As U.S. immigration policy changes rapidly, is it fair that undocumented workers face the law without representation?
Three years ago, countless stacks of cardboard boxes filled the basement closet of a tall, narrow building at Broad and Market in Trenton. Arranged without logic and hard to reach, each of these boxes opened to reveal the endless paperwork of immigration cases. The documents ranged from pending immigration appeals to urgent asylum requests, each case in a file folder marked by the client’s often-illegible name.
It was the summer of 2012 and the Catholic Diocese had shut down the Trenton Office of Immigration and Refugee Services when the director retired. The Diocese asked its partner organization, Catholic Charities, to take on the program. Catholic Charities then reached out to one of its own associated organizations, the El Centro Family Resource Center, which is how the hundreds of homeless case files traveled through humid early-July air to that basement closet.
On the three floors above the basement, El Centro already ran English classes, youth mentorship programming, anger management groups, Alcoholics Anonymous meetings, and basic health services. By accepting the challenge of digging through the Diocese’s case files, the community center became the only organization providing full legal assistance to immigrants in Trenton. These services are especially essential in New Jersey, an historic gateway for immigrants: in 2010, some 550,000 were undocumented. That year, only fifteen nonprofits in the state provided legal aid to immigrants; with every undocumented immigrant receiving legal aid, each nonprofit would have to work with over 36,000 people. If one of these organizations were to close without replacement, it would affect thousands of lives.
Now, the boxes of case files are neatly stacked. El Centro staff members who received legal training through Homeland Security run legal counseling and citizenship courses; they know when individuals are due to adjust their status or when they have to turn in applications. But the program’s challenges mount: The demand for legal assistance grows with every passing year both at El Centro and nationally, both because undocumented immigrants continue to enter the United States and because the legal playing field for undocumented immigrants is changing. An increasing number of immigrants sought legal aid when President Obama passed his executive order for immigration reform on November 20, 2014, and immigration legislation is soon to change once more. A federal appeals court ruled this past November that Mr. Obama surpassed his authority and on June 23rd the Supreme Court upheld that decision, stating with tragic simplicity: “The judgment is affirmed by an equally divided court.”
In the context of shifting immigration policy as well as a presidential election close on the horizon, need for legal assistance is soon to increase and nonprofits like El Centro will face the brunt of that demand. Because immigration cases are civil proceedings, no undocumented individual, whether filing a claim for citizenship or facing deportation in detention, receives government legal services or representation. Some immigrants can afford to pay their own way, but marginalized groups have to turn to community organizations or risk facing the system alone.
Olga Gomez answers her phone by saying hello in English. She is from Quetzaltenango, Guatemala and is a single mother raising three children born in the United States. She works in la limpieza, the cleaning industry, and takes English classes when she can at El Centro. Years ago, Olga asked about her legal status at El Centro. The staff was honest with her: the U.S. Department of State has never granted asylum or temporary relief to Guatemalans — not when death squads targeted indigenous people in a nearly 40-year civil war resulting in a quarter million dead and disappeared; not when Hurricane Stan in 2005 decimated the livelihoods of those just getting back on their feet; not now, when the country suffers an estimated ninety-six murders per week, one of the highest violent crimes rates in Central America. Without significant changes in immigration reform, Olga has no chance of altering her illegal immigration status.
Though Olga’s legal prospects remain dim, this moment of frank legal advice is rare. Connecting with people like Olga to give such advice is Roberto Hernández’s job: He founded El Centro in 1999 and still runs the organization today, and when he isn’t meeting about grants or community partners, Hernández goes to watch the local baseball games of the largely Central American population he serves. When the Diocese of Trenton needed help with its immigration office, he didn’t pause before starting the legal program. In his everyday conversations with undocumented immigrants, Hernández hears countless stories about recent immigrants falling prey to legal scams of notarios, unqualified lawyers who make false promises of citizenship to their uninformed clients.
“We provide an alternative for them getting ripped off,” he explains. “If I had a dollar for every time someone came into El Centro and told me, this lawyer got me for $5,000, or got me for $8,000. I know one woman who got tricked for $20,000. This happens all the time.”
That’s the worst-case scenario. But without El Centro’s program the best case would be navigating the legal system alone. This is no easy feat, since applying for citizenship alone requires knowledge of English, background checks, fees, and countless supporting documents.
The stakes rise when an undocumented immigrant is detained and deemed “deportable” – deportation could involve returning to a violent home country or leaving one’s family and community in the United States. Challenging that status is daunting. The individual must appear before an immigration court and may defend himself; if he fails, he can appeal a decision to the Board of Immigration Appeals, but then must explain why the judge’s original ruling was legally flawed. Hernández explains that navigating this system independently would be “virtually impossible” for the average immigrant who walks into his community center.
Hernández isn’t alone in that opinion. Robert A. Katzmann, the Chief Judge of the United States Court of Appeals for the Second Circuit, saw firsthand the number of immigration cases steadily grow since the early 2000s. He soon realized the serious flaw of our immigration legal system: no average American, let alone members of a recently arrived, vulnerable population, can effectively navigate our legal system.
“For immigrants who may lack education, language skills, and legal training, appealing without the help of counsel is a tall order,” he wrote in Dœdalus, the journal for the American Academy of Arts & Sciences, two years ago. “There are procedural hurdles associated with navigating this process, facts to marshal into evidence, and complexities of law that can make this process difficult for those without legal training.”
Understandably, then, legal aid has an enormous impact on success in court. Without legal representation, courts cut corners. The Board of Immigration Appeals, for example, allows just one board member, rather than the typical three, to decide appeals for immigrants. It generally issues decisions about cases without providing the required explanation. No one complains because most immigrants don’t know they have the right to.
The lack of legal representation actually has an even more direct impact on court cases: the Family Court Review reports that 97% of defendants without counsel lose their cases, even those who have strong grounds to contest deportation. While on the Board of Appeals, Katzmann repeatedly rejected the badly argued appeals of low-income immigrants without representation. As cases mounted, he decided to launch the New York Immigrant Representation Study and confirmed what the Family Court Review reports: the outcomes of almost 5,000 New York City cases between 2005-2010 showed that, aside from being free from detention, legal assistance is the most important factor in an immigration case’s success. When not detained, 74% of represented immigrants win their cases. In comparable contexts, only 13% of immigrants are successful without legal aid.
These statistics point to an uncomfortable correlation: when immigrants don’t have access to non-profit legal services, their ability to afford lawyers affects the outcome of their cases. The system as it stands clearly violates the basic moral principles of our justice system, as Katzmann forcefully argues: “Justice should not depend on the income level of immigrants.”
Before coming to New Jersey and finding El Centro, Olga lived in Houston. She had just crossed the border to follow her husband, who came illegally to the United States a few months before. When she first entered the country she spoke no English and knew no American laws or customs, but she did know that she was undocumented.
Shortly after crossing the border, Olga’s husband became abusive. Olga could not reach out to relatives for support, as her entire family was back in Guatemala. She was also afraid of speaking to the police. Rumors coursed through the undocumented community, saying that if the police found out you were undocumented, they’d separate you from your children and deport you immediately without trial. Olga can’t remember exactly how old she was when she crossed the border – she was either 19 or 20. She married her husband in Guatemala when she was 15.
“I left the father of my children because he drank and hit me often. I stayed with him for a long time out of fear,” Olga recounts. “He threatened me, saying that if I left him, immigration would take away my kids. That kept me there for a long time.”
Olga hoped that the situation would improve with time, but it only worsened. Her husband began entering the room where the children slept at night to grab her and beat her in front of them. After years of domestic abuse, her children became old enough to realize what was going on, which is when Olga decided she had to risk leaving. She was able to contact her husband’s brother in Trenton and convince him of what was happening. She never spoke to American authorities about the abuse. She felt being undocumented meant she had no rights.
Olga is not alone. An anonymous Guatemalan worker, interviewed by Menjívar and Abrego, also felt as though our justice system excluded his rights. Authorities caught him in an immigration raid in Iowa back in 2008. When the worker was taken to a nearby detention center he did not understand what was going on or any details of the case against him. He kept repeating, “‘I’m illegal, I have no rights. I’m nobody in this country. Just do whatever you want with me.’”
The federal government is unlikely to grant either Olga or this anonymous worker legal status, but representation is still symbolically valuable. As Hernández explains it, a law requiring state-appointed attorneys would do more than make a difference in immigration cases. “It would send a message that these new Americans – because that’s what they are on many levels – that the system is in support of them,” he says. And if it doesn’t show the system supports them, at the very least it would say that even undocumented workers have human rights.
Still, it is incredibly unlikely that the federal government would provide legal services to all undocumented people. Immigration reform legislation that included counsel for immigrants failed last year in both the House and Senate. Most argued against this legislation under the guise of pragmatism: government-funded legal counsel would be too expensive and would overwhelm courts with new immigration cases.
The Family Court Review, though, feels that government legal services would actually increase the efficiency of our immigration system, cutting costs long-term. Trained lawyers would streamline cases: 92% of immigration judges surveyed in 2012 feel that they make decisions about immigration cases more quickly when an attorney is present. Immigrants regularly extend their cases to try to find an attorney or to prepare their cases independently; on average, these extensions keep immigrants in custody for approximately an extra 60 days. As of this year, it costs between $119 and $164 per day to keep one immigrant detained. Contrary to pragmatists’ arguments, government-funded attorneys would cut the current inefficiencies of our legal system and save the federal government money.
Why not just support existing nonprofits providing legal aid? While Olga was living in Houston there were 40 nonprofits providing legal aid to undocumented workers in Texas, but she never came across a single one of these organizations. When she moved to Trenton, Olga only heard of El Centro after the principal of a local school would not allow her daughter to enroll. At the local Board of Education, an employee of El Centro helped her navigate the problem and told Olga about the various programs El Centro offers.
Nonprofits can only serve those who know to walk through their front doors. Olga happened to find support and resources because schools connected her with the wider community, but the uneven nonprofit network is not a sustainable solution. Even the Center for Nonprofits and Philanthropy, an obvious supporter of nonprofit services, feels that the huge demand for legal services and the small number of nonprofits presents a massive problem. It states in a 2010 report that “the infrastructure for assisting undocumented immigrants with legal issues is very thin, compared to the project needs.” In the case of Trenton, that infrastructure only still exists because Hernández and his staff chose to dive into those hundreds of case files.
The report Judge Katzmann released on case outcomes and legal assistance back in 2012 ended up gaining attention. The City Council decided to test Katzmann’s theory, partnering with local nonprofits to start a yearlong pilot program in 2013 called the New York Immigrant Family Unity Project (NYIFUP). The pilot tried to test the effectiveness of universally appointed attorneys, giving $500,000 of city funds to nonprofit defenders services in Brooklyn and the Bronx. The lawyers succeeded in having eighteen removal claims dropped and twenty-one individuals released from federal custody pending decisions on their cases.
New York City made the program official in 2014. For the first time in the history of the United States, immigrants under the poverty line and facing deportation now universally receive public defenders. The defenders already work for high-quality legal aid nonprofits and have cross-cultural training. The program costs a total of $7.4 million per year, an annual investment of only 78 cents per taxpayer. As Katzmann predicted, the program saves approximately $1.9 million for New York State by decreasing detention time. In preventing staff turnover costs relating to detention and deportation, the program also saves state employers nearly $4 million.
NYIFUP is a clear example of the overall effectiveness of government-funded public defender projects. The program is not entirely comprehensive – only immigrants in detention can benefit from the services – but it proves that government legal assistance is both feasible and effective.
At 5:30 pm on a weekday, El Centro bustles with people. Rooms on each floor of the tall, spindly brick building become English classrooms; lights turn on and illuminate figures stepping out of after-work carpools in the back parking lot. Some of newcomers will speak their first words of English that evening, having spent only days in the United States. Others, after attending these classes for years, might learn the logic of past participles or read the first few chapters of The Phantom Tollbooth.
The next day, those same classrooms will transform once again, acting as the space for Alcoholics Anonymous meetings or mentorship for children. In one room, a lawyer will give advice about an appeal; in another, undocumented workers will take their first citizenship class.
The demand for these services will continue to rise, but with every challenge nonprofits like El Centro face, the individuals who need these services struggle against so much more. Bravely, they confront the daily threat of deportation, a feeling of living without any basic rights, caused by and compounded with institutionalized racism.
It’s a bravery no one asks for. Olga never wanted to raise her children without a father or to drive without a license each day to clean our houses. With that bravery she also speaks out, though, asking for her real name to be printed in this article, because just being heard might be the first step in in changing laws.
“I want to give this message to other women,” she said. “Don’t be afraid to speak out and we will raise ourselves up.”