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"Those facing deportation have no constitutional right to appointed counsel." (Photo by John Moore/Getty Images)

"Those facing deportation have no constitutional right to appointed counsel." (Photo by John Moore/Getty Images)

Lawyering Up on Immigration in the Trump Era

Immigrants are uniquely vulnerable to efforts to undermine the rule of law

Richard RodriguezJoy Moses

Pablo Villavicencio lives in New York City with his wife and two daughters, ages two and three. He supports his family by delivering pizza and pasta for Nonna Delia’s in Queens. In early June, he delivered an order of food to Fort Hamilton in Brooklyn. But when he arrived, the security guard questioned him, asked for various documents, and then called the police—who discovered that he had an outstanding ICE warrant and arrested him. Although his wife is a U.S. citizen, and one of his young daughters has a serious heart condition, he was detained in New Jersey and set to be deported to Ecuador forthwith.

A few days later, lawyers from the Legal Aid Society of New York got involved. They asked a federal court to block the deportation. In response, the court granted a temporary restraining order, ordered the government to justify the deportation, and eventually released him from custody during a late July hearing. Although Villavicencio’s ultimate fate is unclear, he is protected—for now—thanks to fast-acting lawyers who help those in need.

These lawyers are not alone. Lawyers are in court challenging the Muslim Ban, revocation of Temporary Protected Status, and family separation. The ACLU and the University of Chicago have issued an investigative report detailing abuses suffered by unaccompanied minors. The Hispanic Bar Association of D.C., the National Hispanic Bar Association, and other Bar Associations of Color have lobbied Congress. And lawyers from across the country are representing individual immigrants directly.

Yet despite the efforts of these and many other lawyers across the country, basic legal protections for immigrants are increasingly at risk. The Administration has threatened to abolish important legal-assistance programs. Recently, the President called for immigrants to be deported without any legal process. Meanwhile, his administration is demanding that parents leave the country if they want to be reunited with their kids—essentially holding children hostage to get their parents to surrender their day in court.

Indeed, immigrants are uniquely vulnerable to efforts to undermine the rule of law. Those facing deportation have no constitutional right to appointed counsel. The Sixth Amendment applies only to criminal cases; deportations are civil disputes, even when an immigrant is locked up.

Some immigrants are eligible to receive legal aid from the federally-funded Legal Services Corporation (LSC), the largest funder of civil legal aid for low-income people. But Congress long ago restricted this aid in ways that make it difficult for legal-services organizations to help immigrants. For instance, grant recipients cannot pursue class actions or lobby governments. And since 1996, they have been largely unable to represent people who are not U.S. citizens—with only limited exceptions for certain groups, including those who are victims of battering, extreme cruelty, sexual assault, or trafficking. Even this limited aid is increasingly endangered: Each of the last two years, the President has sought to eliminate LSC. The program has thus far survived and even slightly expanded, but efforts to get rid of it may well reemerge.

Then, earlier this year, the Justice Department announced, and then reversed, plans to suspend the Legal Orientation Program (LOP). LOP offers legal assistance and referrals to detained immigrants facing deportation. Eliminating LOP would have devastated vulnerable people. Right now, 86 percent of immigrant detainees have no lawyer; every year, LOP helps to meet these unmet legal needs for more than 50,000 people.

What is more, the stated basis for suspending LOP—to study its cost-effectiveness—was especially dubious. The Justice Department evaluated LOP in 2012. It concluded that detained immigrants who received advice from LOP finished their court proceedings faster and spent an average of six fewer days locked up, and that the program hence saved the government more than $17.8 million every year. Based on these results, a DOJ-hired consulting firm suggested expanding LOP.

Fortunately, the legal community fought back. Legal-service providers and their allies lobbied Congress. Members of Congress quickly responded, with one letter signed by more than 20 senators, and another—a rare bicameral letter—signed by all Democrats on the House and Senate Judiciary Committees. Ultimately, DOJ bowed to the pressure and reversed its decision to end the program—albeit pending further review.

While fighting the latest Administration’s proposals, lawyers must continue to fight to affirmatively expand access to justice. Some non-profit groups are trying to use new money and pro bono volunteers to build an army of lawyers to represent immigrant clients. Cities such as the District of Columbia and San Francisco have been allotting new funds for immigrant defense.   And legal-aid advocates continue to pursue research and advocacy campaigns to end restrictions on the work of LSC.

You too can be involved.   Stay informed by engaging with groups like the American Immigration Lawyers Association, Immigrant Justice Campaign, Hispanic Bar Association, ABA, and National Legal Aid and Defender Association.  Join their e-mail lists, follow them on social media, and read their materials. It also helpful to donate your time—in D.C. and other areas, local bar associations can often provide information about where to volunteer.  With more threats looming, lawyers and their allies will need to stay one step ahead of efforts to undermine immigrants’ rights and access to justice.                                                                                                                                                                                                                                                                                                                                                                                                


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Richard Rodriguez

Richard Rodriguez

Richard V. Rodriguez is an Assistant Attorney General at the Office of the Attorney General for the District of Columbia (OAG). Currently he is a trial attorney in the Office of Consumer Protection, working on consumer financial protection cases, such as housing, debt collection, loans, and the sharing economy.

Joy Moses

Joy Moses

Joy Moses is an attorney and board member of the Washington Council of Lawyers.

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