This post is the third in a new series by NIJC's detention team in which NIJC staff, clients, and volunteers will share their unique perspectives on immigration stories that do not always make the news. We invite readers to share their own experiences and reactions in a moderated discussion in the comments section.
As interns in NIJC's Detention Project this summer, we have had the privilege of advising hundreds of people who are held in immigration detention centers throughout the Midwest. The most eye-opening aspect of this experience has been to witness the ubiquitous nature of pre-deportation detention and its effects on the merits of defending an immigration case.
When people are apprehended by U.S. Immigration and Customs Enforcement (ICE), they are processed along with hundreds of others through a regional facility where a single immigration official determines who should be detained and who should be offered bond. Usually, this officer does not speak the language of many of the immigrants whose fates they determine. In most cases, the deportation officer’s determination to hold someone without bond cannot be appealed. Months may go by while a person sits in jail, perhaps hundreds of miles from their families, and frequently unsure of why they are there, what their rights are, or when they will be able to get out. The lucky ones have the opportunity to speak with a volunteer from an organization like NIJC who can at least explain the basics to them.
The folks who remain in detention are there for one of two reasons: they either cannot afford to pay the bond that an immigration official has set for them, or an immigration official has decided they do not qualify for a bond. These individuals are deprived of their liberty by a complex web of federal and state government actors. They are forced to remain locked-up while the federal government puts them through the deportation process. While pre-removal detention, like pre-trial detention, is meant to assure appearance at future hearings, this type of detention resembles a form of punishment and has potentially disastrous consequences for detained immigrants. Whether or not a person is offered bond can affect the entire outcome of her case.
You may have heard that immigration law is among the most complicated types of law that exists in our country today. And yet, immigrants do not have the right to appointed counsel in removal proceedings. Few private immigration attorneys will represent people while they are in immigration detention, sometimes going so far as to drop former clients once they are detained. Even those immigrants who may have had some small amount of savings to hire a lawyer can quickly burn through that trying to call family members using expensive phone cards. And if they were the sole breadwinner, the income in their family is now gone. An organization like NIJC can represent a lucky few of these folks. But the overwhelming majority of immigrants in detention must defend themselves without the help of a legal representative—the latest numbers show that 84% of detained individuals do not have legal representation during removal proceedings.
Without legal counsel, there is no one to help a detained immigrant correct a legal error by an immigration judge or government attorney. More importantly, even those who are eligible for relief from deportation usually do not have the legal understanding to effectively pursue their own defense.
In the criminal context, more familiar and transparent, the effects of pre-trial detention on the final outcomes of cases are well-documented. In criminal cases, people who cannot afford even the low bails set for them will plead guilty to offenses they did not commit in order to gain back their liberty. We have noticed this phenomenon exacerbated in the context of pre-removal immigration detention because of a hugely salient difference: the lack of right to counsel in immigration proceedings.
The Gomez family is one of many we have met who have suffered serious consequences from being denied a bond. Mr. Gomez’s ineligibility for bond made it impossible for him to adjust his status without returning to Mexico to wait for years for his application to be processed. Because of the way that the custody statutes are written, Mr. Gomez—who had been in the United States for 25 years and had strong family ties here—was ineligible for bond because of his minor criminal convictions. When he was detained and put in immigration proceedings, he had four U.S. citizen children with his partner of 10 years. While the couple was able to marry while Mr. Gomez was in detention, he needed more time for a regulation change to take effect so that he could remain in the United States while his application for lawful permanent residence was processed. Because he was detained, he had only a couple months to prepare to present his case and had no choice but to return to Mexico, where he will now have to wait between one and three years for a waiver application to be processed so he can return to the United States as a lawful permanent resident.
While we have both experienced the wonderful joy of stopping the deportations of several clients and reuniting them with their families, we know that there are too many other people who will not have such a joyous end to their removal proceedings. Facing the process alone is too daunting. It seems an almost impossible task to ask of a lay person, let alone a lay person who is detained. Imagine trying to plan something like a trial—including preparing witnesses, amassing documents from courts, hospitals, government agencies, and other sources—while detained in an immigration facility where the price of making one phone call can be as much as $2.00 per minute. It is hard enough for us to track down the necessary evidence for our clients because this evidence could be strewn across the country. It would be nearly impossible for someone who is detained and representing herself to complete this task even if she knew what she needed to gather. In tandem with the complexities of the legal arguments in many of these cases, the language and cultural barriers, the amount of time one has to sit in immigration detention in order to fight a case, and the misinformation given by ICE officers to coerce individuals into waiving their rights and agreeing to deportation, it is easy to see how the cards are stacked against pro se detained individuals. It is easy to understand why many people agree to their own deportation orders even when they have remedies. It is easy to understand why so many people just can’t fight anymore.
Aurora Maoz and Diana Rashid interns for the Detention Project at Heartland Alliance's National Immigrant Justice Center.