Thousands Face U.S. Immigration Court Alone

Alexa Lopez prepares to dance with her cousin outside the West County Detention Center, Richmond, Calif, at a vigil organized by the Interfaith Movement for Human Integrity. Her father, Raul, has been in Immigration and Customs Enforcement detention for 17 months. Photo credit: Simon Campbell.

Defendants in immigration court without an attorney are five times more likely to be deported. But legal representation is often not available. In the ‘zero tolerance’ era a good lawyer makes all the difference.

Raul Lopez picked the music for his daughter, Alexa’s, quinceañera. He did not pick the location. But the entrance of the West County Detention Center in Richmond, Calif., was as close as the girl could get to her father as she prepared to celebrate the symbolic dance that would mark her transition into adulthood and her 15th birthday.

When the music started, Alexa took her cousin’s hand and walked slowly toward the prison that had held her father for the previous 16 months. As they made their way past police cars, TV camera crews, friends and well-wishers, they carried a framed picture of Raul. After dancing to the song he had chosen, “No Crezcas Mas (Don’t Keep Growing),” Alexa hugged her mother and cried. Her dad was only meters away but his absence was impossible to ignore. He should have been dancing with her.

Raul Lopez was born in Guatemala and came to the United States 30 years ago without authorization. He worked in construction, started a family and built a life in California. Two years ago, he stood trial for a DUI charge. His family hired an attorney who they say showed little interest in the case and made no effort to downgrade the charge. Without effective defense, Lopez was convicted of a felony rather than a misdemeanor and placed into the hands of U.S. Immigration and Customs Enforcement. ICE is holding him as he awaits a hearing in immigration court that will decide if he may stay in the United States.

Alexa Lopez carries a banner campaigning for her father’s release at a vigil at the West County Detention Center, Richmond, Calif. She dearly wished for her father to be home by her birthday so they dance at her quinceanera. Photo credit: Simon Campbell.

Lopez is one of an estimated 40,000 allegedly undocumented immigrants in detention awaiting possible deportation. Thousands more are checking in with immigration authorities ahead of a date in court. If recent history is a guide, an unprecedented number may well be forced out of the country.

Deportations from the United States have increased dramatically since the 1990s. But in recent years, as the rhetoric around immigration turned poisonous, the stakes have risen.  Legislative changes and a shift in attitude toward immigration enforcement since President Donald Trump’s election have choked an already pressured system. There is a growing backlog of immigrants in removal proceedings. And many immigrants are being deported without legal representation.

Those on trial in immigration court stand apart from defendants in other areas of the U.S. justice system. The Sixth Amendment to the Constitution guarantees the right to legal counsel for criminal defendants but it does not apply here. Immigration courts are not bound by due process; the government is not required to provide legal representation for those who cannot afford it.

The statistics are stark. Immigration officials have ordered the deportation of nearly 2 million people since October 2000; 82 percent were not represented, according to data from Syracuse University. An immigrant in court without an attorney is 4.5 times more likely to be deported than someone with legal representation. Most defendants are not represented in immigration court.

Representation in all immigration court cases from 10/2000 to 5/2018:

When result = removal order:

(Source: Transactional Records Access Clearinghouse at Syracuse University (TRAC). Data from deportation case initiated in Immigration Court by DHS/INS).

From 2007 to 2012, just 37 percent of immigrants facing deportation and just 14 percent of incarcerated immigrants entered court with legal representation, according to research by the University of California, Los Angeles. Only 2 percent of immigrants obtained pro bono legal representation during the period.

The consequences for poorly represented immigrants like Lopez are severe. Unrestrained by normal rules of due process, ICE transferred him with no warning or explanation to a prison in Colorado. His family cannot afford to visit him and there is no way of knowing how long he will wait for a hearing that will decide if he is to be deported.  

One Strike and You’re Out

In October 2014, the Alameda County Public Defender appointed a new attorney to fight deportation cases. Raha Jorjani became the first public defender in California focused on this area of law. With the pressure to deport undocumented immigrants mounting, the timing of her appointment has proved fortuitous.

Jorjani has spent her career at the sharp end of immigration law. Working first as an attorney fighting deportations for a nonprofit in Arizona, she continued into education and advocacy before taking her current position. “I think of myself as a human rights lawyer,” she says. “I feel strongly about advocating on behalf of people who I think are the most vulnerable people in our societies.”

There are two broad strands to Jorjani’s work – defense and education. When she is not in court, she trains other attorneys and emphasizes that a brush with the law can leave an indelible mark on an immigrant, regardless of his or her status.

The United States has traditionally barred migrants with criminal convictions from entering the country but it is now deporting large numbers of people who have had the merest of contact with the criminal justice system.

This exposure can be devastating. A traffic violation or DUI for example, can have grave consequences for an immigrant, Jorjani says. ICE agents are now authorized to target immigrants who have had a run-in with the law. One conviction or mention in a police report can be enough to invalidate a legal right to remain in the United States.

The system places remarkable stress on those facing deportation and their lawyers—if they even have lawyers.

“Zealous defense and informed competent representation by public defenders at every stage of a criminal proceeding can absolutely change the outcome for an immigrant in terms of immigration consequences of criminal convictions,” Jorjani says.

Norton Tooby, an immigration attorney since 1971, views the lack of representation in immigration court as “a national disgrace.” He was cited in the landmark Padilla vs. Kentucky case of 2010 which found that a criminal attorney should offer accurate advice on the immigration consequences of any plea a defendant might offer in court. A seemingly attractive plea bargain in a criminal case can easily lead to removal proceedings for an immigrant further down the road.

“If an immigrant defendant pleads guilty to the wrong thing, they may be deported regardless of anything else,” Tooby says. “They may be Mother Teresa in terms of their character and if it’s the wrong conviction, none of it matters. Deportation is mandatory, yet permanent.”

During his election campaign, Donald Trump promised to shake up America’s stance on immigration. He’s kept his word.

As enforcement at the border has intensified, the backlog of cases at some immigration courts has rocketed. The average wait time for a defendant to face a hearing in immigration court in San Francisco is close to two years; nearer the border it balloons to five, according to data compiled by researchers at Syracuse University.

The growing backlog of immigration cases in the U.S.

(Source: Transactional Records Access Clearinghouse at Syracuse University (TRAC). Data from deportation case initiated in Immigration Court by DHS/INS).

In January 2017, President Trump signed a pair of executive orders that radically expanded the scope of who can be targeted for deportation by the Department of Homeland Security. Under the Obama administration, immigrants without legal status who had been convicted of specific “serious crimes” were prioritized, but the new rules allow federal agents to pursue a much larger slice of the immigrant population. A person deemed “a risk to public safety or national security” in the judgment of an immigration officer can be prioritized for removal. Any criminal offense can now make someone eligible for deportation.

A May 2017 DHS memo, leaked in July of that year, suggested the Trump administration would put pressure on immigration courts to increase the speed with which they handle these cases. Judge Dana Leigh Marks of the San Francisco immigration court, a former president of the National Association of Immigration Judges, attacked the proposed changes for “trying to turn immigration judges into assembly-line workers.”

Deportation hearings are notoriously short, rarely lasting more than three hours. The system places remarkable stress on those facing deportation and their lawyers – if they even have lawyers.

“You’re literally judging a person’s entire life,” says Jorjani. “You need them to testify about maybe 30 to 40 years of what they’ve done on this earth. Everyone is expected to do this in a matter of hours. Judge Marks is famous for saying, ‘Immigration judges are doing death penalty cases in a traffic court setting.’”

In response, the Alameda County Public Defender recently increased its cadre of immigration attorneys to eight but does not have the resources to fight every deportation case that comes its way. Jorjani and her team target whom they assist by focusing on certain groups or individuals. “We will look at cases where we think our impact can be the greatest or cases where the clients themselves are the most vulnerable,” Jorjani says.

For Jorjani, there is no better feeling than winning a deportation case. “When you are able to stop deportation, when you’re able to impact someone’s ability to go back and be reunited with their family, to not have the fear of banishment and exile hanging over their heads—there’s nothing better than that,” she says.

Jamarillo winces when he contemplates what might have happened if he hadn’t met Jorjani.

Jorjani has experienced life on both sides of a deportation case. She was born in Iran in 1978. Her family came to the United States when she was 6 and settled in the Bay Area. They were placed in removal proceedings when their initial application to remain in the country was denied. An immigration judge reversed the original ruling and allowed the family to remain.

Jorjani carries only vague memories of this event and maintains that her childhood experience is not a driving force behind her subsequent career. “I come to this work from maybe a slightly different place than some other immigration attorneys,” she admitted. But she described tackling America’s “addiction to incarceration” as her strongest motivation.

Wendy (cq) Jamarillo needs no reminding of the importance of effective legal representation. Born in a small town in Mexico in 1985, he entered the United States illegally when he was 18. He built a life in California as a skilled decorator and plasterer.

In 2014, he was picked up by ICE and detained after police were called to a drunken argument at a party. His wife hired an attorney she found online who, after receiving $2,500, refused to meet and simply responded that “everything would be fine.” Jamarillo was released on bond and, with a court date looming, was directed to the Alameda County Public Defender’s office, where he found Jorjani.

“I can honestly say she is like an angel to me,” he says.

Jorjani was candid with her client: Deportation was possible. For someone who had been struggling to digest the complexity of the U.S. legal system, this honesty was painful but refreshing, a shot of reality to clarify the severity of the situation.

Jamarillo’s three children were born in California. If he was deported, they would stay with their mother in the United States. As the court date edged closer, he could feel the life he had built for his family slipping through his fingers. The threat of removal cast a shadow.

“Every morning you get up, you know it’s there,” says Jamarillo. “It’s the worst, worst, the worst thing ever. You are not going to see your kids. Everything that you’ve been dreaming, everything that you’ve been working hard for, it is going to be down the drain.”

Jamarillo winces when he contemplates what might have happened if he hadn’t met Jorjani. “I would be screwed,” he says. “I would be totally screwed. I really kind of woke up to where I was, where I am, what I have and to what I could have lost, which was my family.”

Raul Lopez celebrated his 46th birthday on July 10. He called his family from the detention center in Richmond. They played him “Las Mañanitas,” the traditional birthday song, over the phone and everyone cried. Raul calls Alexa “Mi Princesa,” his little princess. She turns 15 on Aug. 10.

Alexa thinks about the future often. She says she wants to be an attorney. “I want to represent people because there are some lawyers that don’t do a good job and I want to be a person who helps people.”

By Simon Campbell

Correction: A previous version of this story stated that Jorjani had argued Jamarillo’s case rather than advising him. His case will be adjudicated in 2020.