The typical low-income defendant can have difficulty securing legal counsel, despite their right to have it. Public defenders are often overworked, and there aren’t typically enough of them to go around. This emerging system of government-sponsored immigration counsel won’t add to the burden, because the funds will be funneled to nonprofit legal organizations that have experience in the courts. (An exception is San Francisco, where the money will be used by the public-defenders’ office to hire immigration lawyers.)
These groups could also be stretched thin, especially over time. But any counsel may be better for defendants than no counsel at all: To contest deportation without even bare-bones legal representation is to do so with “hands tied behind their backs and their eyes blindfolded,” said César Cuauhtémoc García Hernández, an associate professor at the University of Denver’s Sturm College of Law, who supports the new funds. Deportation proceedings involve “complex legal questions that most of us who are not lawyers don’t have a clue to know how to navigate. In fact, ones that most lawyers—if they’re not immigration lawyers—have a very hard time navigating,” he said. For that reason, these city and state programs have the potential for “enormous impact.”
A 2015 national study published in the University of Pennsylvania Law Review reported that detained immigrants with legal counsel were 10 times more likely to be granted legal residency than those without. For immigrants who were not detained, those with a lawyer were five times more likely to avoid deportation than those without. As it stood then, only 37 percent of undetained immigrants were able to secure representation during deportation proceedings; that number fell to 14 percent for immigrants in detention.
This new batch of immigrant-defense funds are based on a model developed in New York City. The New York Immigrant Family Unity Project, launched in 2013 by the Vera Institute of Justice and funded by the city, won 31 percent of the cases it represented between November 2013 through June 2016, according to as yet unpublished data from the institute.
Local officials have needed to adjust the model to fit their needs. Take California, where a debate is still playing out at the city, county, and state level over which people the defense funds should cover. Some lawmakers have said that criminal history should be a disqualifier, arguing that it is a waste of public dollars to provide support for defendants who have less of a chance of winning. That argument has drawn opposition from immigrant-advocacy groups and legal organizations, who say that grounds for deportation aren’t always so clear-cut and that denying services for this reason violates due process.
Carmen Iguina, a staff attorney with the American Civil Liberties Union, said proposed disqualifying convictions have included offenses as grave as rape and murder, but also relatively less serious crimes like burglary. The latter class, she said, doesn’t necessarily lead to deportation—particularly if a lawyer is in place to negotiate a plea deal or describe any extenuating circumstances to a judge. In some cases, “even if you have one of those convictions you still have a path to release,” Iguina said.
To her, it would seem, the process of picking favorites undermines the philosophy behind the funds. The lawmakers’ work can perhaps be summed up as part social-justice quest, part political statement. “Someone’s life or liberty is at stake. We have decided as a society to support indigents, to fund that defense,” Iguina said. “Providing exclusions feeds into a rhetoric about who deserves representation and who doesn’t.”