Pennsylvania needs to create a free public-defender-style system to provide lawyers to detained immigrants facing deportation, according to a new study that says they are often denied due process in cases where the stakes can be life or death.
Migrants in removal proceedings are legally allowed to be represented by counsel, but only if they can find and pay for a lawyer on their own. That can be difficult, even impossible, for those who work at low-wage jobs, have little education, struggle to speak English — and who are in jail.
The study, released Wednesday by the Penn State Law Center for Immigrants’ Rights Clinic, framed the issue as one of basic American fairness.
Legal representation is crucial to whether migrants are able to stay in the United States to fight their cases in court, or are sent back to homelands from which they may have fled in terror.
“No one should have to represent themselves against a government-funded attorney," said Mary Studzinski, executive director of the Pennsylvania Immigration Resource Center (PIRC), an advocate group that contributed to the report.
In 3,615 Pennsylvania cases that the study reviewed, 77% of detainees had no lawyer. Among those who did, 39% filed applications for some type of legal relief, such as release on bond or cancellation of removal. Where no attorney was present, requests were made in fewer than 12% of cases.
The lack of representation “creates serious due process concerns,” the study says, resulting “in meritorious cases being denied or never raised in the first place.”
The report lands at a moment when the capacity and fairness of federal Immigration Court are being questioned, and cities including Philadelphia are raising money to provide migrants with lawyers. At the same time, the Trump administration’s aggressive enforcement policies have gained wide approval among those who want undocumented migrants swiftly deported.
President Donald Trump said that when migrants cross the border, “we must immediately, with no judges or court cases, bring them back from where they came.”
About 50,000 migrants are in detention, and more than one million cases are pending in immigration court. Federal prosecutions for illegal entry into the country more than doubled from fiscal 2017 to 2018, from 27,657 to 61,581.
Immigration supporters say deportation can carry drastic consequences, including permanent family separation that harms spouses and children who are left behind and who may be American citizens.
The right to a lawyer can seem like a standard component of American law, particularly when one’s liberty is at risk. But in Immigration Court, even young children can be forced to serve as their own lawyers.
“We have a system of fairness in this country, and everyone who resides here ought to have a day in court before their fate is decided,” said Shoba Sivaprasad Wadhia, director of the Penn State Law Center for Immigrants’ Rights Clinic, which produced the study with feedback from advocates HIAS Pennsylvania, the Nationalities Service Center, and PIRC.
Data were obtained through Freedom of Information Act requests to the Executive Office for Immigration Review, the Justice Department agency that adjudicates immigration cases, and from interviews with Pennsylvania immigration lawyers.
The study did not estimate the cost of such a public-defender program. The authors plan to share the findings with lawmakers, government officials, and community groups.
Migrants who sneaked across the border aren’t the only ones who can find themselves in removal proceedings. Asylum seekers who ran from danger can be removed. Even permanent residents, known as green-card holders, can be kicked out of the country under certain conditions.
Immigrants who lack counsel may be deported without ever learning that relief was available. Nonprofit agencies, often underfunded, are unable to represent large numbers of clients, the study said.
Having an attorney increased the rate at which migrants were granted bond. That freedom in turn allowed them to remain with their families, continue working and paying taxes, and gather supporting evidence for their cases from relatives, friends, and employers.
Pennsylvania is home to two immigration courts: in York for detained immigrants, and in Philadelphia for the nondetained. Immigrants also are kept in local prisons and jails where no immigration court is present, and at the Berks family detention center in Leesport.
This summer, Philadelphia became the latest city to join the Vera Institute of Justice SAFE Network, launching a modest pilot program to provide lawyers to immigrants facing deportation. An initial $200,000 was set aside with hope of raising more money from advocacy groups and local governments.
Mayor Jim Kenney said the project will help Philadelphia “remain a place where everyone, including immigrants, feels safe and welcome,” and “push back on the hate being driven by the White House.”
About 50,000 undocumented migrants live in Philadelphia, part of a national population estimated at 11 million. As Philadelphia is a “sanctuary city," Kenney administration officials seek to treat undocumented migrants and U.S. citizens alike when they interact with courts and police.
In the Penn State study, a lawyer described Pennsylvania detainees as largely working-class, holding jobs in construction, agriculture, or beauty. While they may be able to pay a lawyer for a brief time, they will be left unrepresented when their money runs out.
Weighed against those individual resources, the study says, are billions of detention dollars appropriated to U.S. Immigration and Customs Enforcement, whose lawyers represent the government in removal proceedings.
Organizations like the Penn State clinic note that the Constitution does not discriminate between immigrants and citizens, instead referring to “people.” That, they say, means that many basic protections, including the right to due process of law, apply to everyone regardless of status.
“It’s a fundamental fairness of our justice system, going back hundreds of years, that people get to ask for relief,” Studzinski said. “It’s not a guarantee you get relief. It’s just a fair opportunity to ask for relief."
Immigrants, she said, "are not getting it now.”