In pro-immigrant circles, the need for people facing deportation to be represented by counsel is political common sense. Immigrants facing deportation currently confront a notoriously complex area of the law when fighting to remain in the U.S. without the benefit of assigned counsel at government expense. To address this, the Vera Institute of Justice and the Partnership for New Americans recently announced “Fairness to Freedom,” a campaign to win a guarantee of federally funded counsel for immigrants facing deportation.
There is no doubt that achieving this goal would improve individual outcomes for immigrants. But for immigrant communities, what does it mean to win the war? If the goal of movements for immigrant justice is guaranteeing a deportation process for immigrants that more closely comports with notions of due process and the rule of law, then federally funded counsel for immigrants would be the right reform to pursue. But what if winning the war instead means dismantling the deportation regime as we know it — closing detention centers, slashing the budgets of Immigration and Customs Enforcement and Customs and Border Protection, ending the surveillance and arrest of immigrant communities? That is, what if victory really means dismantling the very conditions that subject communities to deportation, and fuel the need for immigration lawyers, to begin with?
This alternative vision raises questions about whether federally funded counsel is the wrong reform to pursue. In my forthcoming article, “Due Process Deportations,” I argue that pushing for federal funding for lawyers for immigrants facing deportation means accepting limitations on the kind of advocacy carried out by immigration lawyers, including restrictions on certain forms of litigation, lobbying, and providing immigrants information about other basic rights — limits that would end up getting in the way of attorney participation in battles to dismantle the mass deportation regime. It would also mean granting more legitimacy to the same courts that offer uneven and unfavorable odds at best, depending on where they’re located — or do not offer hearings at all. Ultimately, it would mean vastly narrowing our vision for what is possible and desirable — shrinking from a goal of free movement and self-determination for all migrants and settling instead on a goal of due process and fair management of deportations for the relative few.
Federally funding lawyers for immigrants would mean vastly narrowing our vision for what is possible and desirable — shrinking from a goal of free movement and self-determination for all migrants and settling instead on a goal of due process and fair management of deportations for the relative few.
To be clear, I am not arguing against immigration lawyering in defense of people facing deportation. Rather, I want to invite us to consider the tensions between the fight for federally funded counsel for immigrants and the fight to dismantle the mass deportation regime. As a deportation abolitionist, I believe it matters what fights we choose to take on, and that we must use discernment to sort between those fights that help us build a future where immigration enforcement is obsolete and one where violent management of migrant populations is perfected. This type of discernment is a crucial abolitionist practice, and organizations like Detention Watch Network have helped uplift this practice in the immigration context, with a recent chart comparing reforms that work towards ending immigration detention to those that risk reforming or expanding it, building on discernment tools generated by organizers in the context of fighting the prison industrial complex.
By focusing our attention on court processes, the fight for federally funded counsel for immigrants obscures the sites where expulsions of migrants are actually happening. Advocating for federally funded counsel for immigrants on the grounds that it will help address the due process crisis relies on one central assumption — that people facing deportation will someday have a moment when their cries for consideration will be heard in court, and that this moment will occur when an attorney could be at their side, helping them argue more powerfully. But for the vast number of people facing deportation in recent years, this actively ignores that a staggering number of people are being removed without any court process at all. These practices include pre-emptive expulsions — where migrants seeking to enter the country are repelled and expelled before ever reaching U.S. soil; through interdiction of migrants at sea; the use of off-shore detention facilities; and the U.S. conditioning aid to Mexico on Mexico’s increasing enforcement at the U.S.-Guatemala border.
More from our decarceral brainstorm
Every week, Inquest aims to bring you insights from people thinking through and working for a world without mass incarceration.
Sign up for our newsletter for the latest.
The Trump administration built on these practices through metering (turning back people seeking asylum protections right before they reach official border crossing points, and only letting in a handful a day) and the so-called Migration Protection Protocols (requiring asylum seekers to wait in Mexico, near the border, even after being allowed to make their asylum claims). The practices also include rapid expulsions of migrants who do manage to make it across the border. The Trump’s administration initiated use of Title 42 of the U.S. code, a 1940s public health law, to expel asylum seekers at the border has resulted in over 1.8 million expulsions since the pandemic began — with no access to a court or even a moment when an attorney, federally funded or otherwise, could intervene. With millions of expulsions and removals happening far from any immigration court, what does it mean for advocates to focus on funding lawyers for an immigration court process?
For those who do have the relative privilege of making it before an immigration judge, features such as geography, judicial assignment, and the limited modes of existing deportation relief end up being determinative of outcomes, even when immigrants have an attorney. Judicial assignment and geography make a tremendous difference; consider that six judges in New York City grant over 90% of asylum cases they review, compared to seven judges in Atlanta who deny over 90% of asylum cases on their dockets. Even putting judicial assignment and geography aside, the forms of relief available to immigrants facing deportation are notoriously slim, and the number of people who can present viable applications for relief has been shrinking for decades. Changes to the immigration laws in 1996 cemented closure and lack of relief as the norm rather than the exception. This holds true even in New York City, where universal representation of detained immigrants facing removal is already a reality; estimates show that even with this cohort, over half will lose their deportation cases. These realities mean that calls for federally funded counsel for immigrants are ultimately calls for the majority of cases to become attorney-assisted orders of expulsion.
I want to avoid a future where one or two decades from now we are reading reflections on the anniversary of the establishment of federally funded counsel for immigrants in which the authors lament the exponential growth of mass deportation while celebrating the expansion of access to counsel. Indeed, increased due process in the criminal system context provides an example: There was ultimately no contradiction between Gideon v. Wainwright’s 1963 promise of counsel to criminal defendants and the growth of the most incarcerated population in world history in the ensuing decades. We must consider the possibility that there also will be no contradiction between the growth of a federally funded immigrant defense corps and an exponential increase in the containment and subsequent expulsions of immigrants.
I want to avoid a future where one or two decades from now we are reading reflections on the anniversary of the establishment of federally funded counsel for immigrants in which the authors lament the exponential growth of mass deportation while celebrating the expansion of access to counsel.
The Biden administration has already shown a commitment to adapting carceral technologies to advance the mass deportation agenda, dramatically expanding the number of immigrants under forms of constant surveillance through the use of ankle shackles, voice, and facial recognition. The federal government’s continued focus on expelling people caught in both the criminal and deportation systems will not be challenged by the addition of more immigration lawyers representing individual immigrants. If anything, the addition of guaranteed lawyers for migrants may justify the continued pipeline from the criminal legal system to the deportation one, with both local and federal officials pointing to their respect for due process in the form of support for universal representation, even as immigrants remain trapped in immigration detention or other forms of carceral surveillance.
Beyond serving as cover for the expansion of mass deportation and its attending technologies, federally funded counsel for immigrants may tie the hands of the very attorneys most equipped to help challenge the practices of mass deportation. Current programs providing federal funding for immigrant representation for children have already shown some of these potential limits in action. In sworn affidavits unearthed by an investigative reporter, attorneys funded by the federal government to represent unaccompanied migrant children revealed that they were actively discouraged from bringing habeas corpus claims to secure the freedom of their migrant clients, resulting in children spending months or years incarcerated in secure lockups or psychiatric treatment homes when viable alternatives where readily available. Through government directives, the attorneys were threatened with the loss of federal funding if they brought legal action against the Office of Refugee Resettlement, the federal agency holding the children. What’s more, well before the overturning of Roe v. Wade, in 2018, the Vera Institute emailed federally funded immigration attorneys (the Vera Institute serves as a pass-through for the funds), instructing them that they were restricted from mentioning abortion rights to migrant teens, even if young people specifically asked for the information. Vera rescinded the guideline after the email was exposed. But the message was clear: In order to ensure access to continued federal funding for deportation-related representation, Vera was ready to limit the ability of attorneys to assist with meeting their clients’ fundamental needs.
Beyond serving as cover for the expansion of mass deportation and its attending technologies, federally funded counsel for immigrants may tie the hands of the very attorneys most equipped to help challenge the practices of mass deportation.
Restrictions on civil legal aid funding — another area where the federal government currently funds attorneys for the poor — offer another cautionary tale. The Legal Services Corporation was created by an act of Congress in 1974 and is the largest funder of civil legal aid in the United States. From the moment of its creation, the LSC prohibited litigation involving abortion, and since then the restrictions have been expanded to prohibiting the use of federal funds for programs engaged in redistricting, lobbying, class actions suits, training for political activities (including picketing, boycotts, strikes or demonstrations), prisoner litigation, and any activities to reform federal or state welfare systems that seek to change a rule or law. In other words, civil legal aid attorneys across the country — who represent poor people every day on matters ranging from family law to housing and foreclosure cases to disability benefits and unemployment — are prohibited from engaging in systemic advocacy. That is, the lawyers who are most likely to come into direct contact with the types of problems that might lend themselves to legal and political intervention on a structural level cannot advocate for structural solutions.
These restrictions provide a preview of what advocates for immigration law reform may face if the federal government begins funding counsel for all immigrants facing removal. Why would we campaign to place such fetters on the corps of attorneys most likely to be aligned with fights to dismantle the mass deportation regime?
The fight for federal funding for immigration counsel considers the problem of deportation as an individual problem; saving (deserving) individuals from the outcome of deportation, creating a class of penal bureaucrats charged with sifting between those who merit relief and those who do not, thus making immigration law and immigration courts more “fair.” However, the broader context — the barricading of the immigration courts, the explosive growth in immigration enforcement budget, the fear this sprawling regime strikes on communities — proves almost completely immune to due process and fairness. Indeed, achieving federal funding for representation for immigrants may prove to be one more example of what critical race theorists term preservation through transformation — with the core functions of mass deportation preserved and reconsolidated even as the procedures for deporting immigrants are tweaked through the addition of counsel.
A push for federal funding for counsel asks us to concede that deportation management is the best we can offer those on the losing end of state processes that sort migrants into those who will survive and those whose survival we disregard.
A push for federal funding for counsel asks us to concede that deportation management is the best we can offer those on the losing end of state processes that sort migrants into those who will survive and those whose survival we disregard. Yet a politics grounded in allegiance to migrants refuses this invitation to look away from the transformative changes necessary to interrupt the processes that produce premature death. Thus, in order to begin to dismantle the mass deportation regime, the answer lies not in trying to match the federal immigration enforcement arsenal lawyer by lawyer and dollar by dollar. Advocates should instead embrace local funding for immigrant representation as one tactic among many for challenging the mass deportation regime from different corners of the country. Ultimately, this is a strategy that calls for transformative demands and local campaigns, that pushes for local funding for local action to fight (inter)national racial bordering regime. It’s an argument for the movement for immigrant justice to stop looking to the federal government for answers to the problems that federal actors themselves are creating.
Image: Ivan Calderon/Unsplash