The DOJ’s Dick Move on Legal Aid for Immigrants

Ever since President Trump took office, we’ve been hearing a lot about the public interest legal organizations that have been helping immigrants with the legal fight to come to America and remain here. That these organizations are even necessary is because immigration law is (for the most part) civil law, not criminal law. In many ways that’s a good thing, because it means that people who violate immigration rules aren’t saddled with a criminal record for the rest of their lives.

But there’s a nasty twist: Because they are not charged with a crime, they do not have a Sixth Amendment right to a government-provided lawyer under Gideon. That’s the “If you cannot afford a lawyer, one will be provided for you” part of the Miranda warning. People with immigration problems don’t have that right, so indigent defendants can go through the entire deportation process without ever having a lawyer at their side. Even children. (That story is insane, but it’s not a lone example.)

Having a lawyer is really important. As immigration lawyer Mirriam Seddiq put it in an email to me,

The real problem is that people in immigration court don’t have the right to counsel. They can get one if they can get one, but they aren’t entitled to it in the same way they are in the criminal context (no 6a right) This is a thing that probably needs to change because what could be worse than being sent away from your entire world to another country?

Because of that, these public interest organizations have taken it on themselves to offer a variety of free services, from helping with paperwork to fully representing people through deportation proceedings.

I guess that pisses off someone like Donald Trump, and now it looks like his man at the Department of Justice, Jeff Sessions, is striking back with a cease-and-desist letter to one of these organizations, the Northwest Immigrant Rights Project, which describes it this way:

The DOJ letter purports to rely on agency regulations issued in 2008 that require attorneys to enter a formal notice of appearance if they provide any legal assistance to persons in deportation proceedings. However, the immigration courts do not allow limited appearances, so once an attorney files a notice of appearance they are obligated to take over full representation in the deportation proceedings.

The problem is that NWIRP is not staffed to fully represent a lot of people through the entire process. They’ve found they most effectively use their limited resource by giving a smaller amount of help to a larger number of people.

While NWIRP is able to provide full representation in some of those cases, the majority of people are left without an attorney. In response, NWIRP has historically provided limited assistance to help those individuals fill out applications for asylum, cancellation of removal, family visas; file motions to reopen removal proceedings, change venue, and to terminate proceedings; and advise them on defenses, forms of relief, and the procedural requirements for moving forward on cases. But now the cease and desist order has caused a dramatic and immediate impact in the way NWIRP is able to serve hundreds of unrepresented persons.

The DOJ order is based on regulations from the Executive Office for Immigration Review intended to protect immigrants from unscrupulous lawyers who take advantage of them by taking a fee and then disappearing without helping them. Obviously, lawyers who work for free aren’t trying to take advantage of anyone, and organizations like NWIRP have long been allowed to operate without having to follow this rule.

Now, however, somebody at Sessions’ Justice Department wants to enforce this rule against NWIRP, and presumably other such organizations, probably because they think this would be a good way to fulfill Trump’s goal of getting more illegal immigrants out of the country.

Any way you look at it, it’s kind of a dick move. Fortunately, at least for now, it’s a dick move that’s blocked by a federal judge. But it’s not a good sign.

(Hat tip to my occasional co-blogger Ken, who directed me to a Nation story by Rachel B. Tiven. Read the whole thing.)

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