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Opinion: The Tragedy and Travesty of Undocumented Children

Having an attorney present during immigration proceedings tips the scales of justice in favor of remaining in the United States

potter
Credit: Amanda Brown
R. William Potter

Imagine you are a 12-year-old boy from Syria living with relatives in Jersey City, home to thousands of law-abiding foreign-born residents, when you are thrown into a Kafkaesque nightmare that is a daily reality for thousands of asylum-seeking refugees.    

In the predawn hours you are hustled out of bed by gun-toting “immigration police.” You are handcuffed, taken to a jail and told to await a hearing which, when it comes, is video conferenced at a euphemistically called “detention center,” where you are treated no differently than a prisoner convicted of a serious felony.

At last an immigration judge appears on a video screen and says, you get 2-3 minutes to explain why you fit within one of the few statutory categories for obtaining legal refuge status. You stammer in broken English your story about fleeing the Syrian civil war where your parents were killed, until the judge abruptly cuts you off. You are promptly “convicted” of being here illegally and quickly condemned to deportation.

Now imagine a very different scenario if you have an attorney knowledgeable in immigration law to represent you at the hearing. 

According to Seton Hall Law School professors Farrin Anello and Lori Nessel, writing in the February edition of “New Jersey Lawyer” dedicated to immigration law, you can expect a very different outcome:

“Legal representation correlates with dramatically higher rates of success in avoiding removal from the United States. Immigrants with representation, detained or otherwise, were at least three times as likely to obtain a successful outcome as those [without] … Among those who were detained without a lawyer, only 14 percent  avoided removal; whereas [those with] legal representation prevailed in 49 percent of the cases.” 

And among persons who were not detained, but charged with deportable immigration offenses — such as overstaying a visa — the success rate was a whopping 92 percent for those with an attorney to argue their case and present witnesses at the hearing, compared with only a 31 percent success rate for people who had to act as their own attorneys.

In spite of the severe penalty of deportation — banishment and exile by another name — for failing to persuade an immigration judge (actually an employee of the attorney general’s office who serves as judge, jury, prosecutor, and executioner) that you fit within a protected asylum class, such as fleeing religious persecution, you have no constitutional right to an attorney if you can’t afford one.

That’s right. No lawyer for you if you’re too poor. And without a lawyer to defend you, as an undocumented asylum seeker you can be deported, taken from family and home after an assembly-line process that resembles “trying death-penalty cases in traffic court,” as one immigration law judge described the process during a congressional oversight hearing.  

According to law professors Anello and Nessel, “as immigration law is currently applied, even children as young as 1 or 2 years of age are frequently placed in removal proceedings — and ordered removed — without legal representation.”

Incredible. How can this kind of systematic injustice be tolerated in “the home of the brave and land of the free”?  In 1963 the U.S. Supreme Court handed down Gideon v. Wainwright, holding that every person charged with a serious crime has a constitutional right to a court-appointed attorney, even if you can’t afford to pay one. That principle has been a pillar of our judicial system ever since.

Four years after that seminal decision, New Jersey became the first state in the nation to establish a public defender system that endures to this day — 50 years later to the day on May 1 — maintained and funded through Republican and Democratic administrations alike.

So the question is an obvious one — why not provide for public defenders to represent and assist undocumented immigrants facing deportation if they lack the means to hire their own attorneys?

Professors Nessel and Anello shower praise on pro bono lawyers who attempt to fill this critical void, singling out “a working group aimed at increasing immigrant representation in New Jersey, spearheaded by Judge Michael Chagares of the U.S. Court of Appeals for the Third Circuit.”

They also note the “launch of a universal representation project for detained New York City residents jointly funded by the City Council and American Friends Service,” but the professors admit that “New Jersey’s immigration legal providers are notably under-resourced and lack sufficient free and low-cost legal services to address the huge numbers of cases filed in immigration courts in this state.” 

Which brings us back to the state public defender system. If you can receive free legal aid from a criminal defense attorney when facing a “drunk and disorderly persons” offense with a maximum six-month jail term, why can’t you obtain a court-appointed lawyer when faced with deportation?

Short answer: The absurd fiction that deportation is not punishment for a crime.

For more than a century the courts have held that deportation is not a criminal offense, it’s a civil remedy for a civil offense, like jay walking or a zoning-code violation. And since it’s not criminal, there’s no right to counsel or even to due process of law, such as a putative purse snatcher or shoplifter is entitled to receive.    

Of course, the increased cost of expanding public-defender services to include immigration cases is a valid concern.  But can you ever put a price tag on humanity? And what about the cost of deportations in the Garden State, including the 15,000 children in state-funded foster care since 2011 after their parents were deported, according to a recent study cited by Nessel and Anello.

The Democratic-controlled state Legislature is poised to enact a law to provide state funds to any “sanctuary city” that is penalized by the Trump administration for not assisting immigration agents in rounding up suspected undocumented immigrants. State legislators should also consider funding lawyers in deportation hearings, if not for everyone then at least for the many children caught in a Kafkaesque web.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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