Jennifer Chacón

When I read about the recent controversies over Jason Richwine, formerly of the Heritage Foundation, and learned that Christopher Jenks was one of three Harvard faculty members who signed off on Richwine’s controversial dissertation, I immediately thought about an article by Jenks published by the New York Review of Books in 2007 entitled “The Immigration Charade.” That article includes a review of Patrick Buchanan’s State of Emergency: The Third World Invasion and Conquest of America. I read the review a long time ago, and the book is not on my list of favorites, but the memory of the review came flooding back to me because the similarities between the arguments that Richwine made in his doctoral dissertation and those that Buchanan makes in his book are striking in this regard: both provide policy recommendations that flow directly out of their own deeply troubling assumptions about race in general, and “Hispanics” in particular. Christopher Jenks provides a sort of common thread that allows me to consider Buchanan and Richwine simultaneously, while also questioning the role of scholars in confronting the misuses of “race” and “culture” in policy debates.

Jenks’ 2007 review of Buchanan’s book unfolds through an introduction and four sections. In his introduction, Jenks asserts that “America’s ongoing argument about immigration has followed a fairly consistent sequence for three decades.” He breaks the sequence down as follows: a rash of reports concerning illegal settlement, which lead to charges that the U.S. is overrun by foreigners, which lead to Congressional hearings, which lead to employers and legal immigrants pushing back on large-scale restrictions, which lead to legislation that includes a combination of legalization of unauthorized migrants, workplace enforcement and reconfigured – and generally expanded – channels of lawful immigration, which leads to widespread legalization and expanded legal immigration channels, but no enforcement of the worksite provisions. This summary appears reasonably accurate, although it may be a stretch to call this a “consistent sequence for three decades,” since it describes a “sequence” that has happened precisely once over the course of the past 30-odd years. Jenks then briefly chronicles the sad travails of comprehensive immigration reform in the waning days of the second Bush administration.

With this setup, Jenks proceeds to the first section of his review, in which he discusses the soft nature of both public support for and opposition to legalization for unauthorized migrants. He observes, with apparent sympathy, that opponents of “amnesty” see little evidence that the federal government has any intention of enforcing immigration law. Jenks also notes that the federal government has favored a strategy of symbolic border enforcement over potentially more effective enforcement strategies largely for political reasons.

In the second section of the article, Jenks attacks the argument that immigrants are merely taking jobs that “Americans” won’t do, suggesting instead that employers just don’t want to pay wages that would attract “poorly educated natives” to these positions. Respected studies raise questions about whether these groups actually are pitted against one another in this way, but Jenks appears to side with those (including his colleague George Borjas) who generally believe that it does. Jenks then proceeds to the third section of his article: a review of Buchanan’s State of Emergency.

So far, Jenks’ review offers a relatively stock liberal story about immigration, politics and the U.S. labor market. I disagree with some of what Jenks says in these first sections, but it all seems reasonably defensible to me.

I begin to grow uneasy, though, when I turn to the third section of the article.

In the third section, Jenks provides a summary of Buchanan’s basic arguments: immigration is bad, Republicans should awaken to the fact that they are doomed if they support immigration reform, Mexicans are angling for a reconquista of the American southwest through mass immigration, and the mass influx of crime-prone immigrants who do not demonstrate a deep love of the United States and who refuse to assimilate is a disastrous proposition for the nation. Jenks, unsurprisingly, makes short work of Buchanan’s alarmist claims, pointing out, for example, Buchanan’s deceptive deployment of statistics concerning migrant criminality.

Oddly, however, Jenks never calls Buchanan out for the pseudo-scientific claims that the he makes about race in his book. This oversight is problematic considering the extent to which such claims effectively form the foundation for the book’s policy arguments. To take just one example, at page 135 of his book, Buchanan asserts that “[n]ot only do Mexicans come from a different culture, they are, 85 percent of them, mestizo or Amerindian. History teaches us that separate races take even longer to integrate.” I am not sure what “history” Buchanan is referring to, nor can I figure out what he means by “race.” The term is never defined and evidence to substantiate his claim about race and assimilation is never offered. These sorts of statement pepper the book and drive Buchanan’s argument to its logical conclusion: not only should we crack down on illegal immigration but we should also impose a widespread moratorium on legal immigration.

Jenks challenges Buchanan’s assertion that today’s immigrants fail to assimilate, but he oddly never mentions the pseudo-scientific claims about race that undergird the argument. While Jenks clearly does not take many of Buchanan’s arguments particularly seriously, he also fails to take the author to task for what I see as the most disturbing aspect of the book – its unsupported claims about the behaviors and propensities of certain (presumptive) racial groups. Buchanan treats race and culture as variously distinct and interchangeable, depending on his claim. His problematic deployment of both “race” and “culture” beg for interrogation, but it does not come in this review.

In part four of the review, Jenks effectively weaves Buchanan’s arguments into a legitimate conversation on immigration policy by returning to his argument that legalization in the absence of workplace enforcement “has had huge costs,” namely, “exacerbat[ing] popular distrust of the federal government” and “increase[ing] hostility to foreigners, especially Mexicans.” Jenks’ claims seem intuitively appealing. I am not sure they are true. In the late 1990s and very early 2000s, few were calling out the federal government for failing to raid workplaces even though workplace enforcement was at its lowest ebb. In contrast, at a time that the federal government was deporting 400,000 people a year, and spending $16 billion a year on enforcement measures, Arizona voters passed legislation designed to do the immigration enforcement job that the federal government was purportedly refusing to do. The relationship between distrust and federal enforcement is not a simple one.

Similarly, distrust of foreigners (and particularly Mexicans), while a disturbing feature of American life for over a century now, hardly seems to turn on the strength of federal immigration enforcement. Moreover, the highly visible, criminalizing workplace enforcement strategies of the Bush administration actually seemed to fuel xenophobia, which suggests to me that enforcement strategies can either increase or decrease distrust, depending on how they are deployed.

It seems more likely to me that the state of the economy does a better job of accounting for levels of distrust of the federal government and “foreigners” (actual or perceived) than does the efficacy of immigration enforcement. And as Jenks himself noted, distrust can be strategically mobilized. Jenks points to the Minutemen and NumbersUSA as examples of organizations that worked hard to do just this in order to defeat immigration reform in 2007. Buchanan is another sower of distrust.

In the current battle over immigration reform, the Heritage Foundation recently has assumed such a role, advancing the dubious claim that the Senate’s immigration reform package carries a $6.3 trillion dollar pricetag.

One of the authors of the study – Jason Richwine – resigned from Heritage after it became public knowledge that he wrote his doctoral dissertation at Harvard on “IQ and Immigration Policy.” In his dissertation, he argues that “Hispanics” have lower IQs than Asians and Europeans (page 60), and he ultimately concludes that immigration policy should favor immigrants with high IQs. Like Buchanan’s claims about race and assimilation, the racial terms are amorphously defined and, as in Buchanan’s book, the policy conclusions are insufficiently supported by the evidence.

Christopher Jenks signed off on Richwine’s doctoral dissertation. I don’t know if Jenks pushed back on the problematic ways that Richwine defined his “racial” categories and deployed his evidence concerning race. I hope that he did. But in his review of State of Emergency, Jenks never really called out Buchanan for some of the same sorts of manipulations. I think he should have. Because when scholars fail to confront racial pseudo-science and call it by its name, it becomes much easier for dedicated opponents of almost any social policy to generate opposition by sowing the seeds of racial distrust amongst U.S. citizens already overwhelmed by job losses, wage stagnation and general economic uncertainty.

Jennifer Chacón is a professor at the University of California Irvine School of Law.

Jennifer Chacón

On April 18, 2013, César did a masterful job of describing the “crimmigration provisions” of the behemoth comprehensive immigration reform bill that is currently wending its way through the Senate. He summarized the various sections of the bill, which begins with a sweeping set of provisions relating to “border policing and prosecution.” As César noted, the legalization provisions of the bill will not go into effect until certain “border security” benchmarks are met. The bill as initially drafted focused a significant portion of its security initiatives on the U.S.-Mexico border, requiring, among other things: 1) that DHS certify “effective control” – translated into a 90% apprehension rate for unauthorized crossers – in certain “high-risk” areas along the U.S.-Mexico border; 2) that $1.5 billion be allocated for a Southern Border Fencing Strategy; 3) a significant increase in funding for illegal entry and felony re-entry prosecutions along the Southern border, particularly in the Tucson sector; and 4) increased funds for “Operation Stonegarden,” which are used to pay state, local and tribal officials to participate in border security efforts. Of course, the bill’s drafters do have security concerns that extend beyond the Southern border, but the bulk of the resources and rhetoric are focused on that region. Subsequent amendments to the bill have hammered this home.

On May 17, 2013, the Washington Post published a summary of the various amendments that the Senate Judiciary Committee made to the immigration bill during its first three days of hearings. A few of the amendments relating to these “border security” provisions caught my eye. Here is a representative sample:

• -First, S.B. 744 initially would have required “effective control” of “high risk” areas of the Southern border. An amendment by Senator Grassley of Iowa, which passed by voice vote, strikes all references to “high risk” sections of the border, and requires that 90% of unauthorized entries along the entire U.S.-Mexico border (but no other border or port of entry) be stopped before the legalization provisions go into effect.
  
• -Second, as Dylan Matthews of the Washington Post notes, Senators Leahy and Cornyn proposed an amendment, which also passed by voice vote, and which would require DHS to “consult with the Secretaries of Interior and Agriculture, as well as state and local governments, in determining where on the Mexican border to place fencing.” Notably, the provision also “clarifies that no fencing will be placed on the Canadian border.”
  
• -Third, by voice vote, the Committee approved an amendment by Diane Feinstein that limited the use of border patrolling aerial drones to within to three miles of the border in California.

The quality of life of U.S.-Mexico border residents has been sacrificed on the altar of border security since the mid-1990s, notwithstanding the lack of empirical evidence that the ongoing militarization strategies are effective, cost-effective or desirable. The recent amendments to the border security bill point out the degree to which the needs of these border residents continue to be traded off to achieve larger political and immigration policy goals.

These amendments suggest that we need “effective” control of the border – but only if that border is with Mexico. These amendments also assure us, lest we be worried that northerners and Canadians might have to confront the unsightly fences that already mar the landscape in California, Arizona and Texas, that this eyesore is reserved for the residents of southern border states and Northern Mexicans. As someone who grew up along the U.S.-Mexico border, I was struck by the fact that the Senators clearly recognize the harm of fencing when they passed these amendments; hence, their desire to shield certain geographies from fences and quotas. Yet, at the same time, the harms seem to be systematically underweighted when the conversation turns to the U.S.-Mexico border. These discussions reminded me of Pratheepan Gulasekaram’s article Why a Wall?, 2 U.C. Irvine Law Review 147 (2012), in the second issue of the U.C. Irvine Law Review, in which he chronicles the ways in which the southern border fence is an act of political theater with insufficient mooring to the realities of migration or border life.

Like the Grassley, Leahy and Cornyn amendments discussed above, Senator Feinstein’s drone limits acknowledge implicitly the costs of border militarization. But the drone limits that the Senate has thus far enacted will not do much for the people who live close to the border in cities outside of California. And even limiting the drones to three miles of the border still leaves hundreds of thousands of residents along the southern border exposed to the noise of drones, the eyesore of border fencing and floodlights, and the disruption and unease generated by the constant presence of Border Patrol trucks and armed guards. This is a sort of a geographically determined criminalization that extends far beyond those prosecuted, detained and deported for immigration offenses. In reading S.B. 744 and these recent amendments, I was reminded of my 2007 visit to the museum at the infamous Checkpoint Charlie in Berlin, Germany, where I snapped a photo of a poster that proclaimed that “walls aren’t built for an eternity.” Here’s hoping.

Jennifer Chacón is a professor at the University of California Irvine School of Law.

Mark Noferi

Last week, I wrote about the due process and detention provisions of the S. 744 immigration bill, and specifically the possibility of a right to appointed counsel in immigration proceedings (or at least for detainees, as I wrote about in Slate Wednesday). (The Senate Judiciary Committee seems ready to consider those provisions today). Subsequently, Robert Koulish and I wrote about ICE’s use of risk assessment for detainees—since if ICE’s risk tool is faulty, detention reforms will be naught.

Today, I’ll write about another forward-looking issue. In the coming decade, the U.S. Supreme Court will not only likely consider the right to a lawyer in immigration proceedings, but as a fallback, the right to a non-lawyer representative. The argument is far from hypothetical. Non-lawyers are already widely representing immigrants in the U.S. And as non-lawyer immigration representatives are subjected to increasing professionalization, standards, and oversight, an established “non-lawyer immigration bar” is developing, as already exists in Canada, the U.K., and Australia.

A future Court’s right-to-counsel decision will raise (at least) three sets of questions: constitutional, pedagogical, and empirical. I’ll set out some background, and then briefly summarize these arguments below.

I’ll speak on this issue twice this summer: at the AALS Midyear Meeting in San Diego on a panel with U.C. Davis' Kevin Johnson (editor of the essential ImmProf Blog), and at the Law and Legal Education in the Americas Conference at University of Detroit-Mercy School of Law. Previously, I spoke about this at the University of the District of Columbia’s Expanding the Civil Right to Counsel: 50 Years After Gideon symposium, with the University of New Hampshire’s Erin Corcoran, and excellently moderated by UDC’s Kristina Campbell, director of their Immigration and Human Rights clinic. (Here’s a video link). I also submitted a comment to the ABA’s Task Force on the Future of Legal Education on the implications of non-lawyer representation on legal education. Thanks also to Linus Chan of DePaul’s immigration clinic, who informed my thoughts. DePaul does great work with accredited representatives in Chicago. Thanks also to Brooklyn Law students Mary Bruch, Molly Kammien, Timothy Poodiack, Elana Rodman, and Tung Sing Wong for excellent research assistance.

***

Background. The use and professionalization of U.S. non-lawyer immigration accredited representatives is growing, as advocates seek to increase immigrants’ access to justice. (See Erin Corcoran’s and Careen Shannon’s work). In the U.S., non-lawyers currently provide fairly full legal services in civil immigration proceedings—essentially, everything except an appeal to the federal Circuit. The Board of Immigration Appeals (“BIA”) authorizes over 1,200 “accredited representatives” to represent noncitizens on behalf of “recognized organizations” before the Department of Homeland Security and the Executive Office of Immigration Review (“EOIR”).

The BIA accreditation system essentially encourages on-the-job learning through apprenticeship. To qualify for recognition by the BIA, a non-profit organization may charge no more than nominal fees for immigration services, and must “[have] at its disposal adequate knowledge, information and experience.” Once recognized, an organization may sponsor its employees for accreditation if they demonstrate “good moral character” and “experience and knowledge of immigration and naturalization law and procedure.”

From an access to justice perspective, the question is whether non-lawyers are better than no representation, or whether, as Careen Shannon noted, non-lawyers may “do more harm than good.” Public interest advocates have generally favored non-lawyer representation—in part in reaction to the traditional economic protectionism of the lawyers’ bar, and in part to increase access to justice for the indigent unrepresented. James Greiner and Molly Jennings described the latter rationale as “the idea that every little bit helps, and each little bit helps a little more.” Yet “[p]erhaps, like a small dose of antibiotics, a small amount of lawyering can be ineffective, or even harmful….”

At times, accredited representatives have indeed acted inadequately or negligently. For example, the infamous “Father Bob” Vitaglione took on 761 cases at once, hundreds in which he failed to show or showed up unprepared. U.S. scholars have thus recently emphasized enhanced licensing standards and oversight to encourage higher professionalism and skill in non-lawyer representation. Careen Shannon proposed a model unauthorized practice-of-law statute that would, inter alia, define the practice of immigration law and who can engage in it, strengthen enforcement provisions, encourage BIA accreditation, and establish a trust fund to fund training for accredited representatives. Shannon also suggested a “competency exam” similar to a bar exam, and ongoing training similar to CLE training, in addition to the existing requirements. Erin Corcoran highlighted the BIA requirement that a qualified organization must nominate an individual representative, so as to provide extra layer of oversight over and above an immigration law test.

Thus, U.S. non-lawyer immigrant representation is moving towards the model in place in Canada, the U.K., and Australia. Each has regulated immigration non-lawyer representation, with standards governing practice (for example, ethical rules and requirements of indemnity insurance); oversight mechanisms, such as disciplinary proceedings; and professional organizations, similar to bar associations. (Nor is the U.S. trend towards non-lawyer representation limited to immigration law. For example, Social Security disability and patent and trademark hearings also provide regulated non-lawyer representation, as Erin Corcoran pointed out.)

Constitutional Questions. Constitutionally, the Court will consider whether immigrants (particularly detainees) have a right to counsel. The cases are coming. The ACLU recently hired a Fellow to “help establish a right to appointed counsel for immigration detainees.” And at least for lawful permanent resident noncitizens, it is settled they possess due process rights.

These cases will also raise the sub-question whether nonlawyers suffice for due process. The U.S. Supreme Court has essentially sanctioned non-lawyer representation as a potential “middle ground” between no and full representation, in civil Gideon cases which deprive one of liberty. Recently, in Turner v. Rogers, 131 S. Ct. 2507 (2011), the Court allowed that a non-lawyer social worker might suffice for due process in a civil contempt proceeding—but in a way that opened the door to wider use of non-lawyer representation.

Previously, the Court had sanctioned specialized non-lawyer representation, such as a medical professional, where the particular factual issues were specialized rather than general. Thus, in Vitek v. Jones, 445 U.S. 480, 499-500 (1980), the concurring fifth vote sanctioned specialized non-lawyer representation in psychiatric commitment hearings (i.e. a mental health professional). In Washington v. Harper, 494 U.S. 210 (1990), the Court extended this reasoning to hearings regarding forced medication of mentally disordered prison inmates. But the Turner Court extended this rationale to factual issues more generally, in suggesting that a social worker might suffice to assist the “straightforward” factual determination of indigence.

U.S. immigration proceedings, in which professionalized non-lawyers already practice, may be a candidate for this new middle ground. As I, Ingrid Eagly, Kevin Johnson, and Laura Abel point out, Turner v. Rogers may well support a right to counsel for immigration detainees. Immigration removal proceedings deprive liberty through detention and deportation. And unlike Turner and Vitek, immigration proceedings often involve incredibly complex legal questions, with Government counsel on the other side unlike Turner. That said, the potential politicization of a ruling that provides counsel to immigrants may be the strongest motivation for a “middle ground” approach of non-lawyers. (The Court’s decision not to retroactively extend Padilla v. Kentucky may have been motivated more by politics than law. Denver’s Christopher Lasch suggested as much on this blog.) And practically, if non-lawyers are already practicing in immigration court, the precedent has been set.

The Court may consider the nuances of non-lawyer representation and due process. For example, even though immigration proceedings typically involve much evidence, there are few formal evidentiary rules—which, among other things, may raise the question as to which lawyers’ skills are necessary to ensure due process. (I.e. having taken Evidence in law school, or the ability to test evidence in court?)

Pedagogical Questions. More broadly, the Court’s question might be: If the salient difference between lawyers and non-lawyer representatives is law school, then what does law school add that ensures due process? Or, another way: Does legal education provide value to representation that apprenticeship does not? How much value, regarding what skills? Pedagogically, these questions are old, but constitutionally, they are new.

Pedagogically speaking, the answers to these questions will have profound implications at this time of intense debate regarding the value of law school. If a future Court constitutionally sanctions the current practice of non-lawyer accredited representatives, even in immigration proceedings involving complex legal and evidentiary issues, that might essentially invite a return to the apprenticeship model of legal training and de-emphasize the value of law school. After all, if one desiring to represent immigrants can do so by working for an immigration services organization, without law school debt—why law school?

That said, the development of pedagogically sound skills-based legal education, spurred by the Carnegie report, may train better lawyers today in a way that mere apprenticeship could not, and traditionally did not. For example, the recent trend towards teaching client-centered lawyering, through pedagogically sound experiential and clinical education, may give law school graduates training in advising clients that apprenticeship could not. Law school clinics, given their traditional social justice mission, could also provide specified training to future immigration lawyers—i.e. “soft” skills beyond legal analysis—in a way apprenticeship historically did not.

As these observations suggest, the difference between lawyers and non-lawyers may not be so much “knowing the law,” i.e. traditional legal analysis of statutes. Most lawyers might not know “the [immigration] law” anyway. After all, law schools don’t require immigration law. Even if a lawyer took Immigration I, that could hardly prepare that lawyer for the incredible complexities of applying immigration law to facts in actual practice. Rather, anecdotally, the difference between lawyers and non-lawyers seemingly owes more to inculcated cultural, professional, and ethical norms of being a lawyer. Lawyers, it seems, more often give more complete answers covering all possibilities and satisfying ethical norms, rather than simply giving a solitary answer. Those skills could be learned through apprenticeship. But it’s possible as well that skills-based education, with pedagogically developed self-reflection, teaches those skills better today.

Back to legal education. So, as I put it in March to a room of University of District of Columbia law students: What parts of your legal education made you a better lawyer today than when you entered law school? And what parts are necessary to effectively represent a client in court, to a minimum standard of due process? Was it learning legal analysis? Oral argument? Taking Evidence and learning the Federal Rules, or learning how to test evidence upon cross-examination in your clinical course? Learning how to counsel clients and resolve ethical questions in your clinic or internships? When did you learn that skill – upon doing, or reflecting?

And as legal education moves away from a one-size-fits-all model, could legal education short of three years do the trick, in the Court’s eyes? Some schools are already incorporating two-year J.D.’s. Could a specialized one-year “immigration J.D.,” skills training, and passage of an “immigration bar exam” suffice for due process, even if non-lawyer representation does not?

Empirical Questions. To inform these constitutional and pedagogical questions, there is a real need for empirical research to begin to define and test the adequacy of non-lawyer representatives and legal education programs to train them. Put simply, empirical research is needed as to whether non-lawyers can perform as well as lawyers in immigration proceedings, and which proceedings, in what ways. I.e. of the “three A’s” of lawyers’ skills—analysis, advocacy, and advice—which non-lawyers perform just as well without law school, and which they do not.

Quantitative empirical analysis of outcomes in immigration proceedings—i.e. comparing success rates for those represented by lawyers versus non-lawyers—is an essential first step to test the adequacy of professionalized non-lawyer representation. Recent studies, such as Judge Robert Katzmann’s New York Immigrant Representation Study, have made it clear that representation matters greatly to success in immigration proceedings, at the least. It is surprisingly unclear, though, whether and how much non-lawyer representation matters compared to traditional lawyer representation and pro se attempts to litigate. No one yet has studied whether a non-lawyer accredited representative wins as much in immigration court as a lawyer. (In the Social Security context, as Erin Corcoran noted, older empirical data showed little difference in the success rate for clients represented by a non-lawyer versus a lawyer.)

Secondly, delineation of the lines described above—i.e. which cases require “lawyer’s skills,” and which skills a non-lawyer specialist might capably perform—may be more achievable through long-term qualitative research. This research would follow Laura Abel’s suggestion to conduct “process analysis,” and go beyond traditional access-to-justice research on case outcomes to more specifically research “the tasks involved in litigating a particular case.” Such research might be achieved through more neutral observational vehicles.

Once these empirical questions are answered, further empirical research may inform legal educators’ questions as to whether and how to provide the “limited license” programs described above—i.e. a specialized one-year “immigration J.D.” Legal educators might seek preliminary answers to some of these questions by conducting empirical research on immigration accreditation programs (or others), along the lines of the research proposed above.

*** This will be my last post of my guest blogging stint for now. Thank you, César, for giving me this opportunity. It’s great to contribute.

While I have a public forum, I’d like to thank as well the Brooklyn Law students in my inaugural Constitutional Civil Rights and Immigration seminar. These students— Setenay Akdag, Venus Bermudez, Scott Foletta, Gillian Kosinski, Beile Lindner, Erin McKeever, Ari Rosmarin, Svetlana Turova, Rachel Weissman, Tung Sing Wong, Linda Yu, and Liat Zudkewich—considered the most contentious and difficult issues in civil rights and immigration today, and produced a set of groundbreaking papers that push the boundaries of the debate even further. Their papers examined topics like interdisciplinary “crimmigration” and “fammigration” courts; the impact of Secure Communities on domestic violence and school policing; comparisons of detention to international human rights law, or modern immigration law to Jim Crow; and the constitutionality of drivers’ licenses for DACA recipients, inadequate translation in immigration proceedings, poor religious dietary access in detention, deportation for probation violations, English-only laws, and relitigation of criminal facts in immigration courts. As I told them all, teaching a class with students like them in it is what made me want to be a teacher. Thank you all.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

Mark Noferi and Robert Koulish

[Ed. Note: Today, Mark Noferi is joined by Professor Robert Koulish, a political scientist in the Department of Government and Politics at the University of Maryland who also teaches immigration law at Maryland’s Carey School of Law. Professor Koulish’s most recent book is “Immigration and American Democracy: Subverting the Rule of Law,” in which he examined immigration control as a laboratory for post-9/11 expansion of U.S. executive power, and he is co-editing “Immigration Detention, Risk and Human Rights—Studies on Immigration and Crime” (2014 release). His recent article is “Entering the Risk Society: A Contested Terrain for Immigration Enforcement,” published in the volume Social Control and Justice. Along with Professor Noferi, and other law professors and social scientists, he is a member of the CINETS Crimmigration Control international research consortium, founded by Juliet Stumpf and Maria João Guia.

Together, Professors Koulish and Noferi are studying Immigration and Customs Enforcement’s (ICE’s) use of its new automated risk assessment tool. They discussed the issue in Baltimore Sun and Newark Star-Ledger op-eds, and will discuss further in forthcoming pieces under review.]

***

If S. 744 passes, DHS has an opportunity to significantly reduce unnecessary over-detention of immigrants. DHS will make an “individualized determination” perhaps further, support outright repeal regarding detention for all. For those mandatorily held under INA § 236(c) for certain prior crimes, DHS will have explicit authority to place those individuals into “custody” rather than detention, “custody” now interpreted to include electronic tracking bracelets. For those discretionarily held under INA § 236(a), bond hearings must be provided within a week. At these hearings, DHS will have to demonstrate to an immigration judge that "no conditions, including ... alternatives to detention" will "reasonably assure" appearance at hearings and public safety. DHS will have to establish alternatives to detention that provide a "continuum of supervision,” including community support, case management, and appearance assistance services. DHS will be required to review an individual’s level of supervision monthly, and detainees will receive a custody review at least every 90 days.

Left unspoken in S. 744, however, is the process that will underlie DHS’ “individualized determination”—risk assessment. On March 19, ICE Director John Morton announced to Congress that ICE had deployed nationwide its new automated “Risk Classification Assessment” tool. Using this computerized tool—akin to a “point system”—ICE will collect information about an immigrant; ask its databases for a recommendation as to risk of flight or to public safety; and based on that recommendation, decide whether to detain or not. We think the information collected will include criminal history, family history, community ties, and vulnerabilities such as disability or crime victim status.

Risk assessment has drawn bipartisan support for its utility in criminal bail recommendations, especially in reducing cost. As Rep. Spencer Bachus (R-Ala.) recently asked Morton, “Are you overusing detention? Why don’t you do a risk assessment?” Alternatives to detention cost a tenth of detention or less—$14 per day as opposed to $164. Helpfully too, ICE's systems can produce statistical reports and trend analysis of its risk assessments to "better assess situations where [noncitizens] with similar characteristics seem to have different detention outcomes."

Thus, ICE risk assessment data has the potential to empirically support S. 744’s proposed reforms to reduce detention, and further reforms (as we wrote in the Baltimore Sun). First, ICE's risk practices and data may support ending mandatory detention. Risk data might show that individualized release determinations would not appreciably increase risk of flight or danger, especially regarding detainees with U.S. family ties. It may support S. 744’s revision of mandatory detention into mandatory “detention or custody,” and perhaps further, support outright repeal of mandatory custody altogether.

Second, ICE's risk practices and data may help Congress reform ICE's over-detention relative to U.S. criminal systems. For example, NYU’s Insecure Communities report found that in New York from 2005 through 2010, 80 percent of ICE arrestees were denied bond, with fewer than 1 percent released with no bond. By comparison, in criminal cases continuing past arraignment, 1 percent of defendants were denied bail, with 68 percent released with no bail. Congress should provide that DHS and immigration judges consider clear criteria regarding flight or danger, as criminal judges do, based on the risk data ICE now collects. Moreover, at the very least, individualized risk assessments should negate any need for Congress to continue its “bed quota” requiring 34,000 detainees at any one time (as the New York City Bar also advocated).

Third, comprehensive, accurate risk assessments should help reduce the severity of ICE detention. Dora Schriro, author of ICE's 2009 oversight report on detention, called immigrant detainees "appreciably different" from criminal detainees—often with intact families and jobs, well-developed life skills and nonviolent conduct. Yet, as the American Bar Association documented, immigrants largely remain in facilities "designed to hold criminal offenders," many actual jails. Even ICE's new civil detention standards are still modeled after jail standards. The ABA's model immigration detention standards provide a forward-thinking blueprint for both less and less restrictive detention, tailored to civil immigrant detainees. Congress should adopt the ABA standards into law (as the New York City Bar also advocated).

Yet risk assessment, along with its potential to support reform, poses potential concerns. Transparency is one (as we wrote in the Newark Star-Ledger). ICE has not released its risk assessment criteria. So, as things stand, ICE’s computers now determine immigrants’ liberty based on secret algorithms, which ICE officers must presumptively follow. There appears “no opportunity for immigrants to change or review information,” as New York City Bar wrote. All the more concerning, human rights advocates previously criticized the risk assessment tool for being weighted toward over-detention. If the risk tool says all immigrants are risky, detention reforms will be for naught. Since ICE refuses to release information related to RCA algorithms, it is unclear how risk will be measured, which variables will be used and how they will be weighted. Further, without having access to the risk assessment summary the immigration judge will have no evidentiary basis for a bond hearing. Congress should require immediate disclosure of ICE's risk assessment criteria, and require that the risk assessment summary, currently placed in DHS' file on an immigrant (the "A-File"), be reviewed in immigration court (as City Bar recommended as well).

Additionally, Congress should require ICE to publicize its statistical reports analyzing its new risk assessment practices (as S. 744 Section 3716 requires DHS to publicize other detention oversight activities). These reports could help prevent not only overuse of detention, but overuse of the most restrictive alternatives to detention. Immigrants in tracking bracelets are “freed but not free,” as a recent Rutgers-Newark School of Law study found. Restrictive alternatives should be reserved for the higher-risk, not expanded to nonviolent, long-time residents who should simply be released.

More broadly, the introduction of risk assessment technologies, without concomitant changes to laws requiring mandatory custody or practices resulting in over-detention, may facilitate a societal transformation from mass detention of immigrants to mass supervision. Alternatives to detention may garner wide public support, since the risk decision is purportedly neutral and computerized, and tracking bracelets are relatively cheap. But they also create additional risk for immigrants and society alike. A new risk assessment frame for immigration enforcement will increase the capacity for social control. While more immigrants may be freed from incarceration, for example, they will hardly be free under electronic or community supervision. This future “risk society” raises separate civil liberties concerns and societal inquiries, which we plan to address in forthcoming work.

Mark Noferi

Yesterday, I highlighted the New York City Bar Association immigration committee’s advocacy for universal appointed counsel in immigration proceedings, as well as City Bar’s analysis of Senate Judiciary Committee amendments that would roll back the limited right provided by S. 744. (City Bar’s April 24 letter supporting appointed counsel is available here, and its statement here).

Today, I’ll highlight City Bar’s advocacy for reduced detention, and its analysis of amendments that, similarly, roll back the advances provided by S. 744. (City Bar’s second letter supporting reduced detention is available here). As yesterday, although I summarize here some of City Bar’s positions, I speak in my personal capacity.

***

S. 744, while not dismantling the current system of immigration detention and deportation, took some significant steps to reduce over-detention, as César and myself previously summarized. S. 744 effectively revised mandatory detention without bail, for those with certain prior offenses, into mandatory “detention or custody,” now allowing alternative forms of custody like tracking bracelets. (This would overturn DHS’ interpretation that “custody” requires incarceration, despite opposing authority in criminal law.)

More generally, S. 744 encouraged alternatives to detention such as community-based supervision; provided important due process protections, such as timely bond hearings; and required additional, much-needed oversight and transparency over DHS detention facilities, whether publicly or privately owned. All these reforms would make civil immigration detention more humane, more fair, more cost-effective—and most importantly, there would be less of it. As the City Bar said, citing crImmigration.com, “if the term ‘civil’ detention means anything, it is that ICE should detain not just better, but less.” For those reasons, City Bar urged Congress to repeal mandatory detention or custody entirely, as other organizations repeatedly have.

Subsequently, Senator Charles Grassley (R-IA) proposed three amendments— 47, 51, and 53—that would collectively strike these reforms and reinstate and expand over-detention. Sen. Grassley’s Amendment 47 would entirely strike Section 3717, which provides due process protections such as bond hearings and time limits on detention. Amendment 51 would entirely strike Section 3715, which encourages alternatives to detention. And Amendment 53 would replace these sections with expanded detention, regardless of flight or safety risk.

Reading Amendment 53’s provisions is like inhabiting a parallel universe, in which the current detention system’s worst abuses are considered problems that more detention should fix. Under Amendment 53, mandatory pre-hearing detention would explicitly have no time limits, and apply no matter how long ago an individual completed criminal custody. (Needless to say, mandatory detention would also apply no matter how long one lived in America or whether one had a green card, job, or family.) For discretionary detention decisions, the burden on immigrants to prove their release would worsen, to “clear and convincing evidence.” (S. 744, conversely, shifted the burden to the government to detain, only if “no conditions including… alternatives to detention” would “reasonably assure” appearance at hearings or public safety). Moreover, Amendment 53 explicitly eliminated any ability of immigration judges to review custody status. And Amendment 53 expands mandatory detention after a removal order, as well.

Amendment 53 flies in the face of bipartisan support for detention reform. Nine in ten Americans, of all parties, support a “time limit on how long someone can be held in jail for immigration violations before they see a judge.” Conservative activist Grover Norquist and Rep. Spencer Bachus (R-AL) have questioned whether DHS is over-detaining immigrants. As Rep. Bachus asked ICE Director John Morton, “If these people are not public safety risks, if they are not violent, if they don’t have a criminal history, if they are not repeat offenders, if they’re going to show up for proceedings, why are they detained at all?” Indeed, Rep. Bachus went further: “Are some of those [immigrants] mandatory detentions that [ICE] could recommend to Congress that they not be?”

Moreover, Sen. Grassley’s amendments are likely unconstitutional. Unlimited detention without any judicial review violates due process and fundamental American presumptions of liberty, and raises “serious constitutional concerns,” as the U.S. Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Lawsuits are already underway to challenge the harshest provisions of Amendment 53: prolonged detention without a bond hearing, the high burden already placed on immigrants to be released, and mandatory detention of those with convictions completed long ago. Undoubtedly more will follow if Amendment 53 is passed. City Bar opposed these Amendments.

Additionally, Sen. Jeff Sessions (R-AL) proposed an amendment (Sessions 12) to increase the bond minimum, from $1,500 to $5,000, to non-Mexican and non-Canadian immigrants (such as asylum seekers) who have not been admitted or paroled, and who are either 1) apprehended within 100 miles of the border or 2) present a “flight risk” as determined by ICE.

City Bar opposed this amendment as well. High bail is unfair to those without money. As the Justice Policy Institute wrote, the “ability to pay money is neither an indicator of guilt nor of risk, and means people are not properly screened for more rational measures of public safety.” Immigration bonds already are unnecessarily high—and far higher than those for criminal defendants, even though immigrants are less dangerous. For New York ICE arrestees, 75% of bond settings are $5,000 or more, and 35% are $10,000 or more. 55% of those ICE arrestees were unable to pay, and one in five of those have children. Conversely, for New York criminal pretrial detainees, 80% of bond settings are $1,000 and below. (These statistics come from the study “Insecure Communities,” authored by the NYU Immigrants’ Rights Clinic, the Immigrant Defense Project, and Families for Freedom.) Indeed, in City Bar’s initial letter, City Bar proposed to entirely eliminate the current $1,500 artificial immigration bond minimum, and make bond determinations more like the criminal system, where judges review bond under clear criteria without artificial restrictions.

As part of a transparent bond review process, City Bar also supported risk assessment as having “promise to reduce over-detention.” That said, City Bar noted that currently, “ICE appears to be making computerized determinations regarding immigrants' liberty based on a secret algorithm with no opportunity for immigrants to change or review information.” City Bar recommended immediate disclosure of ICE's risk assessment criteria, and that risk assessments be reviewed in immigration court. Robert Koulish, a University of Maryland political scientist, and I are writing about the promises and dangers that risk assessment poses (most recently, in the Baltimore Sun and Newark Star-Ledger). We’ll continue this conversation tomorrow.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

Mark Noferi

First, I’d like to thank Cesar for allowing me to guest blog this week. It’s been great to be involved as crImmigration has grown into the Internet’s most thoughtful analysis of crime and immigration issues. (You can also read my prior crImmigration posts on American Bar Association civil immigration detention standards, Moncrieffe v. Holder, and S. 744’s appointed counsel and detention provisions).

Today, I’ll start by summarizing recent amendments to appointed counsel and due process provisions in S. 744—largely under the radar in the reform debate (though I recently addressed this in an article on Slate)—and highlight the New York City Bar Association immigration committee’s advocacy work for stronger protections. Tomorrow, I’ll move on to detention-related provisions. Later this week, my co-author Robert Koulish and I will post on Immigration and Customs Enforcement’s (ICE’s) new risk assessment tool, which appears central to future detention decisions no matter what the outcome of reform. Although I summarize here some of City Bar’s positions, I speak here in my personal capacity.

***

The Senate Gang of Eight’s immigration reform bill, a.k.a. S. 744, contained in its 844 pages some significant advances to increase due process and reduce detention, as César and myself previously summarized. The New York City Bar Association, through its Immigration and Nationality Law Committee, issued two strong, detailed letters on April 24 recognizing these advances, but proposing further reforms to expand appointed counsel, reduce detention, and help our immigration system better reflect American values. (The City Bar’s public statement is also here.)

Meanwhile, of the over 300 amendments Senators proposed on May 7, nine would together largely reverse S. 744’s advances on due process and detention: Sen. Charles Grassley’s (R-IA) Amendments 39, 40, 41, 42, 47, 48, 51, and 53 and Sen. Jeff Sessions’ (R-AL) Amendment 12. City Bar then provided detailed analyses of these nine amendments, filling an important gap in the public debate, and its members are meeting with House and Senate staffers in Washington, D.C. The Senate Judiciary Committee began to consider amendments on May 9, and will continue “marking up” the bill today. These detention and due process amendments are expected to be considered by May 24, along with the rest of S. 744’s Title III addressing interior enforcement.

I’ve been proud to join these City Bar efforts, led by Professor Lenni Benson of New York Law School, who chairs the Immigration Committee with indefatigable effort and a wealth of knowledge. (Most recently, Prof. Benson co-authored a report by the Administrative Conference of the United States that concluded additional representation would help unclog overwhelmed immigration courts.) Special thanks also go out to Wilmer Hale’s pro bono team of Nicole Feit, Sanhita Sen, Ellie Martin, and Jonathan Pressman for their unflagging advocacy, writing, research, and support. Comments and suggestions would be welcome, as we continue our advocacy.

I’ll provide brief summaries here of this advocacy and recent amendments—today, on appointed counsel and due process provisions, and tomorrow, on detention-related concerns.

Appointed Counsel

S. 744 took a groundbreaking step by voluntarily providing appointed counsel to immigrants in removal proceedings—albeit only to children, the mentally ill, and the vaguely-described “particularly vulnerable when compared to other aliens in removal proceedings.” (Sec. 3502(c), p. 569). Few disagree with counsel to the first two groups. Indeed, shortly after S. 744, DHS and EOIR agreed to provide appointed counsel to the mentally ill in response to federal court litigation. But the third category raises additional questions. Who exactly is a “particularly vulnerable” immigrant in removal proceedings? Asylum seekers? Detainees, 84 percent of whom lack lawyers? Perhaps more to the point, who is not “particularly vulnerable” in removal proceedings that by definition force an individual to argue—under Byzantine statutes, against a Government lawyer, often in a foreign language—whether he or she stays in America? Indeed, conducting ad hoc, case-by-case reviews of whether one is “particularly vulnerable” would itself likely exacerbate immigration court backlogs. (See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 50-51 (1981) (Blackmun, J., dissenting).)

City Bar’s letter recognized S. 744’s advance, but advocated a more inclusive approach—free counsel to all indigents in removal proceedings (including expedited removal), as well as those bringing humanitarian claims such as asylum, the Trafficking Victims Protection Reauthorization Act ("TVPRA") or the Violence Against Women Act ("VAWA").

Many supporting arguments may be familiar to this blog’s readers (or those of my article that advocated for appointed counsel to immigrant detainees). Deportation, although technically "civil," involves much higher stakes than the typical civil proceeding-banishment from family, friends, livelihood, and property, or "all that makes life worth living." For these reasons, the right to counsel in criminal cases now includes immigration advice, after Padilla v. Kentucky, 130 S. Ct. 1473 (2010), since deportation can be "the most important part" of a criminal conviction. Immigration proceedings also force a uniquely vulnerable population to litigate uniquely complicated issues. As Justice Alito stated in Padilla, "[N]othing is ever simple with immigration law." And detention exacerbates the situation further, by depriving liberty, separating detainees from families, and frustrating any ability to meaningfully litigate a case.

Two particular arguments in City Bar’s letter warrant mention here. First, “there is no citizenship test for counsel in America.” We may forget this, since immigration proceedings are supposed to only involve non-citizens (theoretically). But when the U.S. or its states provide counsel, whether in criminal, civil, or military proceedings, we provide it to citizens and non-citizens alike. Put another way, the familiar Miranda words "You have the right to an attorney. If you cannot afford an attorney, one will be provided for you" do not include "only if you are a citizen." We do this because procedural safeguards reflect American values of fairness and due process, regardless of the defendant's identity.

And the U.S. and its states already provide counsel in many high-stakes proceedings, whether criminal or civil. For example, 44 states now provide counsel in civil proceedings to terminate parental rights. Deportation too frequently results in the same outcome. So to provide counsel in immigration proceedings, like many other high stakes proceedings involving loss of liberty or children, would not be so groundbreaking. Rather, a greater break from tradition would be to leave immigrants without lawyers, thus imposing a de facto citizenship test for appointed counsel.

Secondly, based on Prof. Benson’s report, the City Bar letter argued that “providing counsel to indigent non-citizens saves the government money by 1) preventing unnecessary court proceedings, 2) reducing the amount of time non-citizens spend in detention, and 3) relieving the burden of government support to disrupted families.” Existing Legal Orientation Programs ("LOPs") for detainees, in which advice is provided without full representation, have shortened case processing times for detainees by 13 days on average. Full representation would likely increase efficiency even further. City Bar recommended the creation of an independent immigration defender's office, modeled on the federal public defender office, with direct granting authority that would provide the Executive Office for Immigration Review with an independent stream of income. (On that point, City Bar cited UCLA Law Professor Ingrid Eagly’s helpful new Yale Law Journal article Gideon’s Migration).

Unfortunately, no Senators have (yet) proposed amendments for a more universal right to counsel, even though counsel for immigrants draws strong, bipartisan support. In a recent poll, three-quarters of Americans, and two-thirds of Republicans, support ensuring that "immigrants can have legal representation if they face deportation." Reasons for Senatorial reticence are unclear.

Meanwhile, several amendments scaled back S. 744’s provision of the right to counsel, and other due process improvements:

Grassley Amendment 40: This amendment proposes to make appointed counsel for children and the mentally ill discretionary, rather than mandatory. It also strikes the “particularly vulnerable” language altogether, as well as language providing funding for lawyers from the new immigration reform trust fund.

This Amendment makes little sense. As City Bar said, “There is no justification to force any children or mentally ill to defend themselves in court.” Moreover, case-by-case hearings to determine which children or mentally ill can purportedly defend themselves would be “inefficient, unfair, and useless without funding.” At risk of sarcasm, will U.S. immigration judges really hold hearings to determine how old a child must be before he or she can “play lawyer”? Eight? Ten? And at the end of the day, if immigration judges know that counsel won’t be paid for, immigration judges won’t appoint counsel. City Bar opposed this amendment.

Grassley Amendment 41: This Amendment eliminates the new proposed Office of Legal Access Programs, which would oversee the Legal Orientation Program (LOP). As noted, the LOP has made immigration proceedings fairer and more efficient for detainees, with benefits outweighing its costs. As City Bar pointed out, the Office of Legal Access Programs would institutionalize the LOP, and give it LOP independence from immigration courts, which avoids any appearance of impropriety. It is unclear what purpose this Amendment would serve, except to prevent the institutionalization of legal advice. Although City Bar recommended that Congress should go further than the LOP and provide universal appointed counsel, City Bar opposed this amendment.

Grassley Amendments 39, 48: These Amendments require the General Accounting Office (GAO) or Comptroller General to conduct a study of immigration courts’ workload before increasing immigration courts’ staff and resources, as S. 744 provides for.

These Amendments appear to be delaying tactics. The reports documenting extremely overloaded immigration courts have already been written—by Prof. Benson and the bipartisan Administrative Conference of the United States (137 pages); by the bipartisan American Bar Association (282 pages); and by the Appleseed Foundation (108 pages). As the Appleseed Foundation wrote, “Immigration Courts are so backlogged that in some places half-day hearings are being scheduled for 2015.” And when “DHS admits that its attorneys are ‘dodging bullets’ and a sitting judge testifies before Congress that her court system is broken,” it may be time for a “transformative fix,” let alone additional resources and funding. But additional resources and funding, without delay, would only help. City Bar opposed this amendment.

Grassley Amendment 42: This Amendment would keep in place procedures allowing for single-judge decisions by the Board of Immigration Appeals, and overturn S. 744’s proposal to return to the three-judge system.

In the 2000s, the Bush Administration allowed the Board of Immigration Appeals (BIA) to decide appeals in summary fashion by a single judge. Federal Circuit immigration appeals then exploded fivefold. Federal judges such as Second Circuit Judge Robert Katzmann and Seventh Circuit Judge Richard Posner criticized the poor quality of decisionmaking in immigration courts. The Second and Ninth Circuits hired extra staff attorneys, at extra costs, just to handle immigration cases. And as Prof. Benson related, the federal government’s Office of Immigration Litigation (OIL) appeals unit still seeks to remand, on its own initiative, one-quarter of federal Circuit appeals from the BIA because the records below are poor.

Returning to the three-judge system, as S. 744 proposes, is a common-sense move. Conversely, if enacted, Amendment 42 would instead reduce fairness, increase inefficiency, and increase the workloads on federal circuit courts, ultimately increasing costs to taxpayers and slowing down the immigration process for all. City Bar opposed this amendment. (See generally here Robert Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5-6 (2008), citing e.g. Lenni B. Benson, Making Paper Dolls: How Restrictions on Judicial Review and the Administrative Process Increase Immigration Cases in the Federal Courts, 51 NYLS L. Rev. 37 (2006).)

Tomorrow, I’ll explore the detention-related amendments to S. 744.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

Patty Corrales

On April 23, 2013, a federal district judge ordered in the case of Franco-Gonzalez v. Holder, a class action lawsuit, the U.S. Immigration and Customs Enforcement, the Attorney General, and the Executive Office of Immigration Review to provide legal representation to immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings. Franco-Gonzalez v. Holder, No. CV 10-02211 DMG, slip op. (C.D. Cal. April 23, 2013) (Gee, J.).

The ruling is the first of its kind for immigrant detainees who are mentally ill and who often languish in detention facilities for years without legal representation. The case applies only to certain detainees who reside in Arizona, California and Washington and comes as a result of a lawsuit filed by José Antonio Franco-Gonzalez, a Mexican immigrant with a cognitive disability who was detained in federal immigration facilities for nearly five years without a hearing or a lawyer

In the court’s ruling, Judge Dolly M. Gee determined that for this type of immigrants who suffer mental illness, appointed counsel “is the only means by which they may” defend themselves. Moreover, the court criticized the government for not having any safeguards to protect this most vulnerable population: “In this case . . . the very basis of Plaintiffs’ claim is the absence of meaningful procedures to safeguard” detainees with mental disabilities. As a result, the Court ordered that these detainees with serious mental disabilities be provided with qualified representatives at government expense and a bond hearing to avoid prolonged detention.

The ruling provides that immigrant detainees with mental disabilities finally get their day in court with representation that will ensure their due process rights are protected. The lawsuit was brought by the ACLU of Southern California and the ACLU Immigrants’ Rights Project.

The decision is a milestone but does it go far enough? My answer: No.

Problem: A relatively small but identifiable portion of society, our mentally ill immigrants, are needlessly suffering from the inability of immigration judges to order alternative detention solutions or court-ordered mental health counseling.

In the early 1970s, there was a shift in public policy regarding the mentally ill that consisted mainly of reducing public services. Politicians did not want to create a “welfare state”. L.L. Bachrach, Deinstitutionalization: An Analytical Review and Sociological Perspective (1976). As a result of this shift in policy, there was systematic mass closing of residential psychiatric hospitals nationwide treating the mentally ill. The process known as deinstitutionalization aimed at mainstreaming mentally ill patients back into the public. Id. Included in this population of the mentally ill were undocumented immigrants. Id. The unintended consequence of this deinstitutionalization was the shift in care of the severely mentally ill from the mental health community to the emergency services and corrections communities. It resulted in thousands of severely mentally ill persons being sent into the public, most often without psychiatric care and follow-up that they would need to function in society. Without resources available to them, many of the mentally ill became homeless or involved in otherwise preventable criminal activity. Id.

One such individual is a client I am defending in removal proceedings. Mr. Alvarez is a sweet and gentle 47-year-old who as a young child exhibited mentally illness and severe epileptic attacks. Mr. Alvarez may be 47 in physical age but he thinks, acts and speaks as someone with the acuity of a six-year-old.

His parents came to this country many years ago and brought him to the United States to get treatment when he was 6-years-old. At the time, Mr. Alvarez had no status. Eventually, his parents and the rest of his family became lawful permanent residents. Unfortunately someone had told his mother and father that because Mr. Alvarez was mentally ill and “stupid,” they could not petition for him. As a result, Mr. Alvarez was left without any status. In 1985, his parents put Mr. Alvarez in a hospital hoping and praying that the doctors could treat him. He was there for 72 hours and then the hospital discharged him because he was illegal and because there was no room at the hospital. Mr. Alvarez didn’t get any help.

A few years later, in 1992, he was arrested for lewd and lascivious acts upon a child under 14 years of age. Mr. Alvarez’s mental illness was never discovered by his public defender. It was never raised as a defense to the criminal charges. Why? I have no idea. Mr. Alvarez has no recollection of the day he got arrested, but his family said that “he would not do something like that.” His family believes that he was playing like a gentle child but that someone mistook his innocent mindset as an abusive physical contact. Mr. Alvarez pleaded guilty to the lewd and lascivious charge without understanding what he did or what it meant. He did 4 years in jail during which he received no mental health treatment.

In the 1990s, an illegal immigrant who was in the criminal system did not necessarily go straight to immigration authorities so Mr. Alvarez was not placed in deportation proceedings after his conviction. It was not until 2012 when Mr. Alvarez was convicted of failing to register as a sex offender that he came to the attention of immigration authorities. Mr. Alavarez failed to register because he had suffered a severe epileptic attack and was at a public hospital trying to get medical help. It did not matter because again his public defender didn’t recognize the mental health issues. Like before, Mr. Alvarez pleaded guilty to this offense and was sentenced to probation, only this time he was turned over to ICE.

I’ve met Mr. Alvarez and, as a prior prosecutor, I’m convinced that he is innocent. That is irrelevant, however, because immigration judges cannot look behind the conviction documents. Mr. Alvarez was detained for a very, very long time because ICE believed that his conviction in 1992 subjected him to mandatory detention. It did not, but that’s of no consequence now.

His family, desperate to get their son, their brother, out of detention, borrowed money to hire a lawyer to get him out of detention because Mr. Alvarez’s epileptic attacks were worsening. They are humble folks that see legal services as a luxury. Somehow they found me and I was able to convince the immigration judge that his 1992 conviction did not make him “mandatorily” detainable. The immigration judge agreed.

Had Mr. Alvarez not had an attorney to point out the legal requirements of when and how mandatory detention works, he would still be sitting in detention. But, having a lawyer to represent a mentally ill immigrant is not enough. Yet, having a lawyer at counsel table is still not sufficient to safeguard an immigrants’ due process. Without having legal status, most mentally ill immigrants have few resources from which they can seek medical assistance. After I obtained Mr. Alvarez’s release from detention, he has gone twice to mental health hospitals and twice they have refused to treat Mr. Alvarez because he has no legal status.

If comprehensive immigration reform happens, it would be important to give immigration judges the power to order mental health counseling or the power to order a mentally ill alien to be enrolled in an out-patient program so that people like Mr. Alvarez get the treatment they need and that a just society should provide.

Patty Corrales is a Former Senior Attorney with ICE. She worked at ICE for over 17 years. She is now in private practice and has dedicated her practice to criminal defense and immigration defense.

Lauren Hines

Within Franklin County, Ohio, the most effective method for finding and removing criminal migrants is regulating the movement of migrants across space. Civil and criminal charges that often lead to a migrant’s arrest are subjective. The high removal rates of migrants without criminal records and migrants facing low-level misdemeanor and civil charges in Franklin County make sense within an enforcement framework that willfully obfuscates the line between criminal and civil codes, and criminalizes migrant interactions with law enforcement for the sake of creating removable criminal aliens.

Locally active immigration enforcement officers and the subjectivity of local law enforcement officers exacerbate the creation and subsequent targeting of criminal migrants for removal in the Franklin County context. Law enforcement communities are uncertain about their enrollment in immigration enforcement programs. Franklin County residents concerned by the Sheriff’s Office’s role in the Secure Communities program have approached Sheriff Zach Scott on multiple occasions. In an informal meeting with Central Ohioans, Sheriff Scott was initially unfamiliar with the program and stated that the Sheriff’s Office did not honor ICE detainer requests in spite of having submitted over 85,000 fingerprints to the ICE Law Enforcement Support Center since 2010. Even though law enforcement actively participate in the creation of removable criminal migrants through the process of enforcement, the formalization of the biometric data submission process obscures their direct role in enforcement.

The Secure Communities initiative operates to query individuals arrested on criminal grounds as to their immigration status, a dramatic shift from prohibiting non-federal authorities from enforcing civil aspects of the Immigration and Nationality Act. According to the Secure Communities Standard Operating Procedures for participating law enforcement agencies, the program exists to pinpoint migrants currently in the custody of law enforcement either charged with or convicted of “serious criminal offenses” and to establish enforcement strategies primarily targeting migrants “convicted of serious criminal offenses” for removal.

Secure Communities promises to establish safety and maintain the integrity of communities that face the threat of insecurity caused by the criminal presence of immigrants. ICE frames the program as a “simple and common sense” tool for keeping the nation safe from any threats to its security without “imposing” enforcement decision-making responsibilities on enrolled law enforcement agencies. This bolsters the discourse that enrollment is logical, and participation is an efficient way to fix the imagined correlation between immigration and crime on a local scale with federal support.

Signing on to participate in Secure Communities is a rational way for jurisdictions across the US, whether near a border or in the nation’s interior, to address undocumented and undesirable immigration to their communities. In protecting their communities through enrollment in Secure Communities, activated jurisdictions take on the responsibility to keep their communities and the nation safe from criminal immigrants. Participating jurisdictions enter into the memorandum of agreement without expecting additional responsibilities or costs, although programs divert existing local law enforcement resources to immigration enforcement. Once adopted by a jurisdiction, there is no guarantee that the program’s discursively-established internal parameters will be followed. Moreover, contradictions between stated enforcement strategies and enforcement practices result in uneven enforcement of the program’s goals to identify and remove convicted level 1 criminals.

Whether directly enrolled in Secure Communities or not, local law enforcement partners face local-scale consequences. In partnering with ICE to remove migrants, local officials reinforce migrants’ overall distrust in law enforcement and the criminal justice system threatens the security of communities that immigration enforcement memorandum of agreement claim to protect. If migrants fear law enforcement will discover their or relatives’ unauthorized status, it is unlikely they will report crime or cooperate with a law enforcement investigation.

Recently, internal ICE emails revealed that the agency set annual removal quotas, which were the sole performance metric for field offices. Franklin County criminal defense attorneys have noticed a marked increase in removals through docket trolling and ICE agents’ presence in the county municipal court. ICE also suggested methods for reaching these quotas, including participation in local law enforcement-run traffic checkpoints, trolling state DMV records, and assigning ICE officers to jails to find removable noncitizens.

Within Franklin County, migrants who encounter law enforcement officials may soon become removable criminal aliens. Jurisdictions in which Secure Communities is activated often face low incidence of crimes reported for fear of victims being removed after revealing their unauthorized status, or losing breadwinning family members who may be perpetrators of crimes against them. The impending threat of deportation causes fear, insecurity, and misinformation to sediment in migrant communities. Multiscalar policies and practices in Franklin County regulate migrant movement to the point of incapacitation, facilitating the identification and subsequent removal of criminal migrants from the community. Law enforcement agencies’ role in incapacitating entire migrant communities is justified by the perceived presence of criminal unauthorized migrants. One must not ignore that immigrants sometimes commit crime, but it is vital to recognize that immigration enforcement practices turn large swaths of migrant communities into removable criminal aliens.

Lauren Hines is a newly-minted MA in Geography from the Ohio State University, as well as founder and coordinator of Central Ohio Immigrant Justice, a community organization dedicated to identifying and filling gaps in resources in Columbus’ migrant and solidarity communities.

Private prisons have expanded at an astonishing rate in recent years and much of that growth can be attributed to immigration imprisonment, according to a new report by the Sentencing Project. Cody Mason, The Sentencing Project, Dollars and Detainees: The Growth of For-Profit Detention (July 2012). Thanks in large part to immigration prisoners, private prison corporations have maintained strong bottom-lines even while the economy has struggled, the report added.

The report divides immigration prisoners into two camps: those held under the direction of ICE and those under the United States Marshals Service’s control. ICE prisoners are held pending immigration proceedings and USMS prisoners are held awaiting prosecution for an immigration-related or other crime. Mason at 2-3.

In 2002, Mason reported, 4,841 INS detainees were held in private facilities. By 2010, that number had jumped to 14,814, a 206% increase. Mason at 4. For its part, USMS held 4,061 people in private facilities in 2002 and 17,154 in 2010, a 322% increase.

Today, ICE holds approximately 43% of its prisoners (13,927 on average per night in 2012) in private jails. Thanks to their contracts to house these individuals, the country’s two largest prison corporations, the Corrections Corporation of America and the GEO Group, earned 20 and 14 percent of their 2011 revenue, respectively, from ICE. Mason at 5. Plus, it can’t hurt that they’re allowed to pay immigrant prisoners as little as $1 per day for an 8-hour workday. That’s right: $1 per day for 8 hours of work. (See government documents obtained through Freedom of Information Act request.)

A few other interesting bits of information jumped out at me while reading Mason’s report: forty percent of all USMS prisoners in 2011 were detained on immigration-related charges, Mason at 3; CCA spends about $2 million lobbying legislators each year, Mason at 13; and 8 of ICE’s 10 biggest facilities are privately operated, Mason at 8.

The gist is that private immigration imprisonment is growing creating quite a lucrative market for the prison corporations.

Lauren Hines

The Secure Communities program permits federally-trained officers to scrutinize individuals booked into non-federal jails for their immigration status. The program uses shared biometric data from all enrolled Secure Communities jurisdictions as well as FBI and other federal databases to alert Immigration and Customs Enforcement (ICE) to removable migrants with criminal records. Secure Communities, however, is not the only program used for targeting migrants classified as criminal aliens for removal. Other federal-local memoranda of agreement (MOA) as well as non-federal practices and policies differentiate undesirable migrants from the rest of the population. Many local and state anti-immigrant initiatives exist to supplement the perceived ineffectiveness of federal immigration enforcement practices. These non-federal initiatives inhibit migrant social reproduction through incapacitation, which target migrants’ access to housing, education, social services, work, and free speech.

On January 19, 2010, Franklin County and Cuyahoga County became Ohio’s first two counties to voluntarily enter the Secure Communities agreement. Like many other activated Secure Communities jurisdictions, Franklin County has no other federal enforcement responsibilities. Columbus, the Franklin County seat, houses a branch of the Criminal Alien Program, as well as the USCIS Columbus Field Office and an ICE Enforcement and Removal operations sub-field office. Columbus is a diverse city with a growing migrant population, and despite several unsuccessful attempts by state legislators, Ohio has yet to pass explicitly anti-immigrant laws. In 2010, the Columbus City Council unanimously passed a resolution in favor of comprehensive immigration reform.

However, according to ICE’s Secure Communities Nationwide Interoperability Statistics Report through April 30, 2011, Franklin County had the 17th highest percentage of removals of individuals without any pending criminal records. Although the percentage of non-criminal removals from Franklin County has decreased, the program still overwhelmingly removes non-criminal migrants and low-level criminal and civil offenders.

Upon review of local policies and practices, it became clear that the central Ohio context facilitates regulating and managing migrant populations through restricting their movement. According to state law, every Ohio driver must carry proof of automobile insurance, a valid driver’s license, and automobile registration. Ohio does not issue licenses or state identification to migrants without social security numbers and stopped issuing automobile titles to people without social security numbers in 2009 through a massive policy shift. The Ohio Bureau of Motor Vehicles’ issuance of letters threatening cancellation of current titles unless their holders paid an additional fee, provided a valid Social Security Number, and requested to have their case heard before a court. On March 6, 2012, a state intermediate appellate court found in LULAC v. Governor of the State of Ohio, 2012-Ohio-947, No. 10AP-639, slip op. (Ohio Ct. App. March 6, 2012) that there was no sufficient basis in Ohio law for the mass cancellations of vehicle titles.

Migrant communities often rely on notaries who offer support in navigating unfamiliar laws and customs. Since the end of the policy granting vehicle title access to people without Social Security Numbers in 2009, local notaries have charged exorbitant fees to transfer migrants’ car titles to citizens as well as create fictitious companies with Taxpayer Identification Numbers in order to register “commercial” vehicles. Although international driver’s licenses are not state-issued identification and do not authorize their holders to drive per se, many local businesses claim to help migrants overcome barriers to driving lawfully in Ohio. Notaries and other supposed advocates often claim to provide services they are unauthorized to offer and exploit migrant communities in the process. In doing so, they foster misinformation and fail to protect their clients and communities from removal. Policing tactics perpetuate insecurity within large, newly-settled migrant communities.

Within Franklin County, immigration enforcement targets the monitoring and restriction of migrants’ movement in automobiles. Stories have circulated within migrant communities and local advocacy organizations of migrants parked at gas stations being approached by ICE agents who suddenly appear out of a black SUV with tinted windows. When migrants get ready to leave their apartment complexes in the morning to drive to work, they may find ICE agents awaiting them, asking if they have documentation to confirm their legal presence. Recently, a local organization heard from community members that ICE agents dressed in civilian clothing failed to identify themselves as such before approaching and questioning possible migrants.

Local migrant communities perceive themselves as targets of ambush tactics, and although ICE ostensibly targets convicted criminals, absconders, and migrants who were previously removed, a community leader asserts that “[ICE is] spending time in apartment complexes where these people used to live, looking for them… they never find the criminals they’re looking for and always end up finding other victims that live at those addresses.” ICE agents present an unpredictable and impending threat; they may suddenly appear to question migrants and confirm their right to be in the country. In southwest Columbus, this possibility has discouraged migrant parents from opening their front door to let their children catch the school bus. Foreseeable interaction with law enforcement also causes anxiety-based insecurity in Columbus’ migrant communities.

Predictable encounters with law enforcement officers, such as announced operating a vehicle under the influence of alcohol (OVI) checkpoints and routine traffic stops, may result in the removal of undocumented migrants. If a driver passes through a City of Columbus traffic stop and cannot provide state-issued identification matching the name on her automobile registration, the city confiscates her vehicle. The car rests in an impound lot until the title holder (or a relative) provides sufficient identification and pays a fine to recover the car.

When dealing directly with local law enforcement officers, there is more room for subjectivity than an Immigration Alien Query that transforms into an ICE hold. According to a criminal defense attorney with long-standing relations with local migrant communities, “who picks them is usually not an issue. It’s when they get put in jail that it’s a problem. Or they get fingerprinted.” The responding officer can ultimately decide whether a migrant is set on the path to removal proceedings or is free to continue without incident until stopped again:

You have police officers that are generally sympathetic to the community, and you can break them up as 1/3 sympathetic, 1/3 completely unsympathetic, and the other ones, it depends on the circumstances and how they’re feeling that particular day. …[I]t means that 1/3 of the cases, the officers are going out of their way to make sure that the individual is not identified as an undocumented.

The justification for stops that lead to a migrant’s arrest and eventual removal is highly contingent upon the officer involved. Law enforcement agencies like the Columbus Division of Police may have official directives about how to handle immigrants suspected of unlawful presence, yet this does not mean that all agents and departments will follow them. Once a person is charged with driving without a license, the arresting officer may determine that the migrant’s identification, whether lawful (such as the Mexican government-issued matrícula consular, a lawfully-obtained license from a state that issues identification to unauthorized migrants, or a notary-issued international driver’s license) or not is fraudulent. If so, a migrant faces a felony charge of identity fraud or identity theft, which prosecutors often dismiss in exchange for a guilty plea to driving without an operator’s license.

Lauren Hines is a newly-minted MA in Geography from the Ohio State University, as well as founder and coordinator of Central Ohio Immigrant Justice, a community organization dedicated to identifying and filling gaps in resources in Columbus’ migrant and solidarity communities.