On July 11, U.S. Immigration and Customs Enforcement (ICE) announced that there had been a nearly 40% increase in the number of individuals deported from Washington, Oregon and Alaska during the previous nine months, as compared to the same period in the year before. The government’s statistics make clear what advocates for immigrants have known for some time: A difficult situation has become dire.
Already, approximately 90% of the immigrant detainees facing deportation from the Northwest Detention Center in Tacoma are unrepresented. Almost half of the immigrants in deportation proceedings who are not detained are pro se. The lack of representation has very real and serious consequences for those facing deportation, as well as for their families.
The complexity of immigration law, the inevitability of systemic mistakes and the challenges people have representing themselves render it almost impossible for an unrepresented person, especially someone who is detained, to successfully assert a meritorious claim for relief from deportation. Without a corresponding increase in legal representation for immigrants, the increased enforcement will create more unjustified (and devastating) outcomes in this arena.
The collection of people who find themselves in deportation proceedings includes a wide range of individuals. Those fleeing horrendous mistreatment in their home countries may have suffered arbitrary detention, interrogation and torture because of their political opinions or religion, or may have endured severe domestic abuse in a country where family violence is not criminalized. Others have lived in the U.S. for the majority of their lives as lawful permanent residents (or “green card” holders) and have families and stable jobs here, but nonetheless face deportation because of their criminal histories. Among the others who land in deportation proceedings are those who are undocumented, perhaps because they have overstayed a temporary visa, such as a visitor or student visa, or have entered the U.S. without permission.
The assessment of whether an individual is properly in deportation proceedings is complex and those who are unrepresented rely entirely on the U.S. Department of Homeland Security and the Immigration Court to get the assessment right. The Immigration Courts in Seattle and Tacoma completed more than 10,000 cases last year.
Given the high volume of cases processed annually, there are bound to be errors and these errors can be shocking. Indeed, ICE, an agency within the U.S. Department of Homeland Security, was criticized recently for detaining Rennison Castillo, a U.S. citizen, at the Northwest Detention Center for nine months between 2005 and 2006. ICE has no jurisdiction over U.S. citizens.
Even when an individual is properly in deportation proceedings, the analysis of whether he or she is eligible for relief also is complicated and depends on a number of factors. These include the individual’s immigration history, criminal history, if any, and information about his or her family’s circumstances (e.g., the immigration status of family members and their mental health and medical histories). Gathering this information from family members and from government officials, and presenting this information to an immigration judge, are tasks which often prove exceedingly difficult even for the most determined individual.
An immigration judge is obligated to apprise a person in deportation proceedings of his or her apparent eligibility to make an application to remain in the U.S., but, absent obvious clues that point toward eligibility for relief, a judge in this setting is not equipped to do a full-scale evaluation of every individual appearing before him or her. And the reality is that the harsh immigration reforms of the 1990s preclude many with compelling circumstances from applying to stay in the U.S. For example, an individual with no criminal history, who has resided in the U.S. without immigration status for several — but fewer than 10 — years, who has consistently worked here and filed tax returns, and who has young U.S.-citizen children, even a child who is ill, would have no remedy from deportation.
Even if an individual is properly advised that he or she is eligible to seek some remedy from deportation, actually assembling and presenting that application to the Immigration Court is another hurdle entirely (with which the immigration judge and ICE are not mandated to assist). The hurdle is tenfold higher if the individual is detained.
The case of a client who was represented this year by law students in the University of Washington’s Immigration Law Clinic illustrates the intricate nature of the information required. The client, “Abigail,” a longtime green card holder from Vietnam, had come to the U.S. in 1992 as a refugee when she was 16 years old. She faced deportation because she has two shoplifting convictions, from 1998 and 2006, for which she received no jail time.
In a case like this, Abigail needed to establish that her U.S.-citizen parents and children would suffer “extreme hardship” if she were deported and also that she merited a favorable exercise of discretion. Abigail is a single mother to four children, takes care of her mother full time (she has dementia and other medical conditions), as well as her father (who is elderly), and an aunt (who has schizophrenia).
The students gathered more than 300 pages of documentary evidence, including lengthy declarations from Abigail and several family members and friends, and medical and academic records. After holding a hearing and considering all the documentary evidence and testimony, the immigration judge granted Abigail’s waiver application.
As shown with Abigail’s case, competent representation can make the difference to an individual in deportation proceedings. National studies have indicated that immigrants seeking asylum (these are individuals who fear persecution in their home countries) are nearly three times more likely to succeed when they are represented by an attorney than when they are not. However, because deportation proceedings are civil, there is no constitutional right to court-appointed legal representation. While organizations such as the Northwest Immigrant Rights Project and Volunteer Advocates for Immigrant Justice, as well as the private immigration bar and the attorneys who represent these clients pro bono, do a fantastic job with the resources they have, most people who need an attorney do not get one.
Compounding this acute lack of legal representation, deportation leads to grave consequences, such as permanent separation from family, home and community, and, in some cases, persecution, torture and even death. In a growing number of cases, these consequences are preceded by a lengthy period of detention — even for individuals with no criminal history — in an immigration detention facility, such as the Northwest Detention Center.
If the recently announced statistics are any indication, there will be rising numbers of individuals like Abigail, who are eligible to mount a defense to their deportations, but whose chances of succeeding plummet without representation. This is especially so given the August 7 announcement by GEO, the private company that operates Tacoma’s Northwest Detention Center, that it will increase the capacity of that institution 53% to accommodate 1,575 beds.
Without a corresponding increase in the resources available for representation, it is likely that these people, many of whom have meritorious claims, will be deported. As with any legal system that engenders such disparate results, this system must be remedied and calls for our immediate and undivided attention.
Signe Dortch is the director of the Immigration Law Clinic at the University of Washington School of Law.
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