Needed in Immigration Overhaul: Counsel and Alternatives to Incarceration

Imagine that you are a lawful resident married to a U.S. citizen serviceman who is deployed overseas, and you are looking for a job to help support your family. You find one, but unbeknownst to you, your employer, aiming to expedite the hiring process, checks the “citizen” box on the application, a box that you correctly left blank. After audit, you are accused of making a false statement of citizenship status, which could provide grounds for mandatory deportation. Imagine that the allegation is never substantiated and you are never given the opportunity to explain the circumstances, but you are banished from the U.S. and from your family. Well – you don’t have to imagine all this since it’s a true account shared by Margaret D. Stock, Lt. Col. (Ret.) and counsel at Lane Powell, at a congressional briefing organized last month by the ACLU. Her client was forced to return to her country of origin and separated from her husband while he put his life on the line for the freedoms we enjoy.

This is one example of the grim outcomes caused by inflexible mandatory detention and deportation provisions created by the 1996 federal immigration law. Situations can be more crushing for those facing the process without the guidance of an attorney. The law expressly limits judicial review of final deportation orders made at the administrative level for criminal and non-criminal individuals, and eliminates certain waivers of deportation. Of the approximately 400,000 immigrants imprisoned by the Department of Homeland Security every year, many enter the system without a criminal record, or due to minor traffic violations/misdemeanor offenses, and there are hundreds of reports of green card holders being detained for long periods without any hearing. Many others, like Lt. Col. Stock’s client, are victims of technical errors that have severe consequences that are nearly impossible to remedy.

At a recent Senate Judiciary hearing entitled Building an Immigration System Worthy of American Values, those in support of our current broken system argued that the 1996 law must be maintained, resting their case on three misleading arguments:

• Myth #1 – Appointed counsel has never been provided in the civil context. This is patently false. The landmark ruling in Gideon v. Wainwright, which found that appointed counsel is a fundamental right essential to a fair trial, has been extended beyond just a criminal context via several Supreme Court decisions. These include In re Gault, which extended Gideon to civil juvenile delinquency proceedings, and Lassiter v. Department of Social Services, which established a right to appointed counsel in some civil parental termination proceedings. Juvenile incarceration and termination of parental rights are both extreme penalties and certainly justify access to counsel. But so, too, is the threat of deportation from the place you call “home.”
• Myth #2 – Appointing counsel for immigrants would be prohibitively expensive. Actually, appointing counsel for some immigrants facing deportation would almost certainly produce cost-savings in light of the considerable economic implications of over-zealous enforcement. Detention costs the government up to $60,000 per person per year – about the cost of a public interest lawyer’s salary, even though every lawyer could represent dozens of immigrants at a time (whose cases would conclude far more quickly if they were represented). Wrongful deportation also imposes other costs on the system, such as putting children in foster care. In December 2012 the Immigration Policy Center and First Focus reported that over “108,000 parents of U.S.-citizen children were removed from the United States between 1997 and 2007.” As a result, children are becoming wards of the state, and in circumstances where the breadwinner is detained, families can be forced to turn to safety net programs to make ends meet.
• Myth #3 – Mandatory detention is needed to prohibit flight. Individuals who are detained are often people with strong ties to the community and mixed-status families, making them less likely to uproot their lives. Moreover, according to recent data, immigrants who do not pose any flight risk or public safety concern are routinely detained despite the enormous cost of $2 billion to U.S. taxpayers annually and the availability of effective alternatives to incarceration. Most importantly, alternatives to detention programs have resulted in appearance rates of 90% and higher.

Access to a fair and complete judicial process must be extended to every person – citizen and non-citizen alike. The stakes are too high for individuals to be tried without the constitutional safeguards of due process. Congress must improve fundamental equity in immigration proceedings.

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