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 Honduran children Eduardo, 2, and Richi, 5, stand with their mother outside a temporary migrant shelter set up near the U.S.-Mexico border on November 20, 2018 in Tijuana, Mexico. Photo: Mario Tama/Getty Images.
 Honduran children Eduardo, 2, and Richi, 5, stand with their mother outside a temporary migrant shelter set up near the U.S.-Mexico border on November 20, 2018 in Tijuana, Mexico. Photo: Mario Tama/Getty Images.

The unfortunate middle ground of immigration law

In criminal law, defendants are guaranteed legal counsel under the Constitution, but that’s not the case in civil procedures where immigration cases fall.

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Do you remember the outrage that ensued when it was revealed migrant children were defending themselves in immigration courts? This came after finding out they were also being detained and separated from their parents along the southern border. The result was the same - outrage.

The first report broke in June 2018 and began with the story of a three-year-old girl climbing on a table in the middle of her own hearing, oblivious to the outcome and unable to grasp its ramifications.

“It really highlighted the absurdity of what we’re doing with these kids,” Lindsey Toczylowski, executive director of the Immigrant Defenders Law Center in Los Angeles, was quoted as saying at the time.

While the absurdity of separating families at the border was stopped, the plight of children representing themselves showed a fatal flaw in the immigration legal system that continues to this day. It’s been around long before the days of President Donald Trump and his beloved wall.

The root of the problem began in 1963, with the passage of Gideon v. Wainwright. The landmark Supreme Court case ruled anyone charged with a criminal offense who is too poor to afford their own legal representation must be provided an attorney by the state and also has the right to free legal counsel. In short, it created the public defenders system as we know it today.

The important point to understand from Gideon v. Wainwright through an immigration law lens is that it applies to criminal procedures, not civil ones. Criminal procedures deal with offenses against the public or society, while civil suits pertain to offenses against an individual, or other private party.

Immigration law is considered a civil procedure, meaning those appearing in immigration court do not have a right to an attorney or legal counsel. It also gives immigrants who commit crimes while on US soil more access to legal counsel than those unlucky enough to be picked up in an ICE sweep.

The only way to guarantee legal representation for immigrants subject to civil lawsuits is if they can afford it.

Finding proper legal counsel for immigration cases is difficult even if it can be afforded, but it’s especially challenging while in a detention center, where meeting times are strict for lawyers and income is often scarce for those detained.

There are many nonprofit law organizations across the country that operate pro bono or at a reduced price, but the need far outpaces the supply.

Before today’s crunch spurred by the policies of the current administration, Robert Katzmann, a judge in US Second Court of Appeals in New York, first noticed the prevalence of immigration cases proceeding without proper representation for defendants. Using his status, Katzmann pooled funds to start a study to report on the lack of representation for immigration cases in 2010.

The result of the study was the Immigration Justice Corps, one of the first organizations to offer free representation for immigrants in court, and it used grants from the government and private sector to fund its work. It spawned a movement across the country that over the last decade has expanded to six states that dedicate a portion of tax dollars to immigrant legal representation.

Progress has been made, but until the law is expanded to include a clearer definition of immigration legal procedures, problems will continue for those with the most need.

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