‘It’s a harsh system’: Immigration courts inch closer to offering automatic legal representation

McALLEN, Texas (Border Report) — Migrant advocates are cautiously optimistic that a recent order by President Joe Biden to expand legal representation for civil cases could one day be extended to immigration courts. But they tell Border Report that, instead of lawyers, it might involve assigning advisers knowledgeable in immigration proceedings.

Biden last week signed a memorandum to expand access to legal representation and the courts aimed at helping low-income residents gain access to legal counsel to help them fight evictions, consumer fraud and to help them mount a better defense in civil courts, where public defenders are not assigned. In making the announcement, Biden also said he hopes it will be used for “helping an unaccompanied child seek asylum.”

That sentence is giving migrant advocates hope that perhaps asylum-seekers who are not U.S. citizens will one day be afforded a court-appointed attorney in U.S. immigration courts.

Currently, migrants apprehended for illegally crossing into the United States have the right to hire an attorney, but one is not automatically provided for them in immigration courts. That’s a fact that not everyone knows, says immigration lawyer Charlene D’Cruz, adding that most people believe that defendants who cannot afford legal counsel are afforded one. But that is not the case in immigration courts, which work far differently from other U.S. courts.

“You need somebody who knows the law,” D’Cruz told Border Report on Monday.

“Generally, most people don’t know the intricacies of the law to the point of self-representation and then you’re up against a lawyer from the government,” said D’Cruz, a lawyer with the nonprofit Lawyers for Good Government who offers free legal aid to migrants in Matamoros, Mexico, and helps them cross into Brownsville, Texas. “There’s some disparity in that. For migrants who don’t have a lawyer acting as their own … it’s a harsh system.”

A group of unaccompanied migrant youth are loaded onto a bus April 6, 2021, after being apprehended by U.S. Border Patrol in La Joya, Texas. (Border Report Photo/Sandra Sanchez)

Immigration courts fall under the U.S. Department of Justice’s Executive Office for Immigration Review. And crossing illegally into the United States is a misdemeanor crime, not a felony crime, unless the asylum-seeker has been apprehended multiple times.

These courts have come under criticism as a recent influx of migrants, especially young children, are crossing the Southwest border from Mexico into South Texas, and requesting asylum. But some children, barely out of diapers, are appearing in court hearings by themselves without legal representation, and migrant advocates say they are unaware of complex U.S. immigration laws and need legal advice.

A migrant child is seen on Feb. 3, 2021, at the Humanitarian Respite Center in McAllen, Texas. The child was legally released into the United States with her mother who is applying for asylum and will face upcoming U.S. immigration court hearings. (Border Report Photo/Sandra Sanchez)

Jim Harrington, a retired law professor from the University of Texas at Austin, and founder and director emeritus of the Texas Civil Rights Project, which provides pro bono legal counsel to many border residents in South Texas, said immigration courts allow those who are not lawyers, but who are certified as knowledgeable in U.S. immigration law, to represent migrants during hearings and in front of immigration judges. And he speculates that the Biden administration could perhaps set up a system for providing these board-certified legal consultants to represent the children, and other asylum-seekers.

“So many of the issues that face these kids include, of course, language, and not knowing how to work the system. We see these pictures of these little kids at the table,” Harrington said on Monday. They don’t know “what steps to take and what kind of evidence is required, and essentially an advocate with paralegal skills could do that for them.”

Immigration board-certified paralegals would be much less expensive for the federal government, and could effectively give them good legal advice, he said.

“A lawyer is good but you can also get licensed to practice in immigration court if you are not a lawyer as long as you demonstrate the skills to navigate the system,” Harrington said. “My guess is (they’d be) having a public defender, public representative who would essentially be a paralegal licensed in immigration court.”

Source: TRAC Graphic

A 2017 study by the nonprofit Transactional Research Access Clearinghouse (TRAC) of Syracuse University, found that asylum-seekers who obtained an attorney were five times more likely to be granted asylum.

Biden has ordered U.S. Attorney General Merrick Garland to immediately begin studying the issue and within 120 days — or four months — submit a plan to the White House on how the DOJ can expand access to its justice work.

Namely, Biden cites the need to protect vulnerable populations and reform the justice system and advance racial equity.

Rare language speakers, most indigenous asylum seekers, need additional help in immigration courts, TRAC research has found.

An April study by TRAC found that over 40 different languages are spoken among asylum seekers with pending cases. That included many indigenous speakers from the Northern Triangle countries of Guatemala, Honduras and El Salvador, the home countries for most of the migrants entering into South Texas through the Mexican border right now.

But as much as she wants legal representation for all migrants seeking asylum, D’Cruz said she is doubtful the United States is ready for it.

“I doubt it will happen. It’s not the political environment for it. Right now everybody wants to help Americans, which we should. We should help our own. It’s a bigger sell,” she said.