Say You Won’t
I have been a lawyer for eleven years and have mixed feelings about the profession, as any future law student who calls me for advice about whether or not to go to law school can tell you. One question that has nagged me constantly over the last decade is how my participation in the American justice system contributes to the way it crushes most people who face it. Yes, my job has been to defend migrants from deportations and help people navigate the morass that is the US immigration system and that is a good thing. So it may be difficult to understand how I could be contributing directly to injustice. But many days I am certain that I do. I can explain it directly:
Non-citizens who the U.S. seeks to deport, that is people in removal proceedings in US immigration court, do not get an attorney. They have a right to counsel but they do not get one automatically the way, say, a criminal defendant does. This is because they are not being accused of any crimes. “Immigration is not a crime” isn’t just a basic bumper sticker slogan, it is also a fact. When someone is in immigration court they are not being charged with a crime but rather an administrative violation. Because of that, constitutional rights that people get when they are accused of a crime do not attach in immigration proceedings. You can have a lawyer but she will not be provided to you by any government expense.
Because immigration court does not require a lawyer for the non-citizen being removed, we are told that the system should be navigable by anyone on their own, never mind if they don’t speak English or if they are detained in a facility that has no access to basic legal tools like, I don’t know, the internet. The system is supposed to be accountable to people who appear pro-se, or without a lawyer. Yet studies consistently reveal that people who appear in immigration court with a lawyer have astronomically better chances of succeeding. I have heard judges tell people that appearing without a lawyer is like “driving down a highway with your eyes closed”. I recently wrote a brief to the Board of Immigration Appeals that cited a hearing where an immigration judge in El Paso ordered the removal of 4 individuals to Haiti who didn’t have counsel and were deeply disoriented about their rights. During the hearing the judge begged these individuals to find counsel and told them, in an enormous dereliction of duty, that he would be forced to remove them if they didn’t.
This is the reason why the organizations I work with have always hustled so hard to show up for people in court. Recently, the National Immigrant Justice Center found that only 14 percent of detained immigrants show up to their removal proceedings with a lawyer. That shocking number makes sense. Detained people can either hire a lawyer from the private bar, which can cost upwards of ten thousand dollars for a proper removal defense, or get lucky and get a non-profit lawyer like me. Where I work in Northern New Mexico, though, there simply aren’t that many non-profit lawyers lurking around trying to take cases. The two non-profits in the region, including the one I used to run, have limited capacities right now for a lot of completely understandable reasons including a global pandemic, the horrendous toll detention lawyering takes on person, and the fact that there isn’t a ton of funding out there for removal defense work. There are a lot of reasons that ICE puts detention centers in rural places but one advantage is that without proximity to cities, money, law firms, and law schools, it is very difficult for detainees to lawyer up.
Over the years, as ICE detention ramped up in New Mexico, we have burnt ourselves out trying to figure out how to creatively and competently represent more people. As this happened, the US government opened another detention center and then another in our state. For years, as detention beds expanded and the deportation machine became more efficient, I internalized the idea that we had to be more clever, more efficient, and somehow work harder to meet the gap in legal representation and address the crisis that the government was creating. We could help some people but we couldn’t help everyone and sometimes when we tried to help everyone at one time, the services spread too thin and were ineffective. I worried about this shortfall constantly. I still worry about it. But I am starting to be able to tell myself the story differently. I am starting to see that there was never any chance of success here and I am able to remind myself that I am not the person who decided to detain hundreds and hundreds of people in a desperate situation knowing there were not enough lawyers to help them.
And here is where my fears arise about my contributions to the unjust system. I can see that my participation and my hustling to meet the needs of the shitty system has allowed the government to paint a veneer of justice over the entire affair. Sometimes the best we could do would be to show up and pass out translated hand-outs to people about their legal rights or give massive group presentations in several languages explaining options. The government was then allowed to say that these individuals had access to lawyers and no matter how meaningless that contact turned out to be. Then when those people were deported back to their countries, the government could cite the day in court and their access to counsel and legal orientation and, apparently, absolve themselves of any affirmative duty to protect their basic due process rights. Did my participation make this possible? I know it’s a difficult question to ask, especially because it implicates the efforts of my closest and most respected colleagues too. I don’t think questioning the result of our work mitigates what it meant to the people we were able to authentically help. That mattered. I just think trying too hard to do an impossible thing might benefit a small percentage and then completely fail as a liberation strategy for everyone else caught in the system.
I learned a phrase from people organizing a student debt strike: If you can’t, then say you won’t. I believe it means that if you can’t pay your debt then take a more powerful position and say that you won’t, collectively, and you can gain some leverage over the government. It is such an interesting framing and I think it applies to my woes as an immigration lawyer. Here in Northern New Mexico because of conditions of detention in the deportation system designed for people to fail, we cannot provide legal representation to everyone detained. No reasonable organization could with the numbers, the challenges on hand, and the lack of support and funding. I have been telling the government for years that it isn’t fair: we can’t, we can’t, we can’t. I think it might be time to tell them that we won’t. We won’t provide cover for you until the system is more fair. We won’t let you use our work to stoke the fantasy that justice is happening.
The problem with this idea is that it leaves many people abandoned. This sucks and there is a worthy argument that doing something for some people is better than doing nothing for everyone. But that approach doesn’t force the system to change and it leaves so many people abandoned anyway. To me, best practice cannot help 20 percent of people and leave the rest to fend for themselves.
Most recently I was working with dozens and dozens of detained Haitian men who needed representation in asylum court. I had applied for each person to be individually paroled from the detention center and was categorically rejected. This meant that everyone would face rapid deportation proceedings to an extraordinarily dangerous country without counsel. We thought hard about how to provide representation. This detention center is so remote, the barriers they place on access to counsel are so robust, and the space of hearings so breakneck, that we could not divine a strategy to provide representation. We probably could have represented a handful of those folks but not all. We couldn’t. And so we said we wouldn’t. At the meetings with ICE we presented two options: proceed with the deportations against these folks with an understanding that they have no authentic access to counsel or release them all. We refused to let the government believe that these people had legal orientation or legal counsel or even an option to find a lawyer. I have no idea what the internal discussions were with ICE after that meeting and it is hard to point to any particular thing that may have moved them, but today, all but one of the 73 Haitian men detained in that facility have been released.
Talking about withholding legal counsel matters. The Biden Administration continues to ramp up their policies that deport arriving migrants faster and with less chance to fully examine the contents of their claim to refugee status. But when they announce these policies they always include the guarantee that legal service providers will make sure immigrant rights are protected. And then they turn around and make it impossible to execute those services. Maybe it’s time to say we won’t participate in something so unjust. Many of my colleagues did this a month or so ago for the reinstatement of MPP. It would leave some people out in the cold but it would also let others know that the system is broken and that the government is filled with monsters who don’t actually care if people have a fair shake at our legal system. And it would take a lot of skilled organizing. But maybe if lawyers step aside and say we can’t and won’t do this anymore, it would make space for widespread civil disobedience that’s been missing on the border for years.
I write a free newsletter about immigration policy. Anyone can sign up here.
