Advocates Push for Lawyers for Immigrant Detainees

(CN) – A microcosm of the nation’s massive deportation system is playing out in a small courtroom in San Francisco, where immigrants held in detention centers miles away speak to judges through interpreters and flat-screen TVs.

“I would like to find an attorney, but I don’t have money,” Benjamin Hernandez-Meza told Immigration Judge Valerie Burch during a hearing Wednesday. “I can only see from one eye. I have already been declared with a disability.”

Hernandez-Meza is one of about 1,500 immigrants detained in four facilities within 300 miles of San Francisco, where deportation cases are tried and decided by 19 immigration judges at two courthouses.

Hernandez-Meza said he came to the U.S. at age 18, worked in the fields of Fresno, and is partially blind and deaf due to diabetes.

The judge told a security guard to hand Hernandez-Meza a list of free immigration attorneys, though he said he could not read. His case was delayed another two weeks to give him more time to find a lawyer.

Unlike in criminal cases, immigrants facing deportation have no right to an attorney unless they pay for one or find one to take their case pro bono. And a stark disparity exists in outcomes based on access to counsel.

A recent study by the University of Pennsylvania Law Review found detained immigrants with an attorney were four times more likely to be released on bond, 11 times more likely to seek asylum or other relief from deportation, and twice as likely to successfully obtain the relief they sought.

According to that same study, 37 percent of immigrants have no legal representation in removal cases, a proportion that shrinks to 14 percent for those held in detention.

Responding to newly expanded deportation policies under President Donald Trump, government officials in San Francisco have sought more funding to provide legal representation for immigrants facing deportation.

San Francisco Mayor Ed Lee pledged an additional $1.5 million to nonprofits that provide legal counsel for immigrants.

But the city’s public defender Jeff Adachi is pushing for millions more in funding that would allow his office to hire more staff and lawyers dedicated solely to representing detained immigrants.

“We believe that San Francisco should follow the example of New York and New Jersey, which, through their public defender agencies, provide legal representation to all people in custody facing removal or deportation,” Adachi said in a statement in January. “This is the only humane position for us to take as a sanctuary city and a city that stands for due process and fairness for all.”

The city of New York spends about $30 million a year to provide universal representation for detained immigrants, according to a report by the San Francisco Budget and Legislative Analyst’s Office.

A proposal seeking $2.2 million to establish a new unit in the city’s public defender’s office dedicated to defending immigrant detainees is currently making its way through the San Francisco Board of Supervisors’ Budget and Finance Committee.

Meanwhile, California state lawmakers are considering Senate Bill 6, which would create a state program to fund legal representation for immigrants fighting deportation. Another piece of state legislation, Assembly Bill 3, would establish state-funded regional centers to train defense attorneys and public defenders’ offices on immigration law.

Despite San Francisco’s current funding of $3.8 million to nonprofits that provide free legal aid to immigrants, many detained aliens are forced to go without representation.

A June 2015 study found about two-thirds of detainees had no representation in San Francisco immigration court. The study, published in the Stanford Journal of Civil Rights and Civil Liberties, also found those who had a lawyer were at least three times more likely to avoid deportation.

Attorneys with two nonprofits that help immigrants say they have to turn down most people who need their help because the number of immigrants needing assistance outweighs their resources.

“We can only represent a tiny fraction of people in detention,” said attorney Anoop Prasad of the Asian Law Caucus. “It’s like a triage – picking out the cases we think we can win. Or if someone could win their case without an attorney, or if there are people more vulnerable with mental health issues, we try to prioritize those.”

While dockets for detained immigrants are supposed to be tried at a speedier pace, Prasad said some of his clients have spent three or four years detained in county jails, which were never designed for long-term stays.

“They are locked down 23 hours a day,” Prasad said. “People in Yuba County, for example, never set foot outside. I have clients who spent two years in Yuba County and never went outside, felt a breeze or saw a bird.”

Detainees under the purview of the San Francisco Immigration Court are held at one of four facilities – West Contra Costa County Detention Facility in Richmond; Rio Cosumnes Correctional Center in Elk Grove, south of Sacramento; Yuba County Jail, north of Sacramento; and the Mesa Verde Detention Facility in Bakersfield, nearly 300 miles from where the court hearings are held in San Francisco.

Detainees unable to get a lawyer must decide if they want to spend several months in detention fighting removal or simply accept deportation, which can include separation from their families and being banned from returning to the U.S. for decades or life.

“Some feel they just can’t mentally take that much time in detention and end up taking deportation orders even though their cases are completely winnable,” Prasad said.

A 2013 ruling in Franco-Gonzalez v. Holder, out of the Central District of California, held that immigrant detainees in Arizona, California and Washington state must be provided legal counsel if they are found mentally incompetent. That ruling came out one day after the Justice Department enacted a nationwide policy requiring legal assistance be made available to all detainees with mental disabilities. But Prasad said it’s often incumbent upon judges and guards to identify when a detainee has a mental disability.

Megan Sallomi, who runs the asylum program at the Lawyers Committee for Human Rights of the San Francisco Bay Area, said her organization also gets more requests for help than it can fulfill.

The Lawyers Committee works with volunteer interpreters and pro bono attorneys, who help guide immigrants through the process of applying for asylum. To obtain asylum relief, immigrants must show a credible fear of persecution or violence in their home countries.

“There are way more people with valid claims and compelling cases than we can serve, so often it’s a difficult decision,” Sallomi said.

She added that even though immigration law is so complex that it rivals the tax code, it also has the largest percentage of individuals representing themselves.

“You have state criminal law and penal codes intersecting with international law,” Prasad said. “It does get really complex really quickly. It’s unthinkable that someone with limited English proficiency from detention with no legal training and very limited legal materials could figure things out and prepare motions and briefs for themselves.”

Prasad and Sallomi said both of their organizations are marshaling more resources to respond to the anticipated increase in immigrants who will face deportation under stricter immigration policies enacted by President Donald Trump.

“Fundamentally there was a massive deportation and detention system under [former President Barack] Obama, which is still operating,” Prasad said. “That existed long before Trump took office. Now he’s trying to expand it.”

During a hearing in Judge Anthony Murray’s courtroom on Thursday, a Chinese woman being held at the Richmond detention center burst into tears when she heard her case would be postponed nearly two months.

The 50-year-old Chinese asylum seeker claims she was persecuted for her political activities and for being a Christian, and that the Chinese government subjected her to other forms of oppression and discrimination because she was born in a rural area but lived in Beijing.

When she arrived at San Francisco International Airport on a tourist visa on Dec. 23 last year, federal agents asked why she packed a birth certificate in her bag if she was only coming for a visit. Convinced she was actually coming to stay, federal agents had her detained and sent to the Richmond holding center.

She was in detention nearly two months when she encountered attorney Lien Uy, who was visiting another client, and pleaded for help with her case. Because she has no family in the U.S. and was picked up while entering the country, she is not eligible for bond.

The judge explained to the woman, who was crying at the detention center 20 miles away over a video screen, that her attorney needed more time to get documentation for her case.

“You only get one chance to apply for asylum,” Murray said. “It’s best to give your attorney the time to present the best case possible.”

Uy, based in Oakland, said she would use that time to get documents, such as records of her client’s baptism and evidence of her political posts on social media, to verify her story and support her application for asylum.

“She was very emotional because she didn’t expect to be detained,” Uy said. “She expected a quick decision today.”

The Chinese asylum seeker was one of a select number of detainees represented by an attorney during deportation hearings on Wednesday and Thursday in San Francisco Immigration Court.

Although judges made efforts to ensure detainees clearly understood their rights to fight against removal and to appeal any ruling, many said they could not get a lawyer and chose to accept removal without a fight.

The judge informed Mexican detainee Luis Francisco, who was convicted of three DUIs and could not get an attorney, that he could apply for a cancellation of removal, which would require proving that his deportation would pose an extreme and unique hardship for his six-year-old son.

When a guard handed him an application for cancellation of removal, Francisco responded, “I have to fill out all of this?”

Overwhelmed, he decided not to fight his case and to accept deportation to Mexico, ending his months of detention in a holding facility.

He said he had wanted to enter a rehab program and stay in the United States, but he was denied bond or the opportunity to be released and leave the country voluntarily.

He was told he would not be able to re-enter the United States on a visa sponsored by his U.S. citizen son for 15 years due to his prior convictions.

These are just a few of the more than 38,000 cases being handled by the judges in San Francisco’s immigration court, which faces a two-year backlog.

Since the start of the 2017 fiscal year on Oct. 1, 2016, at least 933 immigrants have been ordered deported by immigration judges in San Francisco. More than 32,000 deportation orders were issued nationwide, according to data collected by Syracuse University.

The U.S. government deported 240,000 undocumented immigrants last year, down from a high of 409,800 in 2012, according to U.S. Immigration and Customs Enforcement.

Ed. note: The story has been edited to clarify that the 2013 ruling in Franco-Gonzalez v. Holder came out a day after the Justice Department ordered legal assistance to all detainees with mental disabilities.