Push For Gov't-Funded Deportation Defense Gains Steam

By Mike LaSusa | May 20, 2022, 9:35 PM EDT ·

Programs that provide government-funded attorneys to noncitizens facing deportation are becoming more common in cities and states across the country, and immigration advocates hope to harness that momentum to scale up those initiatives to the federal level.

As the Biden administration plans to increase deportations in connection with the possible end of a pandemic-related restriction on border crossings, immigration advocates are pushing to build out programs that use public funds to pay lawyers from legal aid groups to represent migrants.

While advocates acknowledge political gridlock on Capitol Hill dims the short-term odds of establishing a federal program, they say the movement is gaining steam as more local jurisdictions provide funding for deportation defense.

"This is a path worth pursuing, even as we fight for the bigger picture," Kica Matos, the vice president of initiatives at the Vera Institute of Justice, told Law360.

Unlike federal criminal defendants, people in immigration proceedings don't have a right to a government-funded attorney, meaning they often rely on nonprofit legal aid organizations. But those organizations often work on tight budgets that make it impossible for them to provide a lawyer to everyone who needs one.

Some cities and states have stepped in to try to alleviate the problem by partnering with legal aid groups and directing taxpayer dollars toward their efforts to provide legal counsel to noncitizens who would otherwise have to make their case on their own against a trained government attorney.

Local access to counsel programs not only increase the fairness of individual deportation proceedings, but also serve as a check on the whole system, said Lindsay Nash, the co-director of the immigration clinic at Yeshiva University's Benjamin N. Cardozo School of Law.

"They can identify major problems and major violations of regulations, of laws, of the Constitution, that are happening in immigration court in a way that would never happen if there weren't lawyers in there seeing a large number of cases and being able to identify trends and recurring problems," Nash said.

Since New York City launched a seminal pilot initiative in 2013, dozens of cities and counties around the country have implemented similar programs.

In April, San Diego became the first border county in the nation to launch a publicly funded deportation defense program. And earlier this month, the city of Los Angeles cemented a pilot program to provide its noncitizen residents with free legal counsel in deportation proceedings.

The next stage of the fight, advocates say, will focus on establishing statewide programs to provide universal representation for noncitizens facing deportation.

Colorado and Nevada both passed bills last year that will provide some state funding for deportation defense. But neither piece of legislation goes as far as the Access to Representation Act, a bill being considered by lawmakers in New York state that would create a right to free legal representation for anyone in New York who is facing deportation and can't afford a lawyer.

Enshrining the right to an attorney in the law would eliminate uncertainty around funding streams for deportation defense programs, said Nicole Catá, the director of immigrant rights policy at the New York Immigration Coalition, which backs the bill.

"Year after year, we have to continue to fight for funding for these programs," Catá said. "It puts legal service providers in an untenable position where some of their cases are taking well over a year to resolve, so they're not sure how much to budget for."

Proponents of access to counsel are also exploring other models for providing deportation defense at the sub-federal level.

Earlier this month, a coalition of immigrant legal aid groups created the Midwest Immigrant Defenders Alliance, or MIDA, in partnership with the public defender's office in Cook County, Illinois, which already has a program that represents immigrants in both county court and in the Chicago immigration court.

The MIDA pilot initiative will provide free legal counsel to noncitizens one day a week in Chicago immigration court, which handles cases of migrants from around the Midwest, including Wisconsin, Indiana and Kentucky.

The groups involved in the coalition say they hope their work will inform the findings of a task force set up this year by the state of Illinois to study the possibility of creating a statewide deportation defense program.

"The goal is to study what the program is able to accomplish in this pilot year and hopefully scale up to get to a point where we can guarantee counsel for anyone who is unrepresented and cannot afford private counsel," said Ruben Loyo, associate director of the detention project at the National Immigrant Justice Center, one of the groups involved in MIDA.

Still, advocates say the federalized nature of the immigration enforcement system means statewide and even regional programs may not be able to address gaps in representation that can occur when a noncitizen is transferred from one detention facility to another.

President Joe Biden's administration has thrown its support behind the idea of increasing noncitizens' access to counsel. Last year, the U.S. Department of Justice urged immigration judges to support pro bono work, and Biden's most recent budget proposal called for $150 million to support access to legal representation in the immigration courts, with a proposal to extend the program for 10 years.

But advocates say the political radioactivity of immigration makes it unlikely that Congress will establish a federal deportation defense program in the near future.

"It shouldn't be something that's politicized, but it is," said Viviana Westbrook, the state and local advocacy attorney at the aid group Catholic Legal Immigration Network Inc., or CLINIC. "A lot of states, with immigration, have decided we can't wait. We need to move forward."

--Editing by Jill Coffey.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!