House Considers Immigrant Legal Defense Fund

An Immigration and Custom Enforcement Officer arresting a man in a white shirt
On Aug. 7, Immigration and Customs Enforcement coordinated the largest-ever single-state worksite immigration operation, arresting nearly 700 workers in Mississippi. / LAW WEEK FILE

The right to an attorney is a fundamental aspect of American criminal law, but in civil law — and in immigration court — no such right exists for the defendants whose cases sometimes result in detainment lasting months or years. Lawmakers are now considering a bill that could create a statewide fund to sponsor legal representation within specific qualifications for everyone.

The bill would create the immigration legal defense fund, which would allow the Department of Human Services, serving as administrator, to award grants from the fund to qualifying nonprofits providing legal advice, counseling and representation for indigent clients in immigration proceedings. It also provides funds for translation services and other support aspects of immigration law.

“Bottom line is that people who are going through an immigration proceeding deserve representation, no matter who they are,” said Rep. Naquetta Ricks, D-Aurora, one House sponsor of the bill. She said she felt that without representation, there is an equity issue for people of all ages, not just adults.

The fund, created within the state’s treasury, would administer funding to qualifying organizations representing indigent individuals, according to the bill text. These funding grants will go to nonprofits representing indigent individuals appearing before immigration court within the state, who lack private counsel.

“One thing that becomes very apparent in all legal proceedings, if you’re a lawyer particularly, is the difference it makes when you have legal representation versus no legal representation,” bill co-sponsor Rep. Kerry Tipper, D-Lakewood, said.

“It’s important for folks to remember that deportation proceedings are adversarial,” said Raquel Lane-Arellano, political manager for the Colorado Immigrant Rights Coalition, a statewide group of immigrant, faith, labor, youth, community and business groups focused on improving immigrant lives. CIRC is one of the organizations lobbying in support the bill. No groups are listed as of March 18 in opposition to the bill.

She added that the government has a legal expert working in immigration cases against a defendant, and the immigrants representing themselves without a lawyer would likely qualify for relief but have no idea those options exist or how to obtain them because of the complexity of immigration law.

According to Transactional Records Access Clearinghouse data, 70% of immigrants detained in Aurora face deportation hearings without a lawyer. Between 2007 and 2012, only 5% of all immigration cases were successful without attorney.

One noteworthy aspect of the bill text is in section 4 (a), which states that any organization receiving funding will provide representation, also known as universal representation, on “all legal matters necessary for protection from removal and detention … and shall accept cases without regard to the indigent client’s likelihood of success or eligibility for immigration relief.”

“We’re trying to mimic the public defender system here in Colorado,” Ricks said.

Tipper said this kind of merits-blind approach was key because cases shouldn’t be chosen for being straight-forward or “easy.” She added that she saw the bill as being a key step in moving to address disparities in immigration issues.

Regardless of the outcome, and whether that person stays or leaves the U.S., Tipper said she felt there’s tremendous value to that individual, their families and their employer by having a lawyer walking through the process with and advising them. For example, a person might be able to negotiate the conditions surrounding their removal from the country.

“Overall, the idea is that it’s efficient for the judicial system, it’s the most humane and fair way to deal with these cases, and it’s a net gain across our communities,” Tipper said.

For an organization to qualify for the fund, the bill requires the group to be a tax-exempt nonprofit with a physical business location in the state and obtain more that 35% of funding from other sources than the proposed fund. The bill also requires organizations to use grant money to provide services within six months of receiving funding.

The bill demands that any nonprofit applying for funding have on staff an attorney with a minimum of three years’ experience and expertise providing legal representation to indigent clients in civil immigration proceedings. However, groups that partners with a nonprofit legal service provider with the same experience may also apply.

Nonprofits receiving a grant can use the funds for legal representation in the federal immigration court in the state and before the Board of Immigration Appeals — however, it does not include representation before a U.S. District Court, Circuit Court of Appeals or the U.S. Supreme Court on appeal, according to the bill text.

The bill offers support to asylum seekers. Each applicant to the fund is required to produce a report including some information on clients served by the fund, including the case outcome, detainment status, and whether the case is removal, asylum, adjustment of status or work authorization.

“For people who are escaping famines, escaping political unrest, coming because of war and other atrocities, this legal defense fund sets them up for their day in court with legal representation, and I think that’s important,” Ricks said. Ricks said she has personal experience with the asylum system. She left Liberia as a teenager after the government was overthrown. She said she watched as her mother was held at gunpoint as coup plotters tried to find her fiancé, who at the time was an official in the toppling government. Her family survived, but had to flee, and eventually reached the U.S.. Her mother faced the immigration system alone, Ricks said. Despite having newspaper clippings describing the situation facing herself and her family, she was unable to prove her case in court.

The grants would also be available for representation before an immigration agency necessary to protect the interests of the client from removal or civil immigration detention, including custody redetermination proceedings, reinstatement of removal proceedings, withholding-only proceedings, request for release from civil detention or application for ancillary relief from removal, according to the bill text.

The grants can also cover litigation expenses, including application fees, interpretation and translation costs, as well as medical or psychological evaluations, expert fees, andoverhead expenses, according to the bill text.

In addition, the administrator must award 70% of the money allocated to organizations serving clients detained in U.S. Department of Homeland Security custody for deportation proceedings. The other 30% of the money is allocated to organizations serving clients who are not detained.

Two-thirds of the money for organizations serving non-detained indigent clients would have to be used for in-person legal services outside of the Denver Metro area, unless there are no qualifying applicants..

Lane-Arellano said this bill is important to CIRC members statewide.

“Without a lawyer, we’re putting people up against an unwinnable situation,” she said.

Lane-Arellano said she feels that the creation of a fund at a statewide level is key, because many communities do not have the ability to provide the support immigrants need. “There’s a real gap in legal resources across the state,” she said, adding that living in certain areas might mean there is only one, if any, immigration lawyers in an entire geographic area.

“People who are seeking asylum or going through court proceedings, they don’t leave the human rights behind when they cross the border,” Ricks said.

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