Why Deporting Illegal Immigrants without Legal Representation is a Bad Thing

It isn’t all that surprising to hear about the bad press surrounding immigration detention centers. There are numerous reports out there alleging how detainees have died in detention centers from a lack of adequate medical care, are unnecessarily beaten by detention officials, and so forth. In terms of where detainees stand in our society’s totem pole of “who matters,” I would say that, sadly, they’re pretty much at the bottom. Therefore, I wasn’t all that surprised to hear about how many of these detainees are going without access to legal counsel as they face their deportation hearings.

The facts are grim. A recent nation-wide survey indicates that many of these immigrants are not allowed phone access that would allow them to contact lawyers, are moved to detention centers far away from their families and communities, are not informed about their civil rights, and are located in detention centers where they don’t have much access to legal aid societies. The federal organization in charge of immigration (U.S. Immigration and Customs Enforcement) says that they are providing detainees with access to law library materials, but practically speaking, this is often not carried out.

And all of this matters, a great deal. A 2005 study showed that in terms of getting lawful permanent resident status, detainees who were represented with lawyers were successful 41% of the time, compared to 21% of detainees who were successful without lawyers. In asylum cases, detainees with lawyers won 18% of the time, compared to just 3% of detainees who won without lawyers.

The thing is, while I believe most people would feel that there is something intuitively wrong about this situation, there is really nothing constitutionally unlawful about it either. Under the Due Process Clause, the government cannot take away basic liberties from people without giving them a fair determination process. This means that the government must generally give people notice, and a hearing before a neutral magistrate, before depriving them of their basic rights. Since the government does offer all detainees a neutral hearing before deporting them, there is no Constitutional violation here.

But just because this is constitutionally lawful doesn’t mean that it’s right for so many detainees to go without legal representation. Some might say that legal representation really doesn’t matter, since magistrates are used to detainees representing themselves anyway, and they can easily sift through the facts. But I’m not sure about that. Immigration law is pretty tricky and can involve a lot of paperwork. Additionally, much of immigration law is based on fact-specific inquiries. The magistrate’s decision to let someone stay or go can easily hinge on just one factual detail. In fact, the statistics from above speak for themselves. Without legal representation, detainees are at a significant and unfair loss.

Furthermore, we guarantee all suspects in criminal cases the constitutional right to a lawyer under the Sixth Amendment. While immigration law is not criminal law, I don’t see why the same reasoning wouldn’t apply. The repercussions of a deportation hearing for a detainee are huge, and no less than that for a suspect in a criminal case.

Some might argue the difference is that illegal immigrants are not citizens, while alleged criminals are. However, this is a circular argument: the very point of the deportation hearing is to determine whether they should be here and allowed more rights.

However, what really surprised me in this report was how detainees are not even given a chance to find representation, notwithstanding the issue of whether they can afford it or not. Detainees are not allowed the opportunity to even make private phone calls to a lawyer, not given access to a law library, and not represented by legal aid societies that want to help them but are too far away to. To me, the deprivation of these services even borders on a Due Process violation. After all, what’s the point of giving someone notice about an impending hearing, but then stopping them from doing anything about it?

I understand the need for the government to conserve its resources. And I’ll admit that when it comes to illegal immigrants facing deportation, well, they really aren’t the most attractive place for the government to want to spend its money. But there are easy steps that can be taken here.

I’m not even saying that all illegal immigrants should be afforded an attorney, similar to how we provide public defenders in criminal cases. But the government can, at the very least, allow detainees to pursue getting legal help, regardless of whether they actually get it.

There have long been reports about how the immigration enforcement agency is trying to better conditions for detainees. Hopefully, this survey is just one more piece of information that will help move us forward in the right direction.