance.

For example, a policy memo published late last month has levied new limits on the ability of pro bono attorneys to serve as “friends of the court” in immigration court.

Pro bono “friends of the court” provide a lifeline to detained noncitizens from Northern California, offering free consultations and answering questions, helping to raise legal challenges or questions before the judge, and providing followup assistance to detainees and their families. These consultations connect detainees with additional legal resources and sometimes even long-term representation.

The new policy limiting “friends of the court” purports to protect noncitizens but in reality, it leaves unrepresented noncitizens detained locally more vulnerable — without access to a cadre of experienced, vetted and free attorneys.

Another recent EOIR policy shift has placed limits on a national program that matches noncitizens whose immigration cases are on appeal with pro bono representation. Earlier this fall, EOIR stopped cooperating with the project by ceasing to provide access to case records and rescinding a policy that allowed the program a brief extension of time on cases it placed for representation.

These recent moves to hinder access to pro bono attorneys are part of the Trump administration’s assault on due process and access to counsel for noncitizens.

On other fronts, the administration is bringing the issue of whether immigrant advocacy may be criminalized to the Supreme Court, and last winter it was exposed that the U.S. government was tracking immigration lawyers on the southern border. Locally, the American Civil Liberties Union of Northern California requested a temporary restraining order against U.S. Immigration and Customs Enforcement on behalf of nonprofit immigration lawyers who were told they would be denied access to some noncitizens picked up in raids announced last July.

As new policies further inhibit access to advice and counsel in immigration proceedings, CCIJ is making necessary changes to our programs while voicing our disagreement and actively resisting these latest attacks. We refuse to stand by as detained noncitizens face “death penalty cases in a traffic court setting” without access to counsel or protection of their due process rights.