Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California

  • June 2015
  • 11 Stan.J.C.R.& C.L.
  • Article
Jayashri Srikantiah, David Hausman, and Lisa Weissman-Ward

Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California

Jayashri Srikantiah, David Hausman, and Lisa Weissman-Ward[1]

The recent influx of refugee families migrating to the United States has cast a spotlight on the broken immigration system. Under current U.S. immigration laws and policies, immigrants in Northern California and across the country are not entitled to a lawyer unless they can pay for one or find someone to represent them for free. This Article focuses on the Northern California immigrants who often face the most difficult challenges: those who are locked up while their deportation cases are decided by the courts. An overwhelming majority of these immigrants are forced to face deportation proceedings without a lawyer even though they are behind bars. This is true even for immigrants who have lived in Northern California with their families for most of their lives. When these immigrants lose their cases, after fighting removal from behind bars and without counsel, they face lengthy or permanent separation from their Northern California families or a return to violence in foreign countries.

Introduction

Every day in Northern California, hundreds of immigrants are locked up while the federal immigration authorities conduct removal proceedings to deport them from this country.[2] For these immigrants, deportation can mean permanent separation from children and spouses or a return to a foreign country where they face violence or torture. Despite the high stakes, the U.S. immigration system does not provide lawyers to immigrants who cannot afford them.[3] As a result, the rate of legal representation for immigrants who are locked up while in removal proceedings is abysmally low—we found that only one third of detained immigrants in Northern California were represented by a lawyer at any point during their proceeding. At the same time, the number of deportations across the country and in Northern California has skyrocketed: 271,279 proceedings were initiated in the nation’s immigration courts in fiscal year 2013.[4] The result is a crisis in the largest immigration courts, including the San Francisco Immigration Court, which has a backlog of over 25,000 cases as of June 2014.[5] As the Article describes below, large numbers of individuals—including those with longstanding family and community ties—face deportation from Northern California without the help of a lawyer.

Unlike criminal defendants, who are constitutionally entitled to a lawyer even when charged with relatively minor offenses, the federal government has taken the position that immigrants facing deportation generally do not have the right to counsel unless they can pay for a lawyer or find someone to represent them for free.[6] An immigrant who has lived in Northern California for most of his life can face permanent banishment from his family and community because he is behind bars and has inadequate counsel to help him navigate the complexities of the immigration legal system.

This Article focuses on immigrants who are locked up during their removal proceedings because they are the least likely to be represented by counsel and face the highest barriers to representing themselves. Like other unrepresented individuals facing removal, detained immigrants must navigate the extraordinarily complex immigration law system on their own. However, they face additional, often insurmountable barriers because they are behind bars. Detained immigrants cannot work to pay for their own representation. While locked up, they suffer from limited access to legal materials, restrictions on outside visits from family and friends, and limitations on phone calls and mail.[7] When these immigrants are forced to represent themselves, the already overburdened immigration court system is further impacted because immigration judges must spend more time on each case in order to determine whether the immigrants have defenses to deportation. On behalf of the National Association of Immigration Judges (NAIJ), Judge Dana Marks of the San Francisco Immigration Court has written: “NAIJ strongly endorses initiatives which increase the likelihood that respondents in Immigration Court proceedings are represented by attorneys.”[8]

The nation’s flawed deportation system—which imposes removal on many of Northern California’s immigrants without giving them access to counsel—has far-reaching effects on Northern California’s families and communities. Northern California includes several counties that are among the top ten in California with the highest percentage of foreign-born residents—including Santa Clara County, San Mateo County, San Francisco County, Monterey County, and Alameda County.[9] Deportation affects not only the immigrant in proceedings but also his family members, who may be U.S. citizens or lawful permanent residents. Our survey of Bay Area nonprofits providing legal services to immigrants that have been locked up reveals over 50% of the immigrants had lived the United States for at least ten years. Of the surveyed detainees, 77% had family members living at home in the United States, and 65% were employed before being subjected to deportation proceedings.

The deportation of a family’s breadwinner or primary caregiver has devastating consequences for the spouse and children who depend on his earnings, including harm to their financial, educational, physical, and mental wellbeing.[10] Deportation of a parent increases the likelihood that a child will enter the child welfare system and suffer lasting psychological harm that affects their long-term economic and social stability.[11] The social and economic costs of deportation are largely borne by Northern California’s counties, which administer public health, education, and social services.

New York City recently became the first city to fund the full representation of detained immigrants,[12] after two extensive reports by the Katzmann Study Group advocating for such representation.[13] While California and cities like San Francisco have started to recognize the acute challenges that recent child migrants from Central America face—through recently announced programs to fund legal representation for them[14]—no program currently exists to fully fund the representation of detained immigrants in Northern California.

This Article describes the first studies regarding the extent and effect of legal representation for Northern California’s immigrant detainees. The Article summarizes the findings of two studies we conducted. The first study examines available data from the Executive Office of Immigration Review (EOIR)—which includes San Francisco’s Immigration Court—to analyze the effect of representation on case outcomes for detainees. In the second study, we surveyed every Northern California nonprofit organization that provided low- or no-cost representation to more than five detained adult immigrants before the San Francisco Immigration Court over approximately the past year. The survey results document what Northern California immigrant families already know: local nonprofits are working at full capacity but only have the resources to provide services to a very small number of immigrant detainees.

The Article concludes by suggesting that Northern California cities and counties establish pilot programs to provide additional representation to Northern California’s detained immigrants.

I. Our Key Findings

The vast majority of detained immigrants in removal proceedings before the San Francisco Immigration Court were not represented by counsel. Roughly two-thirds of detained immigrants had no legal representation at any point during their removal proceedings.

Represented detainees were at least three times more likely to prevail in their removal cases than detainees not represented by counsel. Based on our analysis of all individuals detained during a yearlong period, detained individuals without counsel only prevailed 7% of the time. By contrast, those with lawyers prevailed 27% of the time. While not proving causation, this is highly suggestive of a correlation between lack of counsel and negative outcomes.[15]

Over 50% of detainees represented by surveyed nonprofits had lived in the United States for at least ten years. Of the detainees represented by surveyed nonprofits, 77% lived with family members in the United States. Before being placed in detention, 65% of detainees were employed.

Detainees represented by the surveyed nonprofits won their deportation cases 83% of the time. This success rate stands in stark contrast to the results of the Executive Office of Immigration Review (EOIR) study, in which detained individuals without counsel only prevailed 7% of the time.[16]

Detainees represented by the surveyed nonprofits were granted bond over 71% of the time in which it was requested. The detainees were released and could fight their cases while employed, with the ability to more easily access documents helpful to their immigration cases, and at home with the support of their families.

II. Deportation and Detention in Northern California

Over approximately the past year,[17] the Department of Homeland Security (DHS) detained 4152 immigrants under the jurisdiction of the San Francisco Immigration Court while DHS pursued their deportation.[18] These people—including longtime lawful residents of the United States—were not detained because they faced criminal charges. They were incarcerated by DHS while their deportation cases were pending in immigration court.[19] Some individuals faced detention for many months while their cases were resolved.[20]

A. Conditions of Immigration Detention

In Northern California, DHS currently holds most detainees in three county-run facilities: the Yuba County Jail in Yuba, the Rio Cosumnes Correctional Center (RCCC) in Sacramento, and the West County Detention Facility in Richmond.[21] Together, these facilities had an average total population of 599 immigrant detainees per day in fiscal year 2014.[22] Immigration detention means incarceration in jail facilities with barbed wire and cells, alongside those serving time for criminal convictions.[23] Detainees held at these facilities wear prison uniforms and face restrictions on visitation, movement, meals, education, phone access, and recreation. Before detainees are transported to immigration court for hearings, Immigration and Customs Enforcement (ICE) officials wake them early in the morning—sometimes as early as 2 a.m.—with some detainees having no idea where they are going.[24] They may be subject to solitary confinement or other restrictions. Human rights organizations have documented problems with detention conditions, such as the excessive use of restraints and lack of access to healthcare and exercise.[25] One attorney we interviewed reported that her detained clients only see a few hours of daylight per day.[26] In San Francisco, with the help of pro bono counsel, a class of detainees has challenged DHS’s practices restricting their ability to make telephone calls from detention.[27]

Because of how difficult immigration detention is—particularly for immigrants with family or those who previously suffered torture and abuse—immigrants may give up strong cases simply to prevent detention. One federal court case recounts how an asylum seeker agreed to her removal after seventeen and a half months in detention. Detention was, in her words, “affecting me physically and destroying me mentally.”[28]

B. Complexity of Immigration Laws and Procedures

For many detainees, an immigration removal proceeding is a complicated, multiple-step process involving many federal agencies, numerous immigration statutory and regulatory sections, voluminous agency and federal case law, and detailed factual evidence from the United States and abroad. It is no surprise that the immigration laws have been ranked second only to the Internal Revenue Code in complexity.[29]

In the typical case, DHS starts immigration removal proceedings against an immigrant by filing a Notice to Appear (NTA) in immigration court.[30] At this point, DHS usually makes a decision whether to detain the immigrant. At the immigrant’s first hearing—called a master calendar hearing—the immigrant can challenge DHS’s charges by arguing that he should not have been placed in removal proceedings. The legal arguments involved can be complex, involving precedent from the Ninth Circuit Court of Appeals and the U.S. Supreme Court.[31] Around the same time, the noncitizen can separately request that the immigration judge reconsider DHS’s decision to detain him, asking the judge to grant release on bond, a legally and factually detailed process typically involving testimony and the submission of written testimony and documents that show residence, employment, family ties, and rehabilitation, if appropriate.[32] If the immigration judge decides to continue to detain the immigrant—or if the immigrant cannot afford to pay bond—he stays in detention while fighting his case.

In cases where the immigrant does not have a legal challenge to DHS’s charges or where he cannot convince the immigration judge that the charges are legally flawed, the immigrant may request discretionary relief from removal. Such relief includes, but is not limited to, asylum, cancellation of removal, and adjustment of status—types of relief available to individuals fleeing persecution, those with longstanding ties to the United States, and those with U.S. citizen or lawful permanent resident family members.[33] Each of these types of relief requires the immigrant to establish legal eligibility—another potentially complicated legal inquiry—and also show that he merits relief in the exercise of discretion based on the facts.[34] The factual investigation required for these types of relief encompasses obtaining witness declarations from family members, employers, friends, religious leaders, and others; research on the conditions in the immigrant’s country of origin; paper records like medical, employment, and tax records; and expert statements from psychologists, doctors, and social scientists. Successful applications can be accompanied by hundreds of pages of supporting factual evidence. In some cases, the immigrant may also be eligible to apply for relief to a different agency, the United States Citizenship and Immigration Services (USCIS), if the immigrant can demonstrate that he was a victim of crime or domestic violence, or if he entered the United States as a child and completed his education here.[35] After proceedings before an immigration judge in San Francisco, the immigrant can appeal to the Board of Immigration Appeals (BIA), an administrative reviewing body, and potentially the Ninth Circuit Court of Appeals.[36] The entire process can last months and even years.[37]

For detainees in Northern California, removal proceedings often involve multiple hearings before a San Francisco immigration judge in a courtroom. Detainees are not entitled to lawyers as a matter of course. They must pay for a lawyer or find pro bono help if they want legal counsel.[38] By contrast, DHS, the agency that serves the prosecutorial function in removal proceedings, is represented by a government attorney. For unrepresented immigrant detainees, the immigration judge who decides the case, an employee of the Executive Office of Immigration Review (EOIR) who wears a robe and assumes the judicial role in the proceedings, may be the only person who reviews the detainee’s case. But immigration judges are hampered in their ability to do so because they are extremely overburdened. In fiscal year 2014, for instance, eighteen San Francisco immigration judges were responsible for 29,225 pending cases.[39] Immigrant detainees who are not represented reduce the efficiency of these already overburdened immigration judges. Immigration Judge Dana Marks of the San Francisco Immigration Court explains that, when an immigrant detainee lacks legal representation, immigration judges may use valuable time and resources figuring out the facts and the law of the case.[40] In a recent survey of the nation’s immigration judges, 92% agreed: “When the [immigrant] has a competent lawyer, I can conduct the adjudication more efficiently and quickly.”[41]

C. Effect on Northern California Immigrant Families and Communities

Many of the individuals that ICE detains and tries to deport from Northern California have deep and longstanding ties to Northern California families and communities. Some are lawful permanent residents. Those who are undocumented are likely to have U.S.-citizen children and live in “mixed-status” families with some members who are U.S. citizens, others who are lawful residents, and still others without immigration status.[42] Several counties in Northern California have high proportions of foreign-born residents, including Santa Clara County, San Mateo County, San Francisco County, Monterey County, and Alameda County.[43] For example, San Francisco’s adult foreign-born population comprises nearly 40% of the city.[44] Foreign-born individuals make up 39% of the population of the City of San Jose[45] and over 30% of the population of Santa Clara County.[46] Many of these individuals have longstanding ties to the Bay Area. One recent study of San Mateo County found, for example, that “[t]he median length of time that [foreign-born residents] had lived in [the county] was 14 years.”[47]

The deportation and detention of an immigrant with Northern California family ties materially affects the economic, emotional, and physical wellbeing of children and spouses/partners in Northern California communities, many of whom are U.S. citizens or lawful permanent residents. Detention and deportation of a family’s primary wage earner or primary caregiver has a predictable consequence for family members. A recent article concluded that immigration-related arrests cause household income to drop drastically, while one-fourth families were unable to stay together after the arrest.[48] The economic realities that hit when a household’s main (or sole) wage earner is deported translate into increased crowding in living quarters, alarming food scarcity, and poorer health outcomes for those family members left behind.[49] The Urban Institute’s 2010 study of these families of detainees found that 72.5% experienced short-term food hardship, while 82.6% experience long-term hardship.[50]

If both parents are deported, their children may end up in the child welfare system. The American Immigration Council estimated that in 2011, 5100 children with a detained or deported parent became wards of the state.[51] Even when one parent is able to retain custody of children, removal shatters families’ emotional bonds. Human Impact Partners noted in its article documenting data from extensive interviews with non-citizens and their families that detention and deportation deeply damage familial relationships.[52] An Urban Institute study found that in the first six months after an immigration arrest affecting their parents, two out of three children demonstrated changes in eating and sleeping habits, more than half cried more and were more afraid, and over a third were more withdrawn, clingy, angry or aggressive.[53] Children who witnessed their parents’ arrest exhibited more drastic behavioral changes.[54] Behavioral challenges like aggression and withdrawal negatively affect a child’s school readiness and social adjustment, which can have longer-term consequences for the child’s literacy skills, employment prospects, and mental health.[55]

D. Immigrants Fleeing Persecution Abroad

Under current immigration law, an immigrant who comes to the United States fleeing persecution abroad is often detained while his or her case is resolved in the San Francisco Immigration Court. Removal proceedings in these cases are a matter of life and death because individuals face threats of torture and death if deported. The nonprofits we surveyed have represented, among others: lesbian, gay, bisexual and transgender (LGBT) individuals who were attacked and threatened because of their sexuality; women escaping domestic abuse whose claims were ignored by the police in their countries of origin; and Central American refugees fleeing gang violence. Amnesty International has found that asylum seekers “may be detained for months or even years as they go through deportation procedures that will determine whether or not they are eligible to remain in the United States.”[56] Detention worsens these individuals’ already fragile mental states, resulting in even less capacity to handle the challenges of removal proceedings. Medical research confirms that detention of asylum seekers results in high levels of psychological distress, which is exacerbated by inadequate mental health services in immigration detention facilities.[57] These and other individuals may face removal proceedings and detention when they try to make their claim for asylum or other protection from persecution. Nevertheless, like other immigrants in removal proceedings, asylum seekers and others fleeing persecution are not entitled to attorneys unless they can pay for it themselves or find a pro bono lawyer.

III. Analysis of Executive Office for Immigration Review (EOIR) Data

Despite the harsh effects of deportation on the individual, her family, and her community, the immigration system does not generally provide appointed counsel to people facing deportation in Northern California or anywhere in the country.[58] We analyzed immigration court outcomes based on data obtained through a Freedom of Information Act (FOIA) request. We considered all removal cases (8138 in total) in which an immigration judge made a final decision at the San Francisco Immigration Court during the time period between March 1, 2013 and February 28, 2014.[59] Our goal was to determine how many individuals in San Francisco Immigration Court are able to obtain representation—either by paying for it or finding a nonprofit or pro bono provider—and how much more likely those with counsel are to win their cases. As we explain further below, our analysis of the EOIR data revealed that detainees with lawyers are more than three times more likely to win their case than those without. For the calendar year we analyzed, detainees without representation only had a 7% chance of winning their case; detainees who were represented by counsel had a 27% chance of winning their case. We include a caveat, however: because our study is of actual EOIR data, and not a randomized experiment relating to representation, we can conclude only that representation is associated with better case outcomes, not that representation necessarily causes the outcomes. Other factors—including that immigrants with stronger claims may be more likely to find representation—could be responsible as well for the better case outcomes.[60]

The cases in this time period can be broken into three categories: individuals who were never detained during the course of proceedings; individuals who were initially detained but later released; and individuals who were detained throughout proceedings.[61]

 

Figure 1: Breakdown of Individuals in Removal Proceedings

A. Representation Levels for Detained Immigrants

Despite the fact that detained individuals with attorneys are far more likely to avoid deportation, detainees are far less likely to have lawyers. For our data set, the proportion of detained individuals with representation (32%) is less than half of the proportion of those not detained with representation (84%). Figure 2 shows the percentage of cases in which the immigrant had attorney representation. We make this comparison for each category of individuals in proceedings: those detained throughout their proceedings, those detained but later released, and those never detained.

 

 

Figure 2: Percentage of Cases in Which Immigrant Was Represented by an Attorney

B. Detained Individuals with Lawyers

Represented detainees avoided deportation 27% of the time, whereas unrepresented detainees avoided deportation only 7% of the time.[62] For all of the three groups, legal representation meant that individuals were far more likely to ultimately prevail in their cases. In cases involving detained persons, individuals with lawyers had three times as high a chance of prevailing as those without counsel. Figure 3 compares outcomes for cases in which individuals were represented by counsel against those not represented by counsel. We make this comparison for each category of individuals in proceedings: those detained throughout their proceedings, those detained but later released, and those never detained.

 

 

 

Figure 3: Cases in Which Immigrant Succeeded in Fighting Deportation

C. Applications for Relief from Removal

In deportation proceedings, immigrants can fight to stay in the United States by filling out an application for relief. In that application, they can argue that the judge should let them stay in the country because of family and community ties, or because they fear persecution abroad. Our study revealed that detained immigrants with lawyers were dramatically more likely to file relief applications than those without lawyers. Detained immigrants were more than twice as likely to request relief if represented; nondetained immigrants were more than three times as likely to request relief if represented; and initially detained immigrants were more than four times as likely to request relief if represented.[63] Figure 4 compares the number of applications for relief from removal for individuals with and without lawyers.

 

 

 

 

Figure 4: Percentage of Individuals Applying for At Least One Form of Immigration Relief

D. Representation at the Early Stages of Removal Proceedings

Under immigration law, after DHS makes an initial bond determination, immigrants can request a bond hearing, where an immigration judge considers whether the person should be released.[64] If an individual is released on bond, she can fight removal from outside of detention, where she is more likely to obtain counsel and to prevail in her proceedings, given the increased access to employment, family support, community involvement, and paid counsel that release likely brings.

Attorneys are critical to helping detainees obtain release on bond. Because bond hearings typically occur on a short timeline, detainees have very little time to collect and submit key documents, such as letters from family or employers, tax records, and proof of family relationships.[65] It is virtually impossible for unrepresented detainees—who are held in prison-like conditions with limited access to mail and telephones and virtually no access to the Internet—to obtain these critical records.

Attorneys can also advocate for lower bond amounts. Our examination of the EOIR data set revealed that the average bond amount set by San Francisco Immigration Court judges during the study period was $5,742. If immigration judges set high bond amounts, detained individuals who cannot pay the bond amount will not be released. Even those with some funds to pay high bond amounts face an impossible choice: should they use their limited funds to pay bond, or should they pay for an attorney to represent them in their removal proceedings? As the recent Katzmann Study Group reports in New York have clarified: “lack of representation and high bond amounts create a vicious cycle, with access to counsel serving as an important factor in obtaining bond and detention creating a major obstacle to obtaining counsel.”[66] Figure 5 shows the prevalence of bond amounts that immigration judges set for immigrants who were detained while fighting their deportation cases.

 

 

Figure 5: Bond Amounts for Immigrants Released on Bond While Fighting Deportation Cases

IV. Analysis of Nonprofit Removal Defense Provider Survey

Data for the nonprofit removal defense provider data set was drawn from a survey of nonprofits in Northern California that provided representation, at low cost or no cost, to at least five detained immigrants in removal proceedings in San Francisco Immigration Court, during the time period between April 1, 2013 and April 1, 2014. The data set is necessarily affected by the intake processes of the surveyed nonprofits, each of which employ different criteria for selecting cases for representation. Our analysis of the survey data does not take into account the potential impact of the surveyed nonprofits’ case selection processes.

A. Survey Methodology

Northern California, and in particular the Bay Area, is fortunate to have a rich and competent group of nonprofits currently engaged in detained removal defense work on behalf of indigent immigrants. As stated in our key findings, these nonprofits’ rates of success in winning bond for their detained clients is 71%, well above the bond rates generally found in our EOIR data analysis, even for those who have attorneys. Similarly, their success rate in their clients’ removal hearings is 83%, far exceeding the general San Francisco EOIR averages. Unfortunately, however, the nonprofits currently engaged in detained removal defense work can only meet a small fraction of the need for counsel.

We surveyed all of the nonprofit organizations in Northern California that represented at least five or more adult detained immigrants in removal proceedings before the San Francisco Immigration Court for a low or no fee between April 1, 2013 and April 1, 2014.[67] All of the organizations contacted responded to the survey.[68] The organizations include: Asian Americans Advancing Justice, Asian Law Caucus (San Francisco, CA); Central American Resource Center (San Francisco, CA); Centro Legal de la Raza (Oakland, CA); Community Legal Services in East Palo Alto (East Palo Alto, CA); Dolores Street Community Services (San Francisco, CA); East Bay Community Law Center (Berkeley, CA); Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (San Francisco, CA); Pangea Legal Services (San Francisco, CA); Social Justice Collaborative (Oakland, CA); and University of California, Davis, School of Law, Immigration Law Clinic (Davis, CA).

The nonprofits we surveyed provide a wide range of detained removal defense work, including, but not limited to: legal challenges to removability; representing immigrants in persecution and torture based claims, such as asylum, withholding of removal, and relief under the Convention Against Torture;[69] discretionary waiver applications for certain long-term permanent residents;[70] discretionary waiver applications for certain long-term nonpermanent residents;[71] applications for relief based on being a victim of a crime (U-Visa, T-Visa, VAWA);[72] applications for relief based on certain juvenile dependency or family court findings (SIJS); applications for temporary residency for certain nationalities;[73] and requests for prosecutorial discretion, including requests for termination of proceedings, administrative closure of proceedings, and Deferred Action for Childhood Arrivals (DACA).[74]

The surveyed organizations have an average of 2.3 full-time staff attorneys working on detained removal cases. The average number of languages (not including English) spoken by members of the staff at a nonprofit organization is approximately three, with a total of fourteen different languages spoken by staff at the nonprofits surveyed (Spanish, Greek, Tamil, French, Farsi, Italian, Portuguese, Cantonese, Mandarin, Vietnamese, Urdu, Hmong, German, and Sierra Leone Creole). Six of the ten surveyed nonprofits employ income criteria in selecting cases, in that they will only represent clients below a designated income cutoff.

For purposes of reporting the survey results, the charts below refer to each of the nonprofit organizations by a randomly assigned number (Org. 1 to Org. 10). The survey questions relating to cases accepted, cases completed, and results were limited to the time frame of April 1, 2013 to April 1, 2014. The surveyed nonprofits accepted a total of 214 cases during that period.[75]

B. Types of Clients Served and Community Members Impacted by Legal Services

The survey results provide important information about the demographics of the detained immigrants served, including their length of residency in the United States and their family ties. Our survey results confirm what Northern California immigrant families already know: many of the detained clients of local nonprofits have deep and longstanding ties in this country.

Over 53% of the detained clients represented by the surveyed nonprofits had lived in the United States for ten or more years.

77% lived with other family members prior to their detention by ICE.[76]

48% were separated from children who were living in their home.[77]

65% were employed in the United States before being detained.[78]

78% resided in Northern California before their detention.[79]

Over 57% of the relatives living at home and separated from their detained family members were United States citizens.[80]

C. Nonprofit Organizations’ Success Rates

Perhaps one of the most notable findings of the survey was the remarkably high level of success that the surveyed nonprofit organizations achieved on behalf of their clients.[81] For example, these organizations obtained bond and secured released in 71% of the cases in which they requested it.[82] The average bond amount issued by the immigration judges (where bond was requested and obtained) was $3411.[83] This is significantly lower than the $5742 average bond amount in San Francisco based on the EOIR dataset analysis in Figure 5. This difference—amounting to $2331—is particularly substantial for indigent detainees, who may not have the resources to pay for high bonds and are not able to work while detained. Figure 6 shows the organizations’ success rates in bond hearings: the percentage of bond hearings in which the immigration judge set a bond and the individual was released.

 

Figure 6: Percentage of Cases in Which Bond Requested and Individual Released on Bond, by Nonprofit

In addition to achieving success at obtaining release from detention for their clients, the nonprofit organizations surveyed also achieved impressive success in securing successful resolutions of their cases. In 83% of the cases completed by nonprofits during the surveyed time period,[84] the detained immigrant was permitted to remain in the United States indefinitely. Figure 7 shows the percentage of cases completed in which the immigrant was permitted to remain in the United States.

 

Figure 7: Percentage of Cases in Which Immigrants Won and Were Permitted to Stay in the United States

The average rate of success for the nonprofits surveyed (83%) is well above the average rate of success overall for those without counsel (11% in the EOIR data set).[85] In a comparison of the two data sets, the rates of success for the surveyed nonprofits are also significantly higher than even those for detainees who did have counsel, shown in Figure 3 to be 33%.

D. Nonprofit Organizations’ Capacity

Unfortunately, despite the levels of success, the nonprofits currently engaged in this work are only able to assist a fraction of those who are in need. As described above, the average number of attorneys working on the detained removal defense docket is only 2.3 per organization. A total of twenty-three attorneys work with the surveyed nonprofits.

The nonprofits surveyed overwhelmingly indicated that the reason for not accepting more cases was a lack of staff and funding. The organizations surveyed accepted a total of 214 cases for representation during the period between April 1, 2013 and April 1, 2014. All of the organizations indicated that, with this caseload, they lacked resources to represent more individuals facing removal. Of the ten organizations surveyed, six collected data on cases not accepted for representation during the surveyed time period. The number of cases these six organizations were unable to accept exceeded one thousand.[86]

The survey results demonstrate two critical points. First, representation by Northern California nonprofits is associated with a high rate of successful outcomes for detained individuals in removal proceedings. Because most detained immigrants represented by surveyed nonprofits have family and community ties in the United States, the result of the nonprofits’ success is that their clients can remain in Northern California with their families. Second, removal defense nonprofits in Northern California do not have the capacity to meet the current and significant need of detained immigrants for competent counsel.

Conclusion

Northern California’s families know all too well the realities of detention and deportation in our communities. Deportation means banishment from families, homes, and communities. Members of Northern California’s immigrant communities routinely appear in immigration court alone to fight their deportation, despite typically facing a government attorney well versed in highly complex immigration law. The challenges of deportation in Northern California have grown as the annual rate of deportation skyrockets. Thousands of individuals are detained in facilities far from their families, without an attorney to advocate on their behalf.

This Article examines, for the first time, the concrete effect of representation for Northern California’s detained immigrants. We have learned that detained immigrants with lawyers are over three times more likely to prevail in their cases. Many of these individuals have viable claims that require substantial legal and factual preparation. And the local nonprofit removal defense providers—though working at full capacity—are not able to handle the crushing need for representation. These nonprofits informed us that they are forced to turn away cases because they lack the staffing and resources to provide representation to immigrants in need.

The next step for addressing Northern California’s immigrant representation crisis is the development of a realistic framework for indigent removal defense representation. New York City has recently provided a model for such representation through the funding and creation of a universal representation program for every indigent immigrant detainee facing removal proceedings in New York’s immigration courts.[87] Northern California should follow this lead and establish a publicly funded universal representation framework for detained immigrants. Because of the scale of the representation crisis we face in Northern California, the solution will require partnerships between nonprofit, pro bono, and private bar legal providers; ICE and EOIR; state, city, and county governments; and the philanthropic community.

 

Appendix A: Assumptions of EOIR Data Analysis

The study used the last year of available data (March 1, 2013 to February 28, 2014). Some proceedings are excluded because they lacked a final outcome during this time period. This means that the study slightly underestimates the total number of proceedings. The study may also overestimate slightly how many of the cases were detained throughout; some may have been released after the data cutoff date.

In order to measure whether a case was represented, the study asked, for each case, whether the alien was represented during any “proceeding.” A proceeding in this context does not mean a proceeding in the formal sense, but rather a row in the “proceeding” table. Often cases have more than one proceeding row associated with them even if there was only one formal proceeding—for example, a new proceeding is generated when there is a change of venue. In order to be sure that we are not underestimating the rate of representation, we coded a case as represented for the merits hearing if any proceeding had a representative associated with it at any time. For example, if a case had five proceeding rows (which is unusual), and just one of those rows referred to a lawyer, the study included the case as represented.

Unlike the New York Immigrant Representation Study, our study was unable to distinguish between dependent and nondependent cases. We believe that an adjustment for such cases is unlikely to be significant.

We measured detention status as of an individual’s last hearing date. There is therefore no way to distinguish between immigrants who spent long and short periods in detention.

The study coded cases as not leading to deportation if the EOIR outcome was any of: “Alien Maintains Legal Status,” “Case Terminated by IJ,” “Conditional Grant,” “Granted,” “Relief or Rescinded,” “Legally Admitted,” Prosecutorial Discretion – Terminated,” “Failure to Prosecute (DHS Cases Only),” “Haitian,” “Temporary Protected Status,” and “Prosecutorial Discretion - Admin Close.” In order to avoid counting changes of venue as positive outcomes, we included only cases in which the last EOIR data entry was in San Francisco court.

The study coded cases as “Removal/VD” if the EOIR outcome was any of “Remove,” “Voluntary Departure,” “Excluded,” or “Deported.” The first two of these were overwhelmingly the most common; the last two codes are remnants from an old statutory regime.

A small number of cases during the study period had outcomes with unintelligible outcome codes. There were twenty never detained cases with such codes, eleven initially detained cases, and ten detained cases throughout proceedings. Given the overall number of cases, this level of measurement error is acceptable; regardless of the actual outcomes of these cases, the general results we note would hold.

Appendix B: Breakdown of Relief Applications by Type

Table 1 shows the percentage of detained cases in which relief applications were filed.[88]

LPR-Related

NLPR-Related

Other

Persecution

Voluntary Departure

Represented

16%

11%

2%

37%

19%

Unrepresented

4%

1%

0%

9%

18%

 

Table 2 shows the percentage of initially detained cases in which relief applications were filed.

 

LPR-Related

NLPR-Related

Other

Persecution

Voluntary Departure

Represented

5%

29%

3%

42%

23%

Unrepresented

0%

2%

0%

10%

8%

 

Table 3 shows the percentage of never detained cases in which relief applications were filed.

LPR-Related

NLPR-Related

Other

Persecution

Voluntary Departure

Represented

3%

40%

8%

52%

18%

Unrepresented

1%

6%

1%

16%

3%

 

Appendix C: Assumptions of Nonprofit Survey Data Analysis

Of the ten organizations surveyed, six organizations indicated that they maintained separate data for their detained and nondetained removal defense docket. Of the four organizations that reported that they did not keep separate data, each was nevertheless able to review the detained docket files in order to report the requested information accurately.

The survey questions relating to the number of cases accepted and the results of those cases, including bond results and substantive outcome results, were limited to the following time frame: April 1, 2013 to April 1, 2014. This means that there were a significant number of cases accepted during the time frame for which there were no final results in San Francisco Immigration Court as the cases remained pending as of April 1, 2014.

Our analysis was necessarily affected by the accuracy of each surveyed organization’s self-reporting as to their case outcomes.

Our survey analysis does not examine representation or outcomes when the immigrant or DHS appealed an immigration judge’s decision to the BIA, or when the immigrant subsequently petitioned for review of the BIA decision to the Ninth Circuit Court of Appeals.

The total number of cases accepted by the surveyed nonprofits from April 1, 2013 to April 1, 2014 was 214.

The survey instrument referred to throughout this Article was developed by Stanford Law School Immigrants’ Rights Clinic and was based, in large part, on a similar survey used in the New York representation study. After developing the survey, we first created a list of nonprofit organizations currently engaged in representing detained adult immigrants in removal proceedings before the San Francisco Immigration Court. The list was a result of queries regarding which organizations were engaged in this work. After identifying the ten organizations in Northern California currently engaged in this work, we emailed each of them the eighteen-page survey instrument. The survey instrument asked general questions about number of attorneys working on the detained immigrant docket, the experience of the attorneys, and the types of services provided. The survey instrument also asked more specific questions related to the types of detained services provided to adults from April 1, 2013 to April 1, 2014 and the results of the services provided to detained immigrants. The survey instrument asked questions relating to current funding sources and barriers encountered in the representation of detained immigrants. Subsequent to receiving the responses, we then engaged in follow-up to ensure accuracy before compiling the information and reporting it. The survey instrument is on file with the authors.

 

 



† The authors would like to thank students Natalia Renta, Alfredo Montelongo, and Kara McBride of the Stanford Law School Immigrants’ Rights Clinic, who contributed substantial work on the survey portion of this Article. The authors would also like to thank the members of the Northern California Collaborative for Immigrant Justice, on whose behalf a substantially identical version of this Article was released as a Report. We are grateful to the Collaborative’s advisory board members for their feedback on this Article. The advisory board includes: Assistant Chief Immigration Judge Print Maggard, San Francisco Immigration Court; Christina H. Lee, Becker & Lee LLP (EOIR co-liaison to the San Francisco Immigration Court for the American Immigration Lawyers Association); Meredith Linsky, Director, American Bar Association Commission on Immigration; Jack W. Londen, Partner, Morrison & Foerster; Zachary M. Nightingale, Partner, Van der Hout, Brigagliano & Nightingale; Luis J. Rodriguez, President, State Bar of California; and Jon B. Streeter, Partner, Keker & Van Nest. We thank the Katzmann Study Group, which conducted key research in New York about the effect of counsel in removal proceedings, for providing the inspiration for this Article. Many members of that study group—including Peter Markowitz, Veyom Bahl, Nisha Agarwal, Stacey Strongarone, and Oren Root—have provided helpful advice and guidance in the drafting of this Article and the Article on which it is based. We also gratefully acknowledge Immigration Judge Dana Marks, President of the National Association of Immigration Judges, who served as a resource regarding information about the impact of unrepresented cases on the immigration court system. This Article, and any errors, are solely the work of the authors.

 

 

[2].In fiscal year 2014, Northern California detention facilities had an average population of 599 immigrant detainees per day. See ERO Custody Management Division, FOIA Response 14-03470, Authorized Facilities with FY 03-14 ADP (2013), available at http://www.ice.gov/doclib/foia/dfs/detaineepopfy03-fy14.pdf.

[3].The immigration statute provides:

In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

 8 U.S.C. § 1362 (2013). The Executive Office of Immigration Review (EOIR) recently launched efforts to assist some children in removal proceedings through the justice AmeriCorps program. Press Release, Corporation for National & Community Service, Justice Department and CNCS Announce New Partnership to Enhance Immigration Courts and Provide Critical Legal Assistance to Unaccompanied Minors, Corp. for Nat’l & Community Serv. (Jun. 6, 2014), http://www.nationalservice.gov/newsroom/press-releases/2014/justice-department-and-cncs-announce-new-partnership-enhance. And following an order from a district court in Franco-Gonzalez v. Holder, the federal government has provided procedures for the identification of mentally ill detainees found incompetent and appointed representation in certain circumstances. No. CV 10-02211 DMG (DTBx), 2013 U.S. Dist. WEST 3674492 (C.D. Cal. Apr. 23, 2013); see Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, to Thomas Homan, Acting Executive Associate Director, Enforcement and Removal (Apr. 22, 2013), available at http://www.ice.gov/doclib/detention-reform/pdf/11063.1_current_id_and_infosharing_detainess_mental_disorders.pdf.

[4].U.S. Dep’t of Justice Office of Planning, Analysis, & Tech, FY 2013 Statistical Year Book A2 (2014), available at http://www.justice.gov/eoir/statspub/fy13syb.pdf.

[5].Transactions Record Access Clearinghouse, Immigration Court Backlog Tool: Pending Cases and Length of Wait in Immigration Courts, TRAC Immigration, http://trac.syr.edu/phptools/immigration/court_backlog/ (last visited Mar. 29, 2015).

[6].In 1893, the Supreme Court held that criminal constitutional protections do not apply to deportation proceedings because they are purely civil in nature. Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893).

[7].Amnesty Int’l, Jailed Without Justice: Immigration Detention in the USA 32-36, (2007) [hereinafter Jailed Without Justice], available at http://www.amnestyusa.org/pdfs/JailedWithoutJustice.pdf.

[8].Letter from Hon. Dana Leigh Marks, President, National Ass’n of Immigration Judges (Mar. 22, 2013) (on file with authors) [hereinafter Hon. Dana Leigh Marks letter].

 

[9].Santa Clara Cnty. Office of Human Relations, A Public Forum on Immigration: Immigrant Voices 17 (2010) [hereinafter Santa Clara County Report], available at http://www.sccgov.org/sites/ohr/Publications%20and%20Articles/Documents/Immigrant-Voices.pdf. According to the 2006 Census, Santa Clara County has the highest percentage of foreign-born residents in California. Id. As of 2010, San Mateo County “ranked fourth among counties in California and eighth across the nation in the concentration of foreign-born residents.” Silicon Valley Cmty. Found., San Mateo County Immigrant Focus 2 (2013) [hereinafter San Mateo County Report], available at http://www.siliconvalleycf.org/sites/default/files/publications/svcf_san_mateo_county_immigrant_focus.pdf. According to one report analyzing 2010 census data, “between 2000 and 2010 San Mateo County’s immigrant population increased more than any other county in California, from 25.5 to 33.3 percent.” Id.

[10].See Sara Satinsky et al., Family Unity, Family Health: How Family-Focused Immigration Reform Will Mean Better Health for Children and Families 36 (2013), available at http://www.familyunityfamilyhealth.org/uploads/images/FamilyUnityFamilyHealth.pdf. Social science research consistently finds that parental psychological and economic stress—such as that caused by deportation—affects child outcomes. See Rand D. Conger et al., Economic Stress, Coercive Family Process, and Developmental Problems of Adolescents, 65 Child Dev. 541, 541-42 (1994). See generally Carolyn Webster-Stratton, Stress: A Potential Disruptor of Parent Perceptions and Family Interactions, 19 J. of Clinical Child Psych. 302 (1990).

[11].See Satinsky, supra note 10, at 11-12.

[12].See Kirk Semple, Council Expected to Approve 2 Plans Aiding Immigrants, N.Y. Times, June 25, 2014, at A21; Kirk Semple, New Help for Poor Immigrants Who Are in Custody and Facing Deportation, N.Y. Times, Nov. 7 2013, at A26.

[13].See Steering Comm. of the N.Y. Immigrant Representation Study Report, Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings (2011) [hereinafter New York Study, Part 1], available at https://www.ils.ny.gov/files/Accessing%20Justice.pdf; Steering Comm. of the N.Y. Immigrant Representation Study Report, Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings (2013) [hereinafter New York Study, Part 2], available at http://www.cardozolawreview.com/content/denovo/NYIRS_ArticleII.pdf.

[14].See John Coté, S.F. Moves to Provide $2M for Lawyers for Immigrant Kids, S.F. Chron. (Sept. 10, 2014, 4:01 PM), http://blog.sfgate.com/cityinsider/2014/09/10/s-f-moves-to-provide-2-million-for-lawyers-for-immigrant-kids/; Michael B. Marois, California Sets $3M Legal Aid for Immigrant Minors, Bloomberg Bus. (Sept. 27, 2014, 3:26 PM), http://www.bloomberg.com/news/articles/2014-09-27/california-sets-3-million-legal-aid-for-immigrant-minors.

[15].These percentages differ slightly from those in the report on which this article is based. That difference reflects our decision here to exclude cases that ended with a change of venue away from San Francisco.

[16].As described more fully in note 85, below, the nonprofit survey does not completely overlap with the EOIR data set. Both analyses, however, were conducted with regards to immigration cases in the San Francisco Immigration Court over a yearlong period.

[17].This estimate is based on data obtained from EOIR through a Freedom of Information Act request. The data includes all removal cases in which an Immigration Judge made a decision at the San Francisco Immigration Court during the time period between March 1, 2013 and February 28, 2014.

[18].Based on the dataset provided in response to our FOIA request, during the study period, 4152 individuals were detained for some or all of their removal proceedings in San Francisco Immigration Court. Of that number, 1943 individuals were detained for the entirety of their proceedings, and 2209 individuals were initially detained but later released. San Francisco Immigration Court conducts removal proceedings in two locations: 630 Sansome Street and 100 Montgomery Street.

[19].See 8 U.S.C. § 1226 (2013) (conferring authority to detain noncitizens while immigration proceedings are pending).

[20].See, e.g., Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) (resolving a class action lawsuit covering all individuals detained for more than six months); Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008) (seven years of detention).

[21].DHS enters into contracts with counties—termed Inter-Governmental Service Agreements (IGSAs)—to house detainees. See U.S. Immigration and Customs Enforcement, ACL-4-H-0001, Intergovernmental Service Agreement for Housing Federal Detainees (2004) (Yuba County), available at http://www.ice.gov/doclib/foia/isa/r_acl4h0001countyofyubaca.pdf; see also U.S. Dep’t of Justice U.S. Marshals Serv., 97-00-078, Det. Serv. Intergovernmental Agreement (2008) (Sacramento County), available at http://www.ice.gov/doclib/foia/isa/r_97000078sacramentocountycaasofmodification2.pdf.

[22].FOIA Response 14-03470, supra note 2.

[23].Jailed Without Justice, supra note 7, at 29.

[24].On November 3, 2014 (following our original report), EOIR’s San Francisco Immigration Court implemented a Video Teleconference (VTC) pilot program. All hearings for detained immigrants are now held at the Rio Cosumnes Correctional Center in Elk Grove, CA and Yuba County Jail in Marysville, CA. Detainees scheduled to appear before one of two particular immigration judges have their removal hearings via video teleconference. Instead of being transported to the San Francisco court, those detainees will now be transported to the ICE Enforcement and Removal Operations (ERO) Field Office in Sacramento, CA for the video hearing. Detainees held at the West County Detention Facility in Richmond, CA are still physically transported to San Francisco for their immigration hearings. See AILA Northern California Chapter Information on VTC Hearings for Detained Respondents (2014), available at http://aila.wpengine.netdna-cdn.com/wp-content/uploads/2014/12/VTC-Information_12-4-2014_DOJ-and-DHS-Approved.pdf.

[25].See Jailed Without Justice, supra note 7, at 29-43; see also U.S. Dep’t of Homeland Sec., Office of Inspector Gen., OIG-07-01, Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities (2006), available at http://www.oig.dhs.gov/assets/Mgmt/OIG_07-01_Dec06.pdf.

[26].E-mail from Ilyce Shugall, Dir. Att’y, Immigration Program, Cmty. Legal Servs. in East Palo Alto, to Lisa Weissman-Ward, Clinical Supervising Att’y & Lecturer in Law, Immigrants' Rights Clinic, Stanford Law School, (Feb. 19, 2015) (on file with author).

[27].Lyon v. U.S Immigration & Customs Enforcement, 300 F.R.D. 628, 631 (N.D. Cal. 2014).

[28].Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339 n.4 (3d Cir. 2008).

[29].Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (citing Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987)).

[30].8 C.F.R. § 1239.1 (2015).

[31].See, e.g., Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (employing categorical rule to determine whether prior conviction renders noncitizen removable); Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (same).

[32].See 8 C.F.R. § 1236.1(d) (2013) (bond redetermination hearings before immigration judges); see also In re Guerra, 24 I & N Dec. 37, 40 (B.I.A. 2006) (listing factors immigration judges should consider in deciding release on bond).

[33].See generally Katherine A. Brady et al., Defending Immigrants in the Ninth Circuit 11-7 to 11-210 (10th ed. 2008) (listing forms of relief, eligibility issues, and discretionary standard).

[34].See generally id.

[35].See, e.g., 8 U.S.C. §§ 1101(a)(15)(T), (U) (2013) (visas available to victims of crime and victims of human trafficking); Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Servs. (Mar. 10, 2015), http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca (describing procedures and requirements for obtaining prosecutorial discretion for childhood arrivals). Recently, the Department of Homeland Security Secretary, Jeh Johnson, issued a memorandum authorizing and describing a new means of obtaining deferred action (to be adjudicated by USCIS) for certain individuals who are the parents of U.S. citizens or Permanent Residents. See Memorandum from Jeh Johnson, Sec’y of Homeland Sec., to León Rodríquez, Dir., U.S. Citizen & Immigration Serv 3, 5 (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.

[36].See 8 U.S.C. § 1252 (2013) (governing judicial review of removal orders); 8 C.F.R. § 1003.38 (2014) (governing appeals to the Board of Immigration Appeals).

[37].See U.S. Courts for the Ninth Circuit, 2012 Annual Report 61 (2012) (finding the median time between filing of appeal to final order in 2012 was 15.3 months); Immigration Court Backlog Tool, supra note 5 (mean time for case resolution for cases currently pending in immigration court as of July 2014 was 604 days).

[38].See 8 U.S.C. § 1229a(b)(4)(A) (2013) (providing that an alien has right to representation “at no expense to the Government”).

[39].Immigration Court Backlog Tool, supra note 5; see also Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Removal Adjudication (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-Final-June-72012.pdf.

[40].See Hon. Dana Leigh Marks letter, supra note 8.

[41].Benson & Wheeler, supra note 39, at 56.

[42].According to recent estimates, 82% of children born to undocumented immigrants in this country are U.S. citizens. Jeffrey S. Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, at 13 fig.5 (2011), available at www.pewhispanic.org/files/Articles/133.pdf. Between July 2010 and September 2012, 205,000 deportees nationwide reported having at least one U.S.-citizen child. Seth Freed Wessler, Nearly 205K Deportations of Parents of U.S. Citizens in Just Over Two Years, Colorlines News for Action (Dec. 17, 2012, 9:45 AM), http://www.colorlines.com/articles/nearly-205k-deportations-parents-us-citizens-just-over-two-years. For a demographic analysis of undocumented immigrants in California, see Laura E. Hill & Hans P. Johnson, Unauthorized Immigrants in California (2011), available at http://www.ppic.org/content/pubs/Article/R_711LHR.pdf.

[43].See Santa Clara County Article, supra note 9, at 17.

[44].S.F. Immigrant Legal & Educ. Network, The San Francisco Immigrant Integration Project, Findings from Community-Based Research Conducted by the San Francisco Immigrant Legal & Education Network (SFILEN) 2 (2014), available at https://www.usfca.edu/uploadedFiles/Destinations/Institutes_and_Centers/McCarthy/SFILEN%20SFIIP%20Final%20Article%202014.pdf.

[45].U.N. Alliance of Civilizations, Immigrant Relations and Integration Services, Santa Clara County and San Jose, California (2011), available at http://www.unaoc.org/ibis/2011/04/11/immigrant-relations-and-integration-services-santa-clara-county-and-san-jose-california/.

[46].Cty. of Santa Clara, Immigrant Relations and Integration Services Mission Statement (2012), available at http://www.sccgov.org/sites/ohr/Immigrant%20Relations%20and%20Integration%20Services/Pages/Immigrant-Relations-and-Integration-Services-(IRIS).aspx.

[47].San Mateo County Report, supra note 9, at 2.

[48].Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families and Communities: A View from the Ground 9-14 (2012), available at http://www.americanprogress.org/wp-content/uploads/2012/08/DrebyImmigrationFamiliesFINAL.pdf.

[49].Ajay Chaudry et al., Facing Our Future: Children in the Aftermath of Immigration Enforcement 27-33 (2010) [hereinafter “Facing Our Future”], available at http://www.urban.org/UploadedPDF/412020_FacingOurFuture_final.pdf.

[50].Id. at 32.

[51].Immigration Policy Ctr., Falling Through the Cracks: The Impact of Immigration Enforcement on Children Caught Up in the Child Welfare System 5 (2012), available at http://www.immigrationpolicy.org/sites/default/files/docs/falling_through_the_cracks_3.pdf.

[52].See generally Satinsky et al., supra note 10 (collecting sources relating to psycho-social effect of deportation on families).

[53].Chaudry et al., supra note 49, at 46-48; see also Satinsky et al., supra note 10, at 12.

[54].Chaudry et al., supra note 49, at 42.

[55].Satinsky et al., Family Unity, supra note 10, at 11. But see Chaudry et al., supra note 49, at 48-49. Social science and psychological research has found that children with incarcerated parent suffer increased risk of delinquency, anxiety, depression, substance abuse problems, and unemployment. See Drika Weller Makariev & Phillip R. Shaver, Attachment, Parental Incarceration and Possibilities for Intervention: An Overview, 12 Attachment & Hum. Dev. 311, 312 (2010); Joseph Murray & Lynne Murray, Parental Incarceration, Attachment and Child Psychopathology, 12 Attachment & Hum. Dev. 289, 291 (2010). It is likely that such challenges also affect the children who suffer separation and isolation after a parent’s deportation. One study explains that the physical separation of a parent and child disrupts the child’s safe base of existence and learning, risking depression, anxiety, and social/cognitive difficulties. See Makariev & Shaver, supra, at 312-14.

[56].Jailed Without Justice, supra note 7, at 6.

[57].See Physicians for Hum. Rights & the Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers 1, 5 (2003), available at http://www.survivorsoftorture.org/files/pdf/perstoprison2003.pdf; Sw. Inst. for Research on Women, Unseen Prisoners: A Report on Women in Immigration Detention Facilities in Arizona 22-24 (2009), available at http://sirow.arizona.edu/sites/sirow.arizona.edu/files/UnseenPrisoners.pdf.

[58].See 8 U.S.C. § 1229a(b)(4)(A) (2013).

[59].Our study is of actual EOIR data, and does not reflect a randomized experiment relating to representation. Our conclusions are based on case outcomes in cases where individuals were represented by counsel, as compared to outcomes in cases without counsel. Reinstatement of removal cases, in which DHS alleges that an immigrant is subject to a prior order of removal, are only in the data set if the immigrant contends that he or she has a reasonable fear of persecution if returned to his or her home country. See 8 U.S.C. § 1231(a)(5) (2013) (governing reinstatement generally); 8 C.F.R. § 1208.31 (2014) (governing reasonable fear determinations). When the immigrant is able to convince a DHS official that her fear is reasonable, or where the immigrant challenges the official’s decision that it is not, an immigration judge has jurisdiction over the immigrant’s case. 8 C.F.R. §§ 1208.31(e)-(f) (2014). Such cases appear in EOIR’s database as “Reasonable Fear” or “Withholding Only” cases. Of the 8138 cases in our year of data, 61 are “Reasonable Fear” cases and 91 are “Withholding Only” cases. It is important to note that the immigrant is not entitled to representation—unless he can pay for one or find someone to provide representation for free—during the reasonable fear interview with the DHS official, and that many unrepresented individuals may not appeal that official’s adverse decision as regards whether the individual satisfies the reasonable fear standard.

[60].On the other hand, the analysis likely overstates the number of individuals who were represented because the EOIR data set indicates that an immigrant was represented if she was represented at any stage in her removal proceedings. This means that someone who was represented for only one hearing over a two-year period would still be counted as represented for the purposes of our analysis. That may lead us to underestimate the effect of counsel.

[61].Our analysis does not examine representation or outcomes when the immigrant or DHS appealed an immigration judge’s decision to the Board of Immigration Appeals (BIA), or when the immigrant subsequently petitioned for review of the BIA decision to the Ninth Circuit Court of Appeals. Such appeals are comparatively rare: there were only 918 appeals of the 8138 case completions in our year of data. Petitions for review are rarer still since they are only possible after appeal to, and disposition of case by, the BIA.

 

[62].This twenty percentage point difference in outcomes for detained cases is larger than that of the New York Immigrant Representation Study of removal cases in the New York immigration courts, which found a fifteen percentage point increase (from three to eighteen) in successful outcomes. See New York Study, Part 1, supra note 13, at 19 fig.7.

 

[63].We have provided a more detailed breakdown of these disparities by relief type in Appendix B.

[64].See 8 C.F.R. § 1236.1(d) (2014).

[65].See In re Guerra, 24 I & N Dec. 37, 40 (B.I.A. 2006) (outlining factors relevant to release on bond).

[66].See New York Study, Part 1, supra note 13, at 14.

 

[67].All of the organizations surveyed were asked about the number of cases accepted between April 1, 2013 and April 1, 2014. The organizations were also asked about whether any of those cases were subsequently referred to pro bono private counsel. Of the ten organizations surveyed, four organizations cocounseled at least one case with a private firm, and two organizations placed at least one case with a private firm. With the exception of one of the nonprofits whose work is focused primarily on providing referral and mentoring services on persecution based claims, the overwhelming majority of cases accepted by the surveyed nonprofits were worked on exclusively by each respective nonprofits’ own staff members.

[68].Please refer to Appendix C for a summary of our survey methodology.

[69].See 8 U.S.C. §1231(b) (2013); 8 U.S.C. § 1158(a) (2013).

[70].See 8 U.S.C § 1182(h) (2013); 8 U.S.C. § 1227(a)(1)(H) (2013); 8 U.S.C § 1229b(a) (2013).

[71].See 8 U.S.C. § 1229b(b) (2013).

[72].A U-Visa is a nonimmigrant visa available to certain victims of crimes who have cooperated with law enforcement. 8 U.S.C. § 1101(a)(15)(U) (2013). A T-Visa is a nonimmigrant visa available to certain victims of human trafficking. 8 U.S.C. §1101(a)(15)(T) (2013). VAWA refers to the Violence Against Women Act and provides, among other things, immigrant visas to certain spouses, children, or parents who have been the victims of domestic violence. See 8 U.S.C. § 1154(a)(1)(A) (2013). SIJS refers to Special Immigrant Juvenile Justice Status and provides immigrant visas to certain unaccompanied minors who were abandoned, abused, or neglected by one or both parents. See 8 U.S.C. § 1101(a)(27)(J) (2013).

[73].See 8 U.S.C. § 1254a (2013).

[74].See, e.g., U.S Citizenship & Immigration Serv., Consideration of Deferred Action for Childhood Arrivals (DACA), supra note 35.

[75].Each of the surveyed nonprofits has a different way of selecting cases for representation—that is, of choosing which cases to take from all of the immigrants seeking their representation. These selection criteria likely have an effect on each nonprofits’ success rates: a nonprofit that selects cases based on likelihood of success will be more likely to secure better outcomes for its clients. Our analysis of the survey data does not take into account the potential impact of the surveyed nonprofits’ case selection processes.

[76].This average reflects the data collected from seven of the ten organizations. Three of the surveyed organizations did not collect information on this data point.

[77].This average reflects the data collected from seven of the ten organizations. Three of the surveyed organizations did not collect information on this data point.

[78].This average reflects the data collected from nine of the ten organizations. It is important to note that at least two of the nonprofits surveyed and who provided data have a significant number of detained clients who are mentally ill and/or incompetent. Those individuals were not typically employed prior to their detention. However, even with those statistics included in the average, the number of detained immigrants employed prior to their detention is still over 60%.

[79].The average reflects the data collected from nine of the ten organizations. One of the surveyed organizations did not collect information on this data point.

[80].This average reflects the data collected from seven of the ten organizations. Three of the surveyed organizations did not collect information on this data point.

[81].The authors of this Article recognize that case selection process may have an impact on the levels of success by the surveyed nonprofits.

[82].This number only reflects the number of individuals who were physically released from custody as a result of posting of a bond issued by an Immigration Judge. It does not reflect the number of individuals who were offered a bond, but could not afford it. Such a number would reflect an even higher figure. Nine of the ten organizations surveyed were able to provide data on bond hearing results.

[83].In order to obtain an average, the number of cases each surveyed nonprofit and the average bond amount reported by each surveyed nonprofit was weighted in order to reflect the variation in actual number of cases where bond was obtained.

[84].For purposes of this survey, the term “completed” refers to a case in which the Immigration Judge issued a decision, either ordering removal, or ordering relief from removal. It also refers to a case where the Immigration Judge closed or terminated a case because the United States Citizenship and Immigration Service (USCIS) granted an application for relief from removal or where the Office of Chief Counsel agreed to administrative closure of a case in the exercise of discretion.

[85].The survey conducted with the ten Northern California nonprofits engaged in detained removal defense work did not pertain to exactly the same cases covered by the EOIR data set in Figures 1-7, although there is likely some overlap. The survey focused on the cases accepted by the nonprofits during the survey period (April 1, 2013 to April 1, 2014). The EOIR dataset covers all removal cases in which an Immigration Judge made a final decision at the San Francisco Immigration Court during the time period between March 1, 2013 and February 28, 2014. Although the two studies do not cover the exact same cases in San Francisco Immigration Court, both data sets cover approximately one year of (largely overlapping) time. We believe that comparison of the average rates of success is therefore useful.

 

[86].Four of the organizations reported that they do not track this data, most often because of a lack of capacity to do so.

[87].Kirk Semple, New Help for Poor Immigrants Who Are in Custody and Facing Deportation, N.Y. Times, Nov. 7, 2013, at A26.

 

[88].Note that one case can have more than one relief application, so these percentages cannot simply be added together to find the proportion of immigrants with some form of relief available.

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