This week marked the 50th anniversary of Gideon vs. Wainwright, in which the U.S. Supreme Court ruled that people in criminal proceedings have a right to counsel. On Wednesday, the Senate Judiciary Committee heard testimony on due process issues in the immigration system. Fittingly, the lack of access to counsel for people in immigration detention was a key concern.
This article was reposted with permission from the Chicago Bar Association Record.
In the months before I started law school, a friend gave me the book Gideon’s Trumpet, which tells the story of Gideon v. Wainwright, the Supreme Court case recognizing a constitutional right to counsel in most criminal proceedings.1 Knowing that there would be moments in the coming years when I would question my resolve to become a lawyer, my friend offered an important piece of advice: during those times I should remember Mr. Gideon and his fight for legal representation. My friend was right, and thinking about that case helped me endure some of the most tedious of law-school subjects.
Now, though, I am a lawyer at Heartland Alliance’s National Immigrant Justice Center (NIJC), where I am doing more or less what I knew I wanted to do when I decided to go to law school. I represent immigrants, mostly detained individuals who are seeking protection from persecution or torture. We win more cases than we lose, and my days have virtually no “tedious” moments. Still, I find myself continuing to call on Mr. Gideon for motivation and inspiration.
For those who are familiar with immigration courts, the significance of Gideon shouldn’t come as a surprise: I practice law in a system where most non-citizens come into contact with immigration enforcement officers, are ordered deported, and are physically removed from the United States without ever seeing a lawyer. While immigrants are allowed to hire legal representation, there is no right to counsel, and detained immigrants often either cannot afford counsel or are shuffled through the system before they have a chance to find a lawyer. Thus, hardly a day goes by when I don’t think about how our immigration system—which doles out punishments that are often more severe than the average prison term—would function if Gideon’sright to appointed counselextended to immigration proceedings.
Given what’s at stake, one would hope that the court system would compensate for the lack of a right to counsel by creating appropriate safeguards to ensure that each applicant has a fair chance to present her case. Indeed, not only does the statutory scheme require it,2 but federal courts of appeals have instructed immigration judges to be “especially diligent” when adjudicating cases involving pro se litigants.3 In my experience, however, the opposite often proves true.
A big part of my work at NIJC involves providing appellate representation for asylum seekers who are detained in remote parts of the country, most of whom had no lawyer at the trial level. Every time I read a record in one of these cases, I am struck by how much the odds are against asylum seekers who do not have the benefit of counsel from the very beginning.4
A skeptical reader might attribute these difficulties for immigrants and asylum seekers to the fact that the burden is, for the most part, on the applicant to prove eligibility for an immigration benefit. But the statistics prove my point. Eighty-four percent of detained immigrants do not have attorneys, and studies have shown that representation in removal proceedings improves an aspiring American’s ability to defend against deportation by a magnitude of six.5 Without counsel, only 3 percent prevail in their asylum cases compared to 18 percent who have legal counsel.6
Immigrants, especially asylum seekers, are put in an untenable position where they are expected to navigate complex legal issues with insufficient education, an inability to communicate in English, and virtually no understanding of the legal elements that they are expected to prove. The legal complexity of an asylum case cannot be overstated; to be eligible for asylum an applicant must show that she meets a definition with at least five sub-parts, prove that she is not subject to various additional legal bars, and corroborate her entire claim with both subjective and objective evidence.7 I have yet to meet a client who I would expect to be able to clear these hurdles alone, even with compelling facts.
The statistics mentioned above are not the only way to illustrate how lack of access to counsel prejudices eligible applicants. For example, one of my clients, Marie, faced extreme persecution in the Democratic Republic of Congo (DRC) at the hands of her uncle, a military commander whom she was forced to marry at the age of 12.8 For years, Marie’s husband would routinely torture her: he burned her with cigarettes, tied her to furniture for days on end, and stabbed her hands and feet with a screw driver. Marie was detained and unrepresented by counsel at the time of her immigration hearing, so she was on her own when it came to proving her status as a refugee. When she tried to show the judge scars that she has on her hands and feet to corroborate her account of persecution, the judge refused to look at them, reasoning that he could not evaluate them because he was not a medical professional. Yet, in the decision, the very same judge faulted Marie for failing to produce forensic proof, ignoring the fact that she could not have done so while detained in a remote facility in Georgia. Under those same circumstances, the judge also thought it reasonable to ask Marie to produce medical and property records from the DRC dating back more than twenty years even though she has no remaining ties to that country.
Another of my clients, Angela, is a transgender woman from Mexico who also tried to represent herself while detained. Angela had an interview with an asylum officer before she appeared in front of the immigration judge, and a transcript of that testimony was provided to the judge as he considered Angela’s case. In her testimony before the asylum office, Angela described an instance where she was gang-raped by a group of men in Mexico who were trying to punish her for failing to conform to gender expectations. Without a lawyer to elicit this testimony, though, the details of this event and Angela’s understanding of her persecutors’ motivations were not discussed. And when the judge denied Angela’s request for protection, he concluded that the rape was merely a “personal vendetta” unrelated to Angela’s sexual orientation or gender identity.
These examples illustrate that sometimes judges fail appreciate the nature of a pro se applicant’s experience abroad simply because they have not asked the right questions. In other instances, the lack of counsel leads to judicial decisions that are based on fundamental misunderstandings of the applicant’s claim. Our client, Alba, is a good example of this related problem. As a young woman, Alba fled to the United States from her native El Salvador after her parents forced her to marry a 68-year-old man when she was a young teen. Alba’s parents thought she would “outgrow” her attraction to women if she got married, but Alba tried to explain to the judge that she was forced into this marriage and made to endure years of spousal rape. Rather than recognizing this forced marriage for what it was, persecution, the judge concluded that Alba’s parents arranged this marriage “for her own good” and denied protection.
These cases are far from exhaustive. Immigrants and asylum seekers around this country are routinely denied lawful status because, without an advocate at their side, they fail to present the necessary evidence that would prove their eligibility. Since the election in November, however, legislators have voiced bipartisan support for immigration reform. Although the possibility for reform is encouraging, the majority of proposed legislation has focused on changes to eligibility requirements and improvements in border security, with little attention given to fixing the judicial system that is responsible for adjudicating claims. But the proposed changes cannot be considered in isolation; these changes will not be effective if they do not include steps to ensure the fairness of immigration-court proceedings. Even in a reformed immigration system, people will continue to face deportation, and those people must understand their rights and have an ability to present their cases before a judge.9 Access to counsel for individuals like, Marie, Angela, and Alba is the best way to protect the integrity of the system and the only way to ensure that immigration reform now comes without the prospect of a generation of legal battles in the future.
Keren Zwick is the supervising attorney for Heartland Alliance's National Immigrant Justice Center's LGBT Immigrant Rights Initiative.
Rethink Immigration is a blog series in which National Immigrant Justice Center staff, clients, and volunteers share their unique perspectives and specific recommendations on what Congress and the Obama administration must include in comprehensive immigration reform to create an inclusive, fair, and humane immigration system.
1. 372 U.S. 335 (1963).
2. See 8 U.S.C § 1229a(b)(4) (providing non-citizens a right to a “full and fair hearing,” which includes a “reasonable opportunity to present evidence”).
3. See, e.g., Jacinto v. INS, 208 F.3d 725, 734-35 (9th Cir. 2000).
4. The problems are exponentially worse in parts of the country where legal representation is rare. While the immigration courts in Chicago and other major cities are far from perfect, it is clear that the judges here are better than many.
5. Donald Kerwin, “Revisiting the Need for Appointed Counsel,” Insight No. 4, Migration Policy Institute at 6, April 2005, available at http://www.migrationpolicy.org/insight/Insight_Kerwin.pdf.
6. See Id.
7. An applicant for asylum must show that she meets meet the definition of a refugee, which is defined as “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Terms like “persecution” and “social group” are not defined in the statute. And to complicate matters further, even once an applicant shows that she satisfies this standard, she has to further demonstrate that she is not subject to a variety of bars to relief, the most common one being a one-year filing deadline that is itself subject to two statutory exceptions.
8. “Marie,” and all other client names in this piece, are pseudonyms.
9. Ensuring access to counsel is one of NIJC’s five key principles that should be addressed in Comprehensive Immigration Reform. See http://www.immigrantjustice.org/immigrationreformpriorities.