Stacking a Kangaroo Court
Jeff Sessions’s DOJ wants it to be even harder for immigrants to access justice
The Department of Justice is attempting to enforce for the first time a 9 year old professional conduct guideline for lawyers appearing in immigration courts, using it against a non-profit organization offering free legal services to immigrants.
UPDATE:
The DOJ has filed a notice of collection activities, seeking to update its list of pro bono providers of legal aid in immigration court. The notice was filed 6 days ago, to be followed by a 60 day period during which “comment is encouraged,” ending August 25.
Legal service providers seeking to be included on the List of Pro Bono Legal Service Providers (“List”), a list of persons who have indicated their availability to represent aliens on a pro bono basis….to replace the current paper version…with an electronic system to make an initial application and apply for continued participation in the List. Form EOIR-56 will be mandatory, and is intended to elicit, in a uniform manner, all of the required information for EOIR to determine whether an applicant meets the eligibility requirements for inclusion on the List.
Given the unprecedented guideline enforcement against a pro bono, the timing of this collection is deeply concerning.
END UPDATE
The guideline says that if a lawyer provides any legal aid to a defendant in immigration proceedings, they must file a notice of appearance and commit to representing that client for the duration of the case.
The rule was intended to prevent attorneys from defrauding clients by getting them to pay for full representation, perhaps providing an initial service or advice and then abandoning the case — but Jeff Session’s Justice Department has dusted it off for the first time to stop the Northwest Immigrant Rights Project, which advises and assists foreign nationals with paperwork totally gratis, from performing its core mission.
The Project has sued the DOJ and says the cease and desist order violates its First Amendment Rights, it announced in a press release in May (which was last updated on its site June 8).
On April 12th we received a letter from the Executive Office for Immigration Review (EOIR), directed to Legal Director Matt Adams. The letter ordered us to “cease and desist” providing legal assistance to people facing deportation unless we submitted a formal notice of appearance in each case.
But submitting a notice of appearance is practically impossible for us to do. That’s because in immigration court, filing a notice of appearance means you have to take on that person’s entire case as their attorney throughout their deportation proceedings.
We don’t have the capacity to do that.
Therefore, in order to abide by the letter as presented by the EOIR, we have two options: take on thousands of cases we don’t have the capacity for, or stop providing ANY assistance to people which crosses the line into legal advice. Both options mean people facing the terrifying threat of deportation no longer are getting any help. We won’t stand for that.
The NWIRP won a brief reprieve with the issuance of a temporary restraining order, allowing it to continue its work. The Project mainly serves asylum-seekers and victims of violence.
But
Why would the DOJ be pulling out a decade-old rule to stop scammers to use against an organization that does not stand to gain monetarily from representing immigrants, in any event?
“It’s an attack,” Jessica Vosburgh, Director of the Adelante Worker’s Center in Hoover, Alabama, told me in an interview on Tuesday.
“We’ve already seen this from the Trump administration, even the suggestion of charging non-profits with felonies for ‘harboring.’”
The Department of Homeland Security is responsible for most immigration enforcement in the United States, with the Customs and Border Protection’s US Border Patrol tasked with preventing unauthorized crossings (and policing a buffer zone to 100 domestic miles from the border), and Immigration and Customs Enforcement, ICE, tasked with internal apprehension, detention, and deportations.
CBP agents have staggering powers of summary judgement at the border, and because immigration proceedings are considered civil matters, persons apprehended by the Border Patrol are usually not entitled to a lawyer.
“But the fact is that the penalty in immigration court, deportation, is much more severe than in many criminal cases, where defendants are entitled to a lawyer,” said Vosburgh.
It’s a little stacked against immigrants already
In fact, immigration court is not a court, in that is it not part of the judicial branch, and its judges aren’t really judges, rather lawyers employed by the Executive Office of Immigration Review, which is under the Department of Justice.
“In terms of our technical employment status, we are attorney employees of the Department of Justice, which we believe does make us much more vulnerable to political influence than we would be in an independent court structure,” Dana Leigh Marks, president of the National Assn. of Immigration Judges, told the San Diego Union-Tribune in November.
Appointment to the federal bench is for life, barring impeachment for criminal acts or other gross turpitude, and this relative impunity is a mechanism for maintaining the independence of the judiciary. If after a few rulings don’t go his way the President regrets a judge’s nomination, it’s too late.
But in immigration court, during a two-year probationary period, Attorney General Jeff Sessions can fire immigration judges for any reason at all. After two-years they are protected by the same civil-service laws as other federal employees (that is, they can be fired for failing to meet predetermined conditions of their employment that are uniformly applied to everyone in the same position).
Sessions has already appointed dozens of new judges and a new acting director of the EOIR, and there are still close to a hundred vacancies.
With the latitude to directly influence adjudications and a determination to prevent immigrants from accessing representation, it’s clear that Sessions intends to push his and Bannon’s dream down the System’s throat.
The United States is not a “safe country of asylum” for those fleeing persecution and violence.
There are few populations more vulnerable than stateless persons — asylum-seekers and refugees and other undocumented people. This reality underpins all international convention on refugees and asylum — the globe is effectively anarchic, status and security are afforded by demonstrable statehood.
Trump has already endangered the ability of these desperate humans to meaningfully pursue their claims, wrote the Harvard Law School’s Immigration and Refugee Clinical Program in a February report, with executive orders that “makes an already deeply flawed system dramatically worse.”
The orders are fundamentally rooted in “erroneous assumptions about the criminality and extremist tendency of the immigrant population,” and “represent a dramatic restriction of access to asylum and other immigration protections in the United States,” wrote the authors.
Here the state has failed, and that’s where people like Vosburgh and many other professionals, as well as countless undocumented people working anonymously for communities they love, come in.
For her part, the Yale Law School Fellow who spent a year with punk rockers and graffiti artists in Rio de Janeiro remains mostly confident in our court system. “Fortunately the Constitution has protected us so far, but I don’t believe the Constitution is going to be enough — I think we’re going to have to get in the streets.”
Vosburgh and allies are doing just that Saturday morning at 10 A.M. in downtown Birmingham, at historic, infamous Kelly Ingram Park, in a March for Sanctuary.
It’s an opportunity for people in the city to stand and be counted, and to offer the best reassurance we can to our neighbors — immigrants — who are afraid, and facing a government that wants them to be.
I’ll be there covering the march, and as a friend. This is a time for deciding what you believe is right and being about it.
