No Papers, No Help: How Our Legal System Fails Immigrants

For immigrants facing deportation, access to legal representation can make all the difference. Unfortunately, most don't get it

ICE officers detain a man in Los Angeles on February 7, 2017 — REUTERS
Mar 09, 2017 at 3:01 PM ET

Alex Lora was arrested for allegedly selling cocaine out of a bodega where he worked in Brooklyn, New York in 2009. He maintains his innocence, but on his lawyer’s advice, he pleaded guilty to a drug offense and received five years probation. But when he took the plea deal, Lora didn’t realize that his criminal record would make him a priority for deportation.

Three years later, Immigration and Customs Enforcement officers showed up at his apartment and arrested him. Lora, a green card holder from the Dominican Republic, was detained at the Hudson County Correctional Facility in Kearny, New Jersey, where he was held for nearly six months without bond.

“My lawyer advised me that it was nothing, it would be a slap on the wrist,” Lora said of the initial arrest in a short documentary by Brooklyn Defender Services, a local public defender organization that represents nearly 40,000 low-income New Yorkers each year. “My lawyer advised me wrong. If I had known the problems I was going to have today, I would not have pleaded guilty.”

Lora took the plea, as many do, in order to avoid the possibility of jail time—which worked. But, he didn’t realize that as a non-citizen, now with a criminal record, he would become a target for ICE, nor did he know that his record made him ineligible for bail.

Lora did have one lucky break: He lived in New York City, where he was able to receive free legal aid that would have been much hard to find outside a big, liberal city. With the help of attorneys from BDS and the NYU School of Law, Lora was released after five and a half months at Hudson County and is currently living in Brooklyn, working, and raising his family. Though he is still awaiting a decision in his immigration case, his release provided him a degree of freedom not granted to most immigrants in deportation proceedings — but wasn’t without cost: Lora lost his job, his family’s source of income, and, briefly, custody of his two-year-old son.

Although President Donald Trump’s deportation rhetoric has focused on undocumented immigrants allegedly “pouring” over the border and committing violent crimes en masse, a staggering number of the approximately 441,000 immigrants detained across the country were placed in deportation proceedings after being charged with nonviolent offenses like petty theft, drug possession, or driving without a license. Many, like Lora, were picked up by ICE seemingly at random, years after their initial arrest — and due to restrictive immigration laws, their criminal records mean they’re forced to await their deportation hearings in detention centers, away from their homes and families, and with little access to legal resources.

“We see this with a lot of our clients,” said Scott Hechinger, senior staff attorney at Brooklyn Defender Services (BDS). “One day, ICE is at your door, and suddenly you’re in deportation proceedings based on a marijuana arrest from ten years ago.”

At the Hudson County facility, Lora recalled, guards would regularly encourage him to sign a stipulated order of removal, which would have released him from custody — and waived his right to a hearing before an immigration judge. Had Lora signed the papers, he would’ve been immediately deported to the Dominican Republic, a country he hadn’t lived in since he was seven years old. Between 2001 and 2011, the federal government used stipulated removal to deport more than 160,000 immigrants, according to a report by the National Immigration Law Center.

In October 2015, the Second Circuit Court of Appeals ruled that Lora was entitled to bail, due in large part to petitions filed by attorneys from BDS and the NYU School of Law. As part of Lora’s case, the court — which has jurisdiction in New York, Vermont, and Connecticut — ruled that all immigrants in its jurisdiction are entitled to a bond hearing within six months of their detention. A similar case filed in the Ninth Circuit Court of Appeals granted the same rights to immigrants in California, Arizona, Alaska, and Hawaii. Later this year, the Supreme Court will decide if the precedent set by Lora could apply to detained immigrants across the country.

“Not only does having an attorney provide people with an important understanding of what their rights are,” Hechinger said, “it also allows for a light to be shone on conditions of detention and the circumstances under which people are being detained and deported. These standards would otherwise go unchallenged.”

There are currently only seven states where immigrants in deportation proceedings have the right to a bond hearing. In the rest of the country, noncitizens can be detained indefinitely and often have trouble finding legal help if they’re detained.

According to a 2015 study published by the University of Pennsylvania Law Review, just 37 percent of the more than 1.2 million immigrants in deportation proceedings between 2007 and 2012 received legal representation. Among detained immigrants like Lora, that figure was a mere 14 percent — and for immigrants trying to fight deportation, having an attorney makes all the difference.

Immigrants detained in the New York City area have a higher chance of finding legal representation, thanks to significant funding from the City Council. As part of the New York Family Unity Project, Brooklyn Defender Services, Bronx Defenders, and the Legal Aid Society provide pro-bono representation for hundreds of local immigrants. 

But even in New York, detention is an isolating and dehumanizing experience. “I remember I was driving to the detention facility in Goshen, with someone who had never been there before,” said Sarah Gillman, a staff attorney with the Legal Aid Society. “And I turned to her and said, ‘People in detention are forgotten in so many ways. Look at how far away we are from New York City.’” The Orange County Correctional Facility in Goshen, New York is about a 70-mile drive from Legal Aid’s office in Lower Manhattan. 

The Department of Homeland Security is required to give all detained immigrants a list of free legal services, said Conor Gleason, supervising attorney at the Bronx Defenders. “Obviously, those legal service providers are stretched incredibly thin,” Gleason said. Even though immigrants across the country are provided with a list of free and low-cost legal services, most go unrepresented in immigration court.

Unlike in criminal cases, immigrants in deportation proceedings don’t have the right to a free, government-appointed attorney. Immigrants with past arrests or convictions also don’t have the right to a bond hearing — unless they’re detained in one of the six states with court rulings to guarantee it — which makes it far more difficult for them to communicate with their families or with potential attorneys.

Detained immigrants in deportation proceedings, including asylum seekers, are also inherently criminalized by the justice system, Gleason added. “When they come to court, they’re in orange jumpsuits. Their hands are shackled to their waists, and most of them don’t have lawyers. It’s an unbelievably unjust scenario.”

Gleason previously represented a client who, like Lora, was a green card holder from the Dominican Republic and had lived in the United States since the mid-1990s. Other than a criminal conviction for possession of cocaine in the early 2000s, Gleason’s client had no criminal record. In April 2015, ICE officers — who solely identified themselves as “law enforcement” — arrived at his home.

“Immigration went to his home and told his relatives someone was using our client’s identity documents unlawfully, and they needed to speak with him in order to confirm some things,” Gleason said.

“Our client came home, and they arrested him. They detained him for five months.” Under the 1996 Immigration Reform and Immigrant Responsibility Act, immigrants convicted of “crimes of moral turpitude,” including drug possession, are subject to mandatory detention during removal proceedings. As a result, Gleason’s client was detained throughout the duration of his case, until September 2015, though he was one of the relatively lucky few whose detention did not lead to deportation. Exactly a year after he was released from detention, Gleason told me, the client became a naturalized US citizen.

In his short time in office, President Trump has issued a series of executive orders targeting both documented and undocumented immigrants already living in the country, as well as potential immigrants and asylum seekers who migrate here in search of relief. The “Border Security and Immigration Enforcement Improvements” order, issued on January 25th, not only mandates the construction of a wall along the US-Mexico border, but also the mandatory detention of any immigrants caught attempting to cross, including families and asylum seekers.

Although this action will undoubtedly lead to a surge in detentions, the indefinite detention of asylum seekers was common practice under the Obama administration. Since January 25th, the immigration attorneys at BDS haven’t been able to secure release for any of their asylum-seeking clients, said Andrea Sáenz, supervising attorney of BDS’s immigration legal practice.

“We’re applying for asylum, and the government isn’t releasing any of them,” Sáenz said. “A lot of these people have really good claims, they have sponsors to be released to, they have no criminal record anywhere in the world, and they’re traumatized by being in detention. They’ve never been in that situation before. They shouldn’t be locked up.”

For some detained asylum seekers, returning to their home country is often preferable to the horrible conditions in detention centers. One of BDS’s recent clients, an 18-year-old asylum seeker from Mexico, did just that.

“He crossed the border with his mother, who was released, but he was detained,” Sáenz said, adding that this isn’t the first time she’s seen ICE detain a male asylum seeker while granting release to his female companion. Since he was 18, the boy was placed in an adult detention facility. “We saw that he had both a potential asylum claim and that he was potentially eligible for special immigrant juvenile status… but he was having a really difficult time in detention,” Sáenz said. Her team submitted parole requests for the client, but they were all denied.

“He told his attorney, ‘I can’t do it anymore. I’m going to accept the deportation order.’ The system is so difficult that some people accept deportation rather than fight a good defense. I don’t think people know that happens,” Sáenz said.