Ideally, programs would be able to represent everyone in need, but smaller programs must have some strategic parameters to balance the reality of limited resources with a commitment to the principles of universal representation. SAFE launched in 2017, with a goal of replicating the practices that had proved successful in NYIFUP in local jurisdictions around the country. Those practices—which are reflected in this section and are consistent with practices that Vera’s federal representation programs use—prioritize zealous full-scope representation at the program’s inception, with an eye toward growing to scale. SAFE promotes these practices while also recognizing that programs may need to adapt them to meet local context and respond to community needs, particularly when the programs are not fully funded. Some of these adaptations are suggested later in this module. Although these guidelines may be particularly useful for providers in developing and implementing programs, they can also help government officials and advocates consider and advise on program design.

Develop “merits-blind” systems to identify prospective clients

When funding levels limit the capacity of providers, programs implementing the universal representation model must identify how many people they can represent and then determine how to offer representation to potential clients without considering the merits of their legal cases. This typically includes offering representation on a first-come, first-served basis or through some form of randomized selection.^[]Without true universal representation, there will always be some unavoidable arbitrariness as to who receives representation. If only certain people attend the "Know Your Rights" session that is the basis for referrals, for example, the referral system has created an unavoidable bias that will systematically exclude other people. Moreover, providers should communicate the principles of the merit-blind intake system to those referring potential clients, to make sure they are not triaging—a process that would undermine the program’s ability to provide everyone an equal opportunity to be served.

Merits-blind intake systems reduce bias in the distribution of legal services and help ensure that everyone has equal access to the opportunity to be represented, including those who have had prior contact with the criminal legal system and people who ultimately do not pursue a defense to removal. This type of intake system ensures that people who have viable defenses or claims to relief are not excluded from representation based on an initial consultation; a comprehensive analysis of someone’s options is not always possible until the client develops sufficient trust in their attorney to disclose all relevant facts. Merits-blind intake also lays the groundwork for a truly universal public defender system by exposing providers to a broader cross-section of people who need defense and the wide variety of claims they present, thus enhancing providers’ expertise and allowing them to scale up more easily when funding increases.

Programs have different approaches to where and when they encounter potential clients. Some, like NYIFUP, begin by meeting their clients at a court docket. The Varick Street Immigration Court staff gave providers the names of people who were appearing for their first court hearings without attorneys and initially set aside space within the court where they could consult with potential clients and offer them representation. During its pilot year, NYIFUP staff covered the dockets once a week: anyone on the docket that day who was income-eligible and unrepresented was offered representation. The program stopped taking new clients once staff had reached the agreed-upon caseload. Now that NYIFUP has grown to scale, its attorneys maintain a daily presence at the court to identify unrepresented people; later, they screen potential clients and offer representation to all eligible people at the detention center.^[]In June 2018, following a small protest directed at national immigration policies, ICE stopped allowing people who are detained to appear in person at the Varick Street Immigration Court. This had the severe consequence of depriving people of their due process right to appear in person for their court hearings. NYIFUP has adapted by screening and offering representation to people at detention facilities. See Liz Robbins, “New Yorkers Facing Deportation Lose Their (Physical) Day in Court,” New York Times, June 27, 2018, https://www.nytimes.com/2018/06/27/nyregion/new-york-immigrants-deportation-video-hearings.html.

Because NYIFUP is a court docket-based program, it primarily serves people in detention who are in deportation proceedings before an immigration judge.^[]See generally 8 U.S.C. § 1229, 1229a. Administrators might also expand the scope of their programs to represent people who do not have an automatic right to see an immigration judge and therefore face fast-tracked deportation because of their immigration or criminal court history.^[]See generally 8 U.S.C. §§ 1182, 1225(b)(1)(A), 1227, 1228, 1229, 1229a, and 1231. The state of New York did just that: the upstate NYIFUP, which initially focused on those who are detained and have an automatic right to see an immigration judge, now includes some state funding for people who are subject to fast-tracked deportation. New York City and the state have also increased their investments in legal representation for people without this right through two additional rapid-response initiatives.^[]New York City Mayor’s Office of Immigrant Affairs, “MOIA & ONA Announce $1M Investment in Rapid Response Legal Services for Immigrants Facing Imminent Deportation,” press release (New York: New York City Mayor’s Office of Immigrant Affairs, September 26, 2019), https://perma.cc/VS45-Y3ZH; and Office of New York State Governor Andrew M. Cuomo, “Governor Cuomo Announces New Measures to Assist Immigrants and Protect Them from ICE,” press release (Albany, NY: Office of New York State Governor Andrew M. Cuomo, March 14, 2019), https://perma.cc/4XH2-5G5Q.

Many SAFE programs meet their clients at local detention centers through a combination of “Know Your Rights” orientations, Legal Orientation Programs that make pro bono referrals, detention hotlines, and referrals from other organizations.^[]The Legal Orientation Program (LOP) educates detained immigrants about their rights and the immigration court process so that they can make informed decisions about their legal cases. Eighteen legal service providers offer orientations about defenses against deportation and the court process and help people find pro bono representation. The U.S. Department of Justice’s Executive Office for Immigration Review funds LOP; Vera administers the program—which operates at 43 detention facilities—and the national LOP Information Line. The LOP presence within detention facilities has been pivotal for pilot programs, providing the infrastructure necessary to reach people, educate them about local universal representation programs, and facilitate referrals. This approach has proved necessary because securing collaboration from the courts and detention staff to connect unrepresented people with legal programs can be a challenge. Significant barriers to accessing legal counsel remain for people in detention centers who are unrepresented, despite national detention standards and ongoing litigation to enforce them.^[]ICE has published several sets of national detention standards, including standards for access to counsel. See U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), National Detention Standards for Non-Dedicated Facilities (Revised 2019) (Washington, DC: ICE, 2019), https://perma.cc/9ZYL-H428; ICE, “2008 Operations Manual ICE Performance-Based National Detention Standards,” https://www.ice.gov/detention-standards/2008; and ICE, Performance-Based National Detention Standards 2011 (Washington, DC: ICE, 2016) (rev.), https://perma.cc/FLE8-D6PU. For a discussion of the standards that implicate access to counsel, see American Bar Association, Access to Counsel in Immigration Detention in the Time of COVID-19 (Chicago: American Bar Association, 2020) https://perma.cc/ME3M-E5H9. Also see American Civil Liberties Union, “Lawsuit: ICE Detention Centers Deny Detainees Contact with Attorneys,” press release (Los Angeles: ACLU Southern California, December 17, 2018), https://perma.cc/W3B7-8A35. By creating inroads into the detention center, legal programs can reduce those barriers, make people aware of the program, and enable them to meet providers soon after they are detained. Rapid response networks serve as an important referral source for people with or without an automatic right to see an immigration judge, in order to identify and serve them as quickly after detention as possible. Many SAFE programs have been particularly interested in including people subject to fast-track deportation because the Trump administration targeted longtime community members with prior deportation orders.

Design intake systems collaboratively

Providers are typically the primary coordinators of intake systems, given that they usually have access to detention centers and detention hotlines. But intake systems can be even stronger when they are collaboratively designed and implemented with CBOs. Trusted organizations—often the first to be notified by a loved one if someone is arrested and detained—can help connect people in need of services with the local program, serving as a crucial source of referrals. But without full funding, providers will have limited capacity to meet the demand for all community referrals; doing so requires clear and continued communication between providers and CBOs so that those organizations can set realistic expectations for the people they serve. Collaboration with those who helped advocate for the programs in the first place also helps ensure that providers are accountable to the people they were funded to serve.

In Chicago, for example, the Legal Protection Fund allocates money to providers to represent people in detention and allocates training resources to CBOs to train local leaders as “community navigators.” Under the Community Navigator Training Program, pioneered by the Resurrection Project and the National Partnership for New Americans, immigrant community members who are not attorneys receive specialized training to provide immigration services (including “Know Your Rights” presentations and assistance completing applications) and conduct outreach.^[]See National Partnership for New Americans, “Community Navigators,” https://partnershipfornewamericans.org/community-navigators. Because community navigators are rooted in affected communities, they are often trusted and the first ones to know when someone is detained. They can quickly make a referral to the National Immigrant Justice Center, a provider in Chicago that has expertise representing residents in detention.

Begin representation as soon as possible and continue representation through the life of the case

People who remain detained by authorities typically move quickly through the immigration system; nationwide, their median case completion time was 46 days in 2019.^[]Executive Office for Immigration Review Adjudication Statistics, “Median Completion Times for Detained Cases,” https://www.justice.gov/eoir/page/file/1163621/download. If attorneys do not intervene quickly, people’s cases could end without them ever having had access to representation and an opportunity to meaningfully fight deportation. Programs should be designed to facilitate full-scope representation as soon as possible after the person is detained or the charging document is filed. Providing representation early on allows attorneys to provide critical information and empowers people to make informed decisions about pursuing release from detention, fighting their case, and/or returning to their country of origin. Programs should also provide representation of people they encounter at later stages of their proceedings, as long as the attorney has sufficient time to adequately prepare for trial.

Establishing representation early and maintaining that relationship through the life of the case provides continuity and fosters trust with the client. It can often take several meetings before clients reveal information crucial to their defense because the underlying issues may involve events that are deeply personal, traumatic, or both. As described in this module, a client’s case may require multiple legal interventions and extend into appeals. People are best served when there is continuity of legal representation; a program should support that continuity and provide representation after clients are released from detention on bond.

Close collaboration between attorneys and trusted CBOs can also help foster trust and enhance representation and client support in the aftermath of detention and throughout the case. For example, CBOs can help families locate loved ones in detention and explain how to contact, visit, or send money to them. They can also provide referrals for the nonlegal needs families may have as a result of detention or even meet immediate needs with in-kind donations. These organizations can work with legal teams to help gather evidence in support of a client’s case—such as letters of support to demonstrate community ties—or by organizing a strong presence at a bond or removal hearing or even raising funds to pay for bond.^[]For more information about how CBOs can support people after they are detained, see Make the Road New York, Deportation Defense Manual (New York: Make the Road New York, 2017), 45-49, https://perma.cc/AQ38-SPYM. In addition, CBOs, in conjunction with the detained community member, their loved ones, and the attorney, may also decide to launch a public campaign to try to prevent someone’s deportation or demand their release from detention. (See “The flow of immigration court cases” below or download here.)

Commit to funding collateral proceedings before state and federal courts and across immigration agencies

Defending someone against removal is extremely complex and can require an attorney to present multiple claims—sometimes in multiple courts—to terminate a person’s proceedings or meet the high burden of proof needed to win relief in immigration court.^[]Unlike in criminal court, where the government has the burden of proving “beyond a reasonable doubt” that someone committed a crime, in immigration court people typically carry the burden of proving that they are eligible for relief to remain in the United States and that relief should be granted as a matter of discretion. Immigrants must do this in the context of a trial, unlike in criminal court, where many cases end in plea bargains. See INA § 240(c)(4)(A); 8 CFR § 1240.8(d). For a more detailed discussion of the various burdens of proof in immigration court, see Catholic Legal Immigration Network (CLINIC), Practice Advisory: Rules of Evidence in Immigration Court (Silver Spring, MD: CLINIC, 2020), 3, https://perma.cc/CY73-LWVJ. Representation through forums outside of immigration court (“collateral proceedings”) should be funded in order to realize the vision of every person receiving a zealous defense:^[]Because many smaller programs have not been sufficiently funded to cover collateral proceedings, some providers engage pro bono support in these areas.

• Representation in other forums required to apply for relief from removal: An important part of removal defense is applying for relief from removal, which sometimes requires representation before the U.S. Citizenship and Immigration Service (USCIS), a branch of the U.S. Department of Homeland Security separate from the court system. In some cases, young people must obtain a judicial order from a family or state court to qualify for Special Immigrant Juvenile Status, a form of relief USCIS grants to young people who have been abused, abandoned, or neglected.^[]8 U.S.C. § 1101(a)(27)(J).
  
• Habeas corpus litigation: Habeas corpus litigation—federal litigation that can secure someone’s freedom when they are detained in violation of their constitutional rights—is a critical legal tool for detained removal defense. This type of litigation provides an important check on the immigration detention system. It has been essential in gaining release for people during the COVID-19 pandemic, when detention conditions have become unconscionably dangerous. It has also been effective in challenging unfair laws that perpetuate an ever-growing immigration detention system, such as mandatory detention, a statutory scheme that subjects people to detention for months and years without an opportunity for a judge to review their custody. Such litigation can have a broad impact, providing avenues for release from detention for many people beyond an individual bringing a claim.
• Post-conviction relief: Two federal laws enacted in 1996 significantly increased the criminalization of immigrants and expanded the intersection of the criminal legal system and the detention and deportation system.^[]The Illegal Immigration Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act are a pair of immigration laws Congress passed and President Bill Clinton signed in 1996. For more information, see Immigrant Justice Network, Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild, “Fix ’96: End the Mass Criminalization of Immigrants,” April 28, 2016, https://perma.cc/8MTK-BH3Q; Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208 (1996), https://perma.cc/C5SX-WL75; and Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (1996), https://perma.cc/74FF-5BC3.

As a result, many immigrants today face the threat of deportation because of a criminal conviction—a disproportionately harsher consequence than what is exacted in criminal court for the same conduct. In some cases, this type of conviction can also prevent people from gaining lawful immigration status for which they would otherwise be eligible, subject them to mandatory detention, and permanently bar them from returning to the United States.^[]For extensive information and resources about the intersection of criminal and immigration law, see the Immigration Defense Project website at https://www.immigrantdefenseproject.org. These laws and related policies have inflicted harm on hundreds of thousands of people and caused the world’s largest civil detention system to balloon even further.^[]Emily Kassie, “Detained: How the United States Created the Largest Immigrant Detention System in the World,” The Marshall Project and The Guardian, September 24, 2019, https://www.themarshallproject.org/2019/09/24/detained.

Overturning a conviction in criminal court or modifying a conviction or sentence through a process known as “post-conviction relief” can help remove these obstacles and lead to positive outcomes in a person’s immigration case. This work is especially important given that people sometimes plead guilty to a crime without understanding the immigration consequences of the conviction, in violation of their constitutional rights.^[]Padilla v. Kentucky, 559 U.S. 356 (2010), established that the Sixth Amendment right to effective counsel requires a criminal defense attorney to advise their client of the potential immigration consequences of pleading guilty to a criminal charge. Immigration attorneys can work with local public defenders, criminal defense attorneys, or even district attorneys’ offices to aid in this area of practice. Some providers, such as the Immigrant Defenders Law Center in Southern California, have staff attorneys who specialize in post-conviction relief.^[]Immigrant Defenders Law Center, “Post-Conviction Relief Program,” https://www.immdef.org/pcr.

Post-conviction relief is an important way to address the criminal legal system’s harms that disproportionately impact communities of color. Because Black people are more often subjected to policing, arrest, conviction, and harsh sentences, Black immigrants are also more likely than people of other races and ethnicities to be subjected to deportation on the basis of criminal history.^[]See Juliana Morgan-Trostle and Kexin Zheng, The State of Black Immigrants—Part II: Black Immigrants in the Mass Criminalization System (New York: Black Alliance for Just Immigration and NYU School of Law Immigrant Rights Clinic, 2016), https://perma.cc/NHM8-CFFZ. Post-conviction relief presents the opportunity to challenge convictions and sentences and mitigate the expansive immigration consequences people suffer as a result of discrimination in the criminal legal system. This process can disrupt what might otherwise be an unchallenged arrest-to-deportation pipeline.

Appellate representation advances favorable case law and provides a critical check on the immigration court system

An immigration judge’s decision is not always the final step in the process. Both the government and an immigrant may appeal a decision to the Board of Immigration Appeals (BIA), although someone fighting their case while detained is usually required to remain in detention throughout the lengthy appeals process. It is nearly impossible to know whether someone has adequate grounds to file an appeal—or to win an appeal—without representation. In many courts, government attorneys automatically appeal every decision that favors the person fighting deportation. Such tactics demonstrate the power and imbalance of a system that always has representation for the government but not for the noncitizen; due process is easily undermined without parity in legal services for people facing deportation. In light of this, representation programs should factor in resources to continue representation through BIA appeal when the client has a viable claim they would like to pursue.

After a BIA decision, either party can appeal to the U.S. Court of Appeals (the federal appellate court). Because immigration judges and the BIA are part of the executive branch’s Department of Justice, an appeal to the Court of Appeals presents the first opportunity for a court within the judicial branch to review the case. Appeals can lead to positive new case law that can benefit large numbers of people and provide an important check on the immigration court system, one that—because it is housed within the U.S. Department of Justice—is increasingly politically polarized, raising concerns about bias and abuse of discretion.^[]Even immigration judges have publicly decried the politicization of their courtrooms and asked for the creation of independent immigration courts situated outside of the U.S. Department of Justice. See Dana Leigh Marks, “I’m an Immigration Judge. Here’s How We Can Fix Our Courts,” Washington Post, April 12, 2019, https://www.washingtonpost.com/opinions/im-an-immigration-judge-heres-how-we-can-fix-our-courts/2019/04/12/76afe914-5d3e-11e9-a00e-050dc7b82693_story.html. Ideally, a universal representation program can offer representation at this stage. Because of limited capacity and how practices in federal appellate courts differ significantly from those in administrative immigration courts, it may not be possible to develop in-house expertise to provide federal appellate representation when a program launches. If that is true, programs might consider partnering with law school clinics and law firms engaged in pro bono work to place these appeals with free, high-quality legal counsel.

Those who work with universal representation programs are also well positioned to notice patterns and gather information that may lead to or support other efforts to defend people in detention or limit the expansion of detention. This may happen through class-action litigation, congressional briefings, media awareness, and other campaigns. Providing staff opportunities to connect their individual legal representation to advocacy for systems change can also improve staff morale and feelings of efficacy.