Gritty North Oakland Street in Aurora doesn’t look like the kind of place where justice meets its match. But across from the self-storage and facing a row of battered warehouses, guards parade migrants into courtrooms where judges decide if they will be allowed to remain in the United States. Whether newcomers to the United States asking for asylum or green-card holders with decades in Colorado, most will not have a lawyer walk into court with them.
Unlike the criminal justice system, immigration courts in the United States don’t guarantee lawyers. People who can afford a lawyer can hire one. But except for a small number of people who are too mentally ill to defend themselves, people who can’t come up with the money are usually out of luck. In Denver, like most cities, free or low-cost legal aid is in short supply for people trying to fend off deportation, especially if they are detained.
At the Aurora private prison that holds people on behalf of the Immigration and Customs Enforcement agency, the federal government’s immigration law-enforcement unit, most migrants trying to fend off deportation are forced to stand alone in front of a judge. Three out of four of Aurora’s immigration prisoners don’t have a lawyer when their opportunity comes to ask an immigration judge for release. This is a high-stakes scene in which the government’s prosecutor lobs accusations against a person with no reason to understand the rules of courtroom battles and an immigration judge parses detailed legal codes.
Legally, this is allowed because the Aurora facility isn’t used to punish migrants. As far as the law is concerned, it’s just where the government keeps people who it doesn’t trust to show up to court or avoid trouble. But the concrete walls that surround the prison, topped with concertina wire, reveal the reality of confinement. In 2017, Colorado resident Kamyar Samimi died there after four decades in the United States. Last year, a government oversight agency revealed that employees of the private prison corporation that owns and operates the facility under contract with ICE were handcuffing people even when the agency’s rules prohibited it. A room with sky-high walls and a partially covered roof counted as outdoor recreation.
To Congress, justice for migrants held in Aurora doesn’t require lawyers. To courts, a stacked deck in legal hearings is an acceptable feature of due process. To me, this is a stain on the legitimacy of immigration law. As a lawyer, I know that a client’s path to life in the United States is often found deep in the nuances of federal laws.
As a professor, I teach students that the process courts use is as important as the laws they apply. In the years after returning from prosecuting high-ranking Nazis at Nuremberg, I remind them, Justice Robert Jackson wrote, “due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice.” Supporting people who are facing life-altering legal problems helps all of us because high-stakes decisions should only result from fair processes.
Fortunately, alternative paths exist. From Dallas to New York, lopsided justice has become intolerable. Instead of sending migrants into immigration courtrooms with the legal equivalent of a blindfold, roughly three dozen communities in sixteen states use local money to boost the quality of justice. Since 2018, Denver has been among them. With the support of Denver taxpayers and private donors, local nonprofits, including the University of Denver, where I work, have helped migrants navigate immigration laws.
In this moment of exceptional trauma when ordinary people carry extraordinary burdens, funding immigrant defense remains necessary. I’m proud to live in a community committed to improving the quality of justice in our immigration courts.
A version of this article was first published in the Denver Post on September 25, 2020.