http://www.nj.com/opinion/index.ssf/2018/03/why_nj_immigrants_arent_getting_fair_day_in_court.html
By Susan Roy
Deportation is one of the most extreme penalties our legal system has the power to impose on a person. Not only does deportation separate individuals from their children, their families and their communities, in some cases it means our government sends people back to countries where their lives are at risk because of extreme violence or instability.
Yet individuals going through removal proceedings in immigration court do not have the right to appointed counsel. This is because immigration law is civil, not criminal law, and the constitutional protections that apply to criminal court proceedings do not apply in immigration court. Since many immigrants fighting deportation cannot afford a lawyer, most people — 67 percent of New Jersey immigrant detainees — are forced to navigate our incredibly complex immigration laws alone.
It flies in the face of due process that detained immigrants, who have been deprived of their very liberty, do not have a right to counsel. The recent U.S. Supreme Court decision in Jennings v. Rodriguezthreatens the right of detained immigrants to seek bond, no matter how long their proceedings last, and makes the need for counsel, even more urgent.
As a former immigration judge at the Newark Immigration Court, and before that as a government attorney prosecuting deportation cases, I saw many immigrants who were eligible for legal status be deported because they did not have an attorney and therefore had no way of knowing that they had a path to stay in the U.S.
The right to counsel is critical to ensuring that immigrants have their fair day in court. The government is always represented by experienced attorneys, whereas only 1 in 3 detained immigrants in New Jersey have a lawyer by their side. I have also seen first-hand that the lack of access to counsel also contributes to inefficiencies in the court system, which then increases the ever-growing backlog of cases, as judges and government attorneys try to compensate for a respondent’s lack of representation.
Momentum is growing across the country to address this due process crisis, and — with Congress in a perpetual stalemate on immigration reform — it is up to state and local policy makers to lead the way.
Last year, New York became the first state to establish a state-wide universal representation program for detained immigrants in removal proceedings. Through public funds, New York now provides free, high-quality counsel to everyone in immigration detention that can’t afford a lawyer. Similar initiatives are underway in more than two dozen jurisdictions across the country.
A recent study evaluating the New York program found that immigrant detainees who were represented by attorneys won their cases almost 50 percent of the time, a 1,100 percent increase from the 4 percent success rate for unrepresented detainees before the program started. These statistics demonstrate both what a poor job our current system is doing of securing basic due process for people in immigration court, and what an incredible difference we can make — for New Jersey’s immigrants and for the fairness of our legal system — with a relatively small investment.
Last week, Gov. Phil Murphy allocated $2.1 million in his proposed budget to expand access to legal services for immigrants who are detained or facing deportation. This is a welcome first step for due process in New Jersey.
Based on my experience as an immigration judge and attorney for the Departments of Justice and Homeland Security, where I specialized in handling detained criminal and national security cases, I firmly believe that providing access to counsel protects everyone — not just detainees, but also our immigration system, our citizens, and the Constitution.
Last year, 2,536 people were deported from New Jersey. Many didn’t have a lawyer to help them fight their case. And we have no way of knowing how many actually had the right to remain here. As immigration arrests skyrocket throughout New Jersey, guaranteeing immigrants the right to counsel has become even more urgent. No matter what your political views about immigration, this is a radical failure of the rule of law in our country and our state has the responsibility to address it.
The Honorable Susan G. Roy was an immigration judge at the Newark Immigration Court and previously an attorney for the Immigration and Customs Enforcement (ICE). She currently works as an immigration attorney in private practice in New Jersey.
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Sue has been a “stalwart” of the group of retired U.S. Immigration Judges seeking to restore Due Process and fairness as the sole focus of the U.S. Immigration Court system, as it originally was intended. The need for counsel in Immigration Court is one of a number of issues upon which our “informal group” has submitted Amicus briefs to various tribunals. Thanks for all you do, Sue!
PWS
03-21-18