It’s no secret that immigrants and asylum seekers face a complicated world of legal proceedings — whether seeking release from a detention center or in proceedings in immigration court. It’s also no secret that many in immigration proceedings go unrepresented, facing bleak outcomes and areas of support.
Denver provides assistance through its Immigrant Defense Legal Fund, but through the work of activist organizations and state public defenders, Colorado could soon see a statewide version as well.
The Plan
The Colorado Immigrant Rights Coalition, a statewide, membership-based coalition of immigrant, faith-based, labor, youth, community, business and ally organizations, is active in working to create a statewide legal defense fund in Colorado. It plans to do this through state-level legislation — the Act for Due Process and Dignity — that would create a private/public fund for legal defense, according to the CIRC website. The fund would be run through an advisory board made of community leaders, legal experts and advocates and would grant applications and choose grantees. Then, through the fund, “any Coloradan with a deportation case would qualify to receive a free lawyer if they cannot afford one.”
“For us, it makes complete sense to be fighting for dignity and due process at a moment when that has been stripped at many levels across the inequities we’re seeing in our structures,” Lane-Arellano said.
While the creation of a statewide fund is one of the group’s goals, CIRC policy manager Raquel Lane-Arellano, said many details still need to be fleshed out, though the task is identified as one of the organization’s priorities.
“Which is not surprising, given how much enforcement has picked up in this administration,” she said. “[CIRC] members chose to continue that priority, even amid COVID, because the need is far greater now that immigrants especially are experiencing an economic crisis, disproportionate impact from the coronavirus, and those who’re detained are experiencing outbreaks, lack of care and neglect for their humanity.”
Some groups have already taken steps to address the difficulties of immigrants needing legal representation, such as the City and County of Denver, which created the Denver Immigrant Legal Services Fund, or DISLF, in 2018. The city fund was created, following an executive order from Mayor Michael Hancock, to provide free, quality legal services for Denver residents in immigration proceedings via local nonprofits pledging support to refugees and immigrants. It has distributed over $755,000 to local nonprofits thus far.
Despite the money flowing so far, its limitation to only Denver residents leaves an entire immigrant population elsewhere in the state outside its ability to help. One of the beneficiaries of the Denver fund is the Rocky Mountain Immigrant Advocacy Network. Its executive director, Mekhela Goehring, said it would be “phenomenal” if what Denver created could be expanded so that all Denver residents had access if they did not have the resources to an attorney, and then beyond the city. She said she feels legal support should be made available to all Coloradans, regardless of where they call home.
Goehring added that one difficulty is that the center in Aurora has detained individuals from across the state. Every day, RMIAN is approached by detained populations asking for assistance in their cases, Goehring said. A large number of those detainees at Aurora are not from Denver and do not have access to the support offered directly by the Denver fund. RMIAN has a vast network of programs and other attorneys who work on different types of cases, and “triage” for case representation — “but it’s nowhere close to enough.”
“The current reality is still a battle,” she said, adding that she hopes it is a battle that will be won in her lifetime. Goehring also mentioned the potential for working with other communities before a statewide fund that could create a “groundswell” of support for a statewide program to the government. She mentioned actions being taken in the mountains, a group in Ft. Collins trying to start a legal defense.
Because CIRC’s members reach across the state, the group often hears from immigrant-serving organizations and directly impacted immigrants testifying to the legal needs outside of the Metro area, Lane-Arellano said.
It is becoming increasingly more difficult, especially for those immigrants outside the Metro area, to obtain legal counsel because of the lack of immigration lawyers outside the Denver area, Lane-Arellano said. Also, these same immigrants can face increased costs of travel and transportation if the lawyer happens to be in a different location, or to where they might be detained, or to go to immigration court in the city. It is CIRC’s hope to make sure that people outside Denver have an answer in a statewide solution.
The Situation Outside Colorado
According to a 2018 fact sheet from the Vera Institute, regarding the impact of legal representation in immigration court, the lack of appointed counsel in immigration cases “means that tens of thousands of people each year go unrepresented,” including longtime legal residents, immigrant parents, spouses of U.S. citizens, asylum seekers and children. Those individuals are defending themselves in a complex system against the national government, always represented with counsel, according to the fact sheet. Because the Sixth Amendment to the Constitution and the right to an attorney established in the landmark Gideon v. Wainwright case only apply to criminal proceedings — and deportation cases are civil proceedings — immigrants are only entitled to representation paid by the government in “extremely limited circumstances.”
Almost half of all immigration cases have gone unrepresented. In 2016 alone, over 73,000 cases completed in immigration court lacked representation, according to the fact sheet. At the same time however, the Executive Office for Immigration Review reported there was a steady increase in the percentage of noncitizens able to secure counsel in deportation proceedings.
It’s “nearly impossible” to win deportation cases without counsel assistance, according to the Vera Institute. “Only 5% of cases that won between 2007 and 2012 did so without an attorney; 95% of successful cases were represented.”
However, that’s not the result of lawyers choosing stronger cases to take on, according to the fact sheet. Merits-blind universal representation also improves the chance of a successful outcome. Pointing to the New York Immigrant Family Unity Project, the first publicly funded universal rep program in America, the odds of detained immigrants winning their cases in New York City vary from 4% when unrepresented to 48% when represented by an attorney.
Changing the System
Under the Sixth Amendment, access to a lawyer if you can’t afford one is “essential to have a just and fair trial,” according to the CIRC website. However, under the current system around 70% of immigrants detained in the Aurora GEO detention center don’t have a lawyer, while the government is represented by an attorney.
“Many people in deportation proceedings have valid legal claims to remain in the United States but cannot fairly argue their cases effectively for themselves absent legal expertise in our complex immigration laws,” the CIRC website states, and notes that the issue of legal defense is a federal issue at the core. “Universal representation in immigration court should be a national mandate in the US.”
One way that CIRC hopes to address this problem is through a public defender-like program in immigration court. Lane-Arellano said a public defender model is being discussed because a fundamental aspect of American democracy is that everyone has a right to an attorney and is innocent until proven guilty.
“And it’s frankly appalling that here we have this incredibly complicated procedure and immigration court, and the only legal proceeding in the U.S. where anybody can be detained without a right to an attorney if they can’t afford one,” she said.
Lane-Arellano said this process has the same consequences as the criminal justice system. When detained, someone cannot provide for their family, it is harder to obtain legal counsel and the same health risks are posed in the rising number of cases in all forms of incarceration facilities.
“I think the parallels make it really clear that giving everyone the same approach to due process should be used in immigration court are the same — if not greater — because some people could be deported to a death sentence if they’re fleeing violence in their home country,” she said.
The New York Liberty Defense Project is a “state-led public-private project” offering assistance to obtain legal services and process for immigrants without regard to status. Administered by the state’s Office for New Americans, the project is run in partnership with legal associations, law firms, advocacy organizations, colleges and university and bar associations, according to the project website.
Goehring hopes the program can expand in such a way that any individual in immigration proceedings or detention within the state would have access to an attorney, if they did not have resources to obtain one.
But it’s not only directly immigrant and legal support groups that are optimistic about a statewide legal fund. Francey Liefert, the director of the Immigrant Freedom Fund of Colorado, a volunteer organization working to bond out “one person at a time” in immigration detention, also hopes for the creation of a statewide legal fund. The group is based out of Loveland, and a member of CIRC. Usually, Liefert is not involved in trying to obtain legal assistance for individuals but does occasionally deal with finding legal assistance and working with legal assistance groups.
However, Liefert had spent the day before speaking to Law Week calling across her contacts to try to help obtain legal representation for an Ethiopian bonded detainee at the Aurora facility. He has an asylum case, however, there have been difficulties with affording a lawyer or finding one with pro bono services to help his case. Many lawyers are not taking asylum cases at this time, either, due to challenges at federal levels, Liefert said.
She thinks creating a fund in the style of the DISLF would be “a terrific idea.” Further, she said it’s atrocious in a country like America for immigrants to lack representation in court.
RMIAN pioneered a program within the state, to have a universal representation model for any Denver resident that is both at or below 200% of the Federal Poverty Guidelines and is detained at the center and doesn’t have a private attorney, Goehring said. The revolutionary piece of the model is that it’s a universal model for representation, meaning RMIAN is not selective about which cases they believe is the most meritorious to deserve an attorney, but if someone meets the criteria for residence and income guidelines and detained — they entered into a system, similar to a lottery, to obtain a lawyer.
Two attorneys were hired via the fund, and new to RMIAN, to take on the project, Goehring said. Because of the merits blind case selection system, the attorneys are advising clients on what options they have in their cases, if they’re eligible for protection under law, representing clients in a bond hearing, and if they are released from detention, the attorneys follow the case on to conclusion in non-detained court.
According to a May overview for the DISLF, these two RMIAN attorneys have represented over 30 individuals, two of whom have been released from ICE detainment, but nearly all the cases are still pending. However, without the funding of the DISLF these same individuals would have had to represent themselves.
The CIRC model for the fund would advance a universal model for representation that replicates a sort of public defender model for immigration court, according to the CIRC website. If the bill were to pass, Colorado would join several other states providing similar programs — including New York, New Jersey, California, Ohio and Illinois.
The goal is that, eventually, there would be enough resources in the Denver fund to staff enough attorneys so that every single Denver resident would have access. Goehring said the organization is trying to show that equal access to everyone who is in immigration proceedings and detention.
“You realize that the work that attorneys can do in providing representation, securing positive outcomes for individuals is really having a community-wide impact,” she said.
Jessica Burnett, detained representation attorney fellow at RMIAN, is one of the two attorneys whose position was created under the fund. She described herself, and Shaleen Morales, the other fellow, as a little island working on the universal representation programs.
As the fund requires them to be residents of Denver, there have been instances where, because of a city border, the two fellows could not take up a person’s case, Burnett said. She had heard from others working with immigration groups there are many communities beyond Denver that could possibly need legal help in cases.
“There are many more people that could use help out in the rural parts of the state,” Burnett said. “I think it’s desperately needed elsewhere as well.”
Through the funding, the two attorneys were able to represent 42 Denver residents in very complex deportation cases, Goehring said. She added that the length of time most clients served by the Denver fund have resided in Colorado for 16 years, on average, and a third have been residents for over 20 years. A large majority of those served are parents, and nearly all are parents of U.S. citizens. Further, Burnett also noted that capacity issues for taking on new caseloads can be difficult.
“I want a statewide fund,” Morales said, adding that the complexities of both immigration law and cases required one person’s dedicated work. Burnett added she was unsure of whether any volunteer action could help in the process.
And in spite of the difficulties facing this movement, Lane-Arellano noted that CIRC had seen an increase in support from local jurisdictions because the conversations happening around racial justice and equity and community investment have matured quickly during 2020.
“Despite the fact that budgets are being cut, and priorities are being set on all levels of government, we’ve seen local communities step up even more in this moment because they understand, and because those conversations have evolved dramatically, to see how this resource for immigrants is absolutely critical — now more than ever before,” she said.
Further, Goehring was hopeful that while waiting for a state fund, perhaps independent immigrant groups across Colorado can work together and provide support. Goehring said one of the critical issues was that any group getting funding to do the work must have the experience and expertise to provide deportation defense to clients because it is such a complex area of law.
Goehring feels that ideally, since access to counsel in such complex proceedings with grave stakes, that this should be a fundamental right provided to everyone and publicly funded.
“It just doesn’t make sense to not provide attorneys in that context,” she said.
— Avery Martinez