Access to Justice in the New Era of Immigration Enforcement

Last month, in a case that made nationwide news, an undocumented transgender woman went to an El Paso courthouse to seek a protective order against her ex-boyfriend. A few hours later the woman, identified in court documents as Irvin González, left that same courthouse in the custody of Immigration and Customs Enforcement (ICE) agents.

González’s arrest was one of at least 680 that ICE made that week, largely in coordinated raids. The raids took place just weeks after President Trump issued two immigration-related executive orders, one directing the executive branch to move forward with building his longpromised border wall and aggressively pursue detentions and deportations, and the other ordering federal funds to be withheld from sanctuary cities. While the Department of Homeland Security (DHS) has claimed that these raids were “routine,” ICE’s recent practices are notable both for the number of people arrested in such a short time and for the fact that ICE has been making “collateral arrests” during raids, detaining undocumented immigrants who happen to be present regardless of whether ICE has an outstanding warrant. El Paso County Attorney Jo Anne Bernal called González’s case “unprecedented” and warned of the chilling effect even “one isolated incident like this” could have on undocumented victims of crime.[1] According to Bernal and to González herself, ICE agents may have acted on a tip from González’s alleged abuser.

González is not unique in this regard. Threatening to call immigration enforcement is a common tactic of abusers when the partner experiencing abuse is undocumented or otherwise vulnerable to deportation or immigration detention. [2] Such threats can deter domestic abuse survivors from reporting the abuse or attempting to seek assistance.[3] What’s more, using the threat of ICE to coerce vulnerable people is not limited to the context of intimate partner violence: employers can use ICE raids to intimidate undocumented, often low-wage employees.[4]

The chilling effect that Bernal warned of is already becoming apparent. Denver City Attorney Kristin Bronson revealed last week that four women, complainants in pending domestic abuse cases, decided not to pursue their cases because they feared deportation. In multiple cities, including Denver and Los Angeles, ICE has adopted the practice of waiting in or near courthouses and detaining undocumented individuals who have cases scheduled to be heard. As a result, civil litigants and crime victims — including victims of domestic abuse, tenants fighting evictions or attempting to force their landlords to remedy poor conditions, and employees seeking damages for wage theft, among others — are being forced to choose between leaving their rights un-vindicated or risking deportation.

What is more, many civil litigants, especially those who are both undocumented and poor, face this choice without the aid of counsel. In a 2009 report, the Legal Services Corporation (LSC), which was created by Congress in 1974 to fund civil legal aid, found that low-income people across multiple states received assistance from a legal aid or private pro bono attorney for less than one out of five of the legal problems they faced.[5], [6]

[1] It will likely become much harder for indigent litigants to access civil legal aid under the Trump administration: the administration’s proposed budget would eliminate LSC funding entirely, which could force LSC-funded legal services organizations to downsize, scramble for other sources of money, or shut down entirely.

While counsel is guaranteed to indigent individuals in criminal cases under Gideon v. Wainwright,[7] the Supreme Court declined to find a corresponding due process right in civil cases.[8] Several lower courts have also refused to accord a right to state-provided counsel to individuals facing deportation in removal proceedings, given that immigration is legally treated as a civil matter.[9] Similarly, although criminal defense attorneys are required to at least notify their clients when a conviction or guilty plea could have immigration-related consequences,[10] counsel in civil cases are not required to provide immigration-related advice when litigating an unrelated issue. Historically, it would have made little sense to require immigration consultations in the majority of civil cases, as those cases were unlikely to implicate immigration issues. In contrast, in the criminal justice arena, a growing number of offenses can qualify a non-citizen defendant for deportation and have given rise to an extensive “crimmigration” system. But civil statutes and regulations pertaining to domestic law, housing, and employment do not on their face contemplate deportation or removal proceedings as a consequence of the lawsuit.

Yet now civil litigants risk detention by ICE and deportation as a consequence of merely being physically present at a courthouse. And courts, legal aid providers, and state legislatures have an obligation to respond to this added access-to-justice threat from a federal government apparently bent on pursuing an increasingly draconian immigration .

[1] The White House’s stance on immigration enforcement has also met opposition from the local police and city attorney; the Los Angeles Police Department (LAPD) asserts that when ICE agents represent themselves as police, they contribute to a breakdown of trust between the LAPD, which follows a policy of not initiating contact with city residents to ascertain immigration status, and local communities. See http://harvardcrcl.org/who-are-the-cops-the-semantic-fight-between-local-and-federal-law-enforcement/.

[2] See, e.g., Anita Raj & Jay Silverman, The Roles of Culture, Context, and Legal Immigration Status on Intimate Partner Violence, 8 Violence Against Women 367, 385 (2002).

[3] Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 600–601 (2013).

[4] See ACLU, ICE Worksite Enforcement: Up to the Job?, Statement submitted to the House Judiciary Committee on Immigration Policy and Enforcement, 8 (Jan. 26, 2011), https://www.aclu.org/files/assets/ACLU_Statement_re_Worksite_Enforcement.pdf.

[5] Legal Services Corporation, Documenting the Justice Gap in America, 17 (2007).

[6] It will likely become much harder for indigent litigants to access civil legal aid under the Trump administration: the administration’s proposed budget would eliminate LSC funding entirely, which could force LSC-funded legal services organizations to downsize, scramble for other sources of money, or shut down entirely.

[7] 372 U.S. 335, 344 (1963).

[8] Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32 (1981).

[9] See, e.g., Romero v. U.S. INS, 399 F.3d 109, 112 (2d Cir. 2005); Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003).

[10] Padilla v. Kentucky, 559 U.S. 356, 369 (2010).

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Mitha Nandagopalan is a 2L from San Jose, CA. She is interested in criminal justice reform and access to justice, and is a member of the Harvard Legal Aid Bureau and Lambda. Prior to law school, she taught 5th grade in Brooklyn. She has a B.A. in International Relations from NYU and a Masters in Special Education from CUNY Hunter College.

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