The Shocking Lack of Due Process for Immigrants

Krystin Roehl Former Government Affairs Graduate Intern // Logan Schmidt Former Federal Policy Associate // Hayne Yoon Former Federal Policy Director
Jan 02, 2020

After Mariana, a mother of three, was detained by ICE, she described the experience as “horrible, so, so stressful. . . . When I was first detained with ICE there were so many thoughts in my mind. . . . I was so, so stressed out . . . because I put my whole life right there, in their hands, my children’s lives, my family’s.”

Mariana had no choice but to leave her three children in the care of her parents while she was detained. She initially went to court and tried to defend herself alone, but she felt physically ill and confused because she couldn’t understand the technical nature of the proceedings.

When Mariana finally received a lawyer’s services, everything changed. She said that “with the lawyer it’s just so much different, because they understand all these things.” She felt lucky and thankful for having a lawyer when so many women “would just sign the papers . . . because they couldn’t take the conditions and they didn’t have money for a lawyer.” Mariana is now reunited with her children while she awaits a decision on her case. But the separation was devastating for her family: during her detention, Mariana’s children started having behavioral problems and her parents suffered financially. Compounding the family’s trauma, Mariana’s brother took his own life while she was detained. Mariana’s story depicts how overwhelming and confusing it can be to navigate the system alone. Along with the complexity of the system, many immigrants also face language barriers.

Despite efforts to pass immigration reform legislation, progress has stalled in recent years. The U.S. immigration system is so complex that it often feels impossible to those trying to navigate it without a lawyer. Over the past two decades, immigrants have faced high rates of detention and deportation under both Democratic and Republican administrations. Individuals in criminal court proceedings have a right to counsel paid for by the government, but immigrants facing deportation have no such right under our current system. One of the most disturbing aspects of our immigration system is that most children and unaccompanied minors—more than two-thirds of all cases—are unrepresented in court. If adults have a hard time deciphering the immigration system, how can we ask children to figure it out?

As Mariana’s story shows, representation is often critical to getting detained immigrants released from custody while they are in the midst of their cases—and legal counsel is often necessary for people to succeed in their cases. Immigrants who are represented are 3.5 times more likely to be granted bond as compared to those who are unrepresented, even when other factors are taken into account. Researchers at the UCLA School of Law found that those who are detained and have representation are 10.5 times more likely to succeed in their cases than their unrepresented counterparts are. Finally, legal counsel greatly increases the likelihood that people who have been released will appear in court. Over a five-year period, the UCLA study found that only 7 percent of people with representation were ordered removed for failing to appear in court, as compared to 68 percent of those who were unrepresented. The impact that legal counsel has on immigration cases proves why attorneys are key to making the immigration system more just.

Not only is a lack of representation inhumane for immigrants, it also contributes to backlogs in immigration courts—where more than one million cases are pending nationwide. For Mariana and so many others, expanding legal representation for those facing detention and deportation has become a critical last line of defense for our immigrant communities.

Given the myriad issues plaguing the immigration system, Vera recommends implementing policies that would get at the root of the problems. Our key priorities:

  • Ensuring meaningful due process in immigration proceedings for everyone, regardless of their background. This includes providing services akin to Vera’s SAFE (Safety and Fairness for Everyone) Network—and providing them in any language required so that individuals are served in a language in which they are fluent.
  • Ending unnecessary and harmful detention of immigrants. A July Homeland Security Inspector General report found “dangerous overcrowding” at U.S. Customs and Border Protection facilities, stemming in part from a 124 percent increase in apprehensions in Texas’s Rio Grande Valley sector during the first eight months of fiscal year 2019, as compared to the same period a year earlier. Such conditions cannot be allowed to continue.
  • Investing public resources that expand access to legal counsel for people in immigration proceedings. Given the critical importance of counsel in these proceedings, our policies should focus on moving toward universal representation for everyone who is involved in them.

Expanding access to counsel is crucial for immigrants who are fighting to stay in the United States, and strides must be taken to help them. Providing representation is vital to reducing the harmful effects that detention and deportation have on communities. No one should be denied due process.