By Steven Sacco and David Bennion
Since Donald Trump began implementing his campaign promise to make the immigration system more hostile and restrictive, immigration enforcement has been under new scrutiny. Recent calls to abolish Immigration and Customs Enforcement (ICE), the agency within the Department of Homeland Security responsible for enforcing immigration laws in the United States, have tended to focus on the immigration police who carry out deportations, a function primarily housed in the branch of ICE known as Enforcement and Removal Operations (ERO). ICE ERO’s ramped-up program of raids and detentions has been a highly-visible element of President Trump’s effort to solidify political support among revanchist white voters opposed to a multiracial future. However, getting rid of ICE’s immigration police is not enough. ICE also encompasses the Office of the Principal Legal Advisor (OPLA), which includes the ICE attorneys responsible for prosecuting people in immigration court. As practicing immigration attorneys, we believe that calls to abolish ICE should extend to ICE counsel, since ICE attorneys play an integral role in the deportation process by securing the deportation orders that ICE deportation officers later carry out.
We believe that the immigration legal system is unjust in both purpose and process. Congress designed the immigration system to prevent people of color from entering and integrating into the United States, and the courts have too often interpreted the law to further this basic goal. Due process protections for people in deportation proceedings have been intentionally limited to better implement that illegitimate purpose. Sean McElwee has aptly described the ICE immigration police as “an unaccountable strike force executing a campaign of ethnic cleansing.” Our immigrant clients experience the full force of that unaccountable and illegitimate legal system through long-term imprisonment, family separation, and the constant anxiety that the threat of exile produces. Our work has led us to support open migration as a basic human right. But we hope that even those who don’t share that view will come to support the elimination of ICE’s prosecutorial branch because it would make immigration proceedings more fair and rational.
The parties in deportation proceedings (technically known by the euphemism “removal proceedings”) include the immigration judge; the government, represented by ICE counsel; and the person the government is trying to deport, known as the “respondent.” Deficiencies in due process so undermine the fairness of deportation proceedings that they at times approach farce.
For example, in criminal proceedings, the right to counsel means that the government usually must provide the defendant with an attorney if they cannot afford one. No such right exists in deportation proceedings, where respondents must locate and pay for counsel on their own. In addition, immigration judges are not part of the independent judicial branch of the federal government. Rather, they are administrative law judges, employees of the Department of Justice who ultimately answer to the Attorney General, currently Jeff Sessions, whose thinly-veiled white supremacy lost him Congressional approval of a federal judgeship in 1986. Consequently, the executive branch is over-represented in immigration proceedings, with an ICE attorney and immigration judge representing the government’s interests while the immigrant often has no counsel at all. The result is predictable. Non-detained immigrants with attorneys are nearly five times more likely to win their cases than those without counsel.
Additional failings of immigration proceedings include an inadequate process to explain the rights and obligations of respondents and limited access to languages other than English at key junctures in the proceedings. The infringements on due process contribute to the arbitrariness of the adjudicatory process, with asylum denial rates among judges varying from 3% to 99%, a shocking disparity. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which limited access to higher courts to appeal erroneous or arbitrary decisions by immigration judges. IIRIRA also eliminated common defenses to deportation, created a fast track deportation process called “expedited removal,” increased immigration penalties for a wide range of criminal convictions, and instituted lengthy barriers to return after deportation.
These structural factors make deportation defense so difficult that by some estimates hundreds —perhaps thousands— of U.S. citizens are wrongly deported every year. If even U.S. citizens are routinely deported, imagine then how impossible it must be for an immigrant who may not speak English and has no lawyer to persuade a hostile judge and ICE attorney that they should not be deported. The immigration courts have become so acculturated to the lack of due process that a senior official within the immigration legal system—a longtime immigration judge responsible for training other judges—made the preposterous claim that toddlers are capable of representing themselves in deportation proceedings.
The Supreme Court acknowledged in the case of Padilla v. Kentucky that deportation is a “particularly severe penalty” that is the “equivalent of banishment or exile.” Too often, deportation is a death sentence, as immigrants fleeing violence are deported back into the arms of those who wish to harm them. In cases where deportees are not in urgent physical danger, deportation still reinforces pervasive lifelong disadvantages in opportunity and resources arbitrarily conferred based on place of birth. Sometimes, immigrants have confronted the possibility of life in exile and decided that suicide is a preferable option.
Given these outcomes, advocates have called for a guaranteed right to counsel in immigration court. The American Bar Association has called for a right to counsel in other civil proceedings where certain basic human needs are at stake, including shelter, sustenance, safety, health, and child custody. However, Congress and the courts have rejected a guaranteed right to counsel in immigration court. Consequently, some advocates have focused their demands to a right to counsel for detained immigrants, children, or adults with mental disabilities. But these efforts too have failed. And just this week, the Department of Justice announced that an existing program to provide basic legal information to people in immigration detention will be defunded, making it even harder to navigate the complicated deportation process. Since Congress and the courts have rejected requests to provide counsel in deportation proceedings to even the most vulnerable groups, we propose an alternative approach: to abolish ICE counsel and allow the government to proceed without representation.
Abolishing ICE counsel would level the playing field, putting the government on the same footing as people facing deportation. It would reduce the financial burden of immigration enforcement on the taxpayer. It would help the government better honor its obligations to uphold human rights. And there would be no need to reinvent the wheel, as other areas of administrative law already provide guidance for how a fair system could work in the absence of guaranteed counsel for the government.
First, abolishing ICE counsel would save taxpayers money. There are over 900 OPLA attorneys in 26 Offices of Chief Counsel. The OPLA budget for 2018 is projected to be $282 million, an increase of $43 million from 2017. That money could be used to support low-income communities rather than to tear them apart.
Second, existing alternative models of adjudication would not only be cheaper, but more fair. Civil administrative law encompasses a broad range of federal agencies and areas of regulation, including regulation of environmental protections, health, child welfare, and labor relations. For an instructive example of an existing non-adversarial civil administrative process, we can look to the Social Security Administration (SSA). SSA may not deny, reduce or terminate someone’s disability or retirement entitlement without first providing them with an opportunity for a “fair hearing.” A Social Security fair hearing entitles the complainant to present witnesses, furnish the tribunal with evidence, be represented by counsel, and make arguments about why the state should not deprive them of their entitlement. Unlike in a deportation proceeding, the government is not represented at a Social Security hearing. Only the judge and the subject of the proceeding are present. Owing to this lack of an opponent, the proceeding is characterized as “non-adversarial” and is treated as a fact-finding mission aimed only at determining eligibility for the benefit at issue. Whether or not the subject of the proceeding is represented by counsel, the administrative law judge must ensure that all evidence relevant to the case is placed into the record. For example, if the complainant presents no medical evidence of disability, the judge must subpoena the medical provider for any such evidence. The judge’s failure to do so can be overturned on appeal.
The federal government deems the procedures in place sufficient to protect the rights of the parties, identify instances of fraud, and identify when a Social Security benefit may lawfully be granted, limited, expanded or withdrawn. If a non-adversarial system is sufficient to enforce Social Security laws, then such a system could also be utilized in the immigration context. In the absence of counsel for the government, the immigration judge could engage in a fact-finding effort to assess eligibility for the immigration benefit at issue. The judge could subpoena appropriate sources of information, such as the State Department in asylum cases or a local police department for evidence of eligibility for visas available to crime victims. The judge’s failure to do so could be overturned on appeal. This non-adversarial system would have the double benefit of upholding the law and protecting the rights of the respondent. Removal of the prosecutor from the immigration proceeding would make the hearing more equitable and truer to the civil —rather than criminal— nature of the proceedings.
There is no good reason to have a prosecutor in civil proceedings, and the public would not tolerate a prosecutor in other civil contexts. Imagine a probate hearing to settle a contested will where the government was represented by counsel and seeking the harshest possible outcome for one of the parties. Prosecution would seem pointlessly vindictive and out-of-place.
The objective of immigration proceedings underscores their civil nature. In both the Social Security and immigration contexts, the tribunal is tasked with determining positive eligibility for a benefit: a financial entitlement in Social Security proceedings and lawful immigration status in immigration proceedings. In contrast, the purpose of a criminal proceeding is to determine guilt or innocence relating to a past action. There is no decision regarding any positive benefit in a criminal case; the jury will never decide that defendant is innocent and entitled to cash assistance or a green card. The civil nature of immigration proceedings is consistent with the removal of ICE counsel from the equation.
Removing ICE counsel from deportation proceedings and reframing them as non-adversarial “immigration benefit determination proceedings” would help solve the problem of over-representation by the government in immigration court. It would also be a step towards decriminalizing migration. The effort to depenalize the immigration system could follow in the footsteps of other social justice campaigns to decriminalize personal choices rooted in principles of liberty and bodily autonomy, including access to abortion or medically-assisted death, same-sex relationships, interracial marriage, and marijuana use.
Like advocates for guaranteed free appointed counsel for immigration respondents, we acknowledge the injustice of the current system, where one party is guaranteed counsel and the other party is not. But rather than make the civil immigration system more like the criminal justice system by mandating counsel for both sides, we propose to make the immigration system more like other civil administrative proceedings by removing the guarantee that the government automatically be represented by counsel. Concerns about the ability of people in immigration court to defend themselves without counsel could be mitigated by removing the threat of imprisonment for civil immigration violations and eliminating the penalty of deportation itself. Deportation is a violation of the basic human rights of free movement and political participation. Abolishing ICE counsel would be an important step toward a more free and just world where life outcomes are not predetermined by accident of birth.
Steven Sacco is an immigration attorney with the Legal Aid Society of New York and a member of the New Sanctuary Coalition of New York.
David Bennion is an immigration attorney in Philadelphia and director of Free Migration Project.