This blog post is a response to a design-thinking and race-based advocacy challenge for the Access to Justice Tech Fellowship.

“In all too many cases, I had the sense that if only the immigrant had competent counsel at the very outset of immigration proceedings… the outcome might have been different, the noncitizen might have prevailed.”

– Chief Judge Robert A. Katzmann, Second Circuit Court of Appeals

Immigrants in removal proceedings have a statutory right to counsel. Unlike criminal defendants, however, indigent immigrants are not given government-funded counsel and instead must obtain representation at their own expense. Without an attorney, immigrants represent themselves in extremely complex proceedings. Even children in removal proceedings are expected to represent themselves if they can’t afford a lawyer or find a pro bono lawyer.

There are amazing organizations that offer free legal services, like Keep Tucson Together and the Florence Immigrant and Refugee Rights Project. However, Bill Ong Hing, author of this Slate article that calls for government-funded representation, emphasizes that:

“There is simply not enough legal aid and pro bono help available for those who need it.”

So without government-funded representation, most immigrant respondents appear pro se.

The American Immigration Council reports that, based on data collected from 2007-2012, only 37% of all immigrants in removal proceedings had counsel. And just 14% of detained immigrants had counsel during this same period. Immigrants with hearings in small cities were the least likely to have representation.

We know that immigrants with representation have better outcomes.

For example, the same AIC report states that detained immigrants with counsel were 4x as likely to be released from detention than pro se detained immigrants.

In 2011, New York City piloted a pro bono agency that provided free deportation defense. According to the New York Times, “immigrants in the Varick Street Immigration Court are now 11 times more likely to win their cases than before the program began.” This program is now fully funded and, by 2017, the “rate of success — defined as the immigrant’s being allowed to stay in the United States — had risen by 1,100 percent.”

This means that there are wildly disparate outcomes depending on if you can find and afford to hire an attorney.

I’ve been thinking about this a lot in the last several weeks in relation to my fellowship project evaluating the use of video teleconferencing (VTC) technology in immigration courts (for more on this, see my previous post!).

For my project, I’m interviewing attorneys who represent immigrants detained at La Palma Correctional Center about their experiences with hearings conducted over VTC. I’ve heard some horrifying things about their experiences, which will no doubt be the subject of a future blog post. I keep wondering, though, about pro se immigrant respondents. If attorneys are reporting terrible hearings where judges mute immigrants’ VTC feeds or make verbally abusive remarks to the attorneys, what are these VTC hearings like for immigrants without legal counsel?

Pima County must follow New York City’s lead and create an Office of Immigration Representation to ensure that Pima County residents are not forced to go through complicated immigration proceedings alone. 

A system can’t purport to promise full and fair hearings without guaranteeing government-funded representation, especially when we know that outcomes vary significantly based on access to representation.

The Pima County Justice for All campaign reports that last year a staggering 98% of immigrants appearing at the Tucson Immigration Court did not have representation:

“Last year, close to 24,000 cases were processed through Tucson Immigration Court. Of those cases, 98% of people did not have a lawyer to help represent and defend them in court. These are not unknown individuals, these are families, friends, and neighbors who have been in the area, paying into our tax systems and helping build our communities, for years. Our friends are entitled to proper representation and support.”

An Office of Immigration Representation, funded by Pima County, would eradicate the disparities between immigrants with and without counsel. No one should be deported because they can’t afford a lawyer (maybe no one should be deported at all, but that’s a conversation for another day).

When I received an offer to intern for an organization that advocates for the protection of civil liberties, I felt a little like a middle schooler whose mom scored tickets to see the Jonas Brothers circa 2007. My mom never got me tickets to see the Jonas Brothers, something I don’t hold against her, but I knew classmates who went and I’m drawing on their experience here.

Then, adding to my excitement, I also was given the amazing opportunity to be a fellow in the Access to Justice Tech Fellowship program.

I am so unbelievably thankful for the opportunity to learn about lawyering from my host organization and to have the extra fellowship curriculum enhance my summer. As an A2J Tech Fellow, I am spending my summer working on a project for my host organization that centers on access to justice and technology.

My fellowship project focuses on evaluating the use of video teleconferencing (VTC) technology in immigration courts. VTC use has become increasingly common, with Ingrid V. Eagly reporting in her 2015 law review article that one-third of all detained immigrants appear for their hearings over VTC. Proponents argue that VTC makes courts more accessible, speeds judicial processes, and reduces court costs. However, many are concerned that VTC usage raises due process issues, from interfering with the detainee’s ability to confer confidentially with their attorney to technology-related delays to judges making credibility determinations off of a grainy or pixelated video feed (check out this article from the ABA Journal or this report from the Young Center for Immigrant Children’s Rights for more on this).

Side note: this topic has suddenly become even more relevant with courts not holding in-person hearings due to the pandemic. See the below video for a jury trial over VTC!

 

I live in Tucson, Arizona, about an hour from the La Palma Correctional Center (LPCC) where numerous immigrants are detained.

“It’s a dry heat!” – everyone in Tucson

Many LPCC detainees appear at the Tucson Immigration Court over VTC, unlike the detained immigrants at the Florence or Eloy detention centers who appear in person at courts on-site. The detained immigrants’ attorneys, if they have one, must choose between appearing from LPCC with their clients or being in the courtroom with the judge.

Originally, I was supposed to coordinate a court observation program in which volunteers would observe VTC hearings at the Tucson Immigration Court and document due process issues. I was excited to do some preliminary data analysis and write a report at the end of the summer explaining what we’d learned so far. This program was meant to outlive my summer internship and facilitate long-term data collection. Unfortunately, COVID-19 complicated these plans, forcing us to postpone the observation program and pivot for the time being.

Instead, my project took on two new forms. First, I am writing a memo analyzing due process challenges to immigration courts’ use of VTC. Second, I am interviewing attorneys who have represented clients detained at LPCC to learn more about their experiences with VTC. Eventually, when Arizona is no longer a COVID hotspot, hopefully we’ll be able to start the court observation program.

This project will inform immigration advocates of widespread violations and help them ensure that all individuals receive due process. It will help hold public officials accountable and improve courts’ procedures and technology use.

This VTC project is designed to make sure that every immigrant receives the full and fair hearing they are statutorily entitled to. I also want to acknowledge that the fight is bigger than this. Yes, every immigrant should have a full and fair hearing, AND they also should not be detained or subject to deportation at all. This project is at the both/and intersection of the “here we are” and the “not yet.” Massive changes need to be made and systems must be dismantled. And, also, here we are, in the moment, working to ensure that, as these big changes are made, those caught in the here and now are given the rights they are promised.  This summer I’m learning to lean into this tension; to work on improving what is in front of me while also remembering that the fight is bigger.

At the middle point of my fellowship and project, I’ve been reflecting on this: as soon to be lawyers, we must pay attention to the ways in which the legal system dehumanizes and hurts and oppresses. We must bear witness to the atrocities happening every day in immigration detention and courts, and we must use our new power, privilege, and skills to respond.