Thursday, February 20, 2014

An Obvious Truth: An Argument for Public Defenders in Immigration Court

Guest Blogger: Lauren Schweizer, third-year law student, University of San Francisco:

Just over 50 years ago, the United States Supreme Court granted the right to every indigent criminal defendant, citizen or not, to have the benefit of a public defender.  Writing for the majority, Justice Black stated, “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth.” [Gideon v. Wainwright (1963) 372 U.S. 335, 344.] In the criminal context, it has proven to be an obvious truth.  It is proving to be an obvious truth in the immigration context as well. 

Practically, it is understandable that immigration public defenders do not exist. Public defenders are dreadfully overworked just handling criminal matters, and it would be politically unpopular to create new offices of immigration public defenders on the taxpayers' dollar.  But immigration is one of the most complex and fact specific areas of the law; a good argument could change everything. 

The E-Verify system is an example of how public defenders can make a difference.  E-Verify has many critics with valid concerns about its accuracy.  Plenty of cases have occurred where it has misidentified citizens or valid visa holders.  A program with terrible accuracy would have no credibility after a public defender argued it.  The flaws of the system would be exposed, and to be reliable, E-Verify would have to either vastly improve or be forgotten.  Compare E-Verify to breathalyzers.  If a breathalyzer is functioning fine, but officers missed a maintenance, the public defender will expose it and the readings will have no credibility.  The breathalyzer could have been inaccurate.  In the immigration context, E-Verify is inaccurate.  However, it is touted as a "guilty until proven innocent" mechanism that is relied upon by immigration officials.  That is wrong, and a public defender would have no trouble saying so. 

Another example is the Criminal Alien Removal Initiative (CARI) in New Orleans.  The New Orleans Workers’ Center for Racial Justice released a report in December 2013 that chronicles how CARI plays out in the community.   CARI involves “indiscriminate community raids at apartment complexes, grocery stores, Laundromats, Bible study groups, and parks based purely on racial profiling.”   In one raid, the officer said that he profiled a driver because he was Latino and driving an old car.   A public defender would take that statement and run.  A public defender would shred that officer on cross for making that statement.  But there is no public defender, and there is presumably no cross.  So why should an officer behave any differently?  If the detainee has rights, no one is advocating for them in court.  It is clear from each case discussed in the report that the officers know that there is no check on the system, and that there are no consequences for treating people badly.  A public defender would change that perception. 

The Secure Communities program cries out for attention from public defenders.  Secure Communities, or S-Comm, purports to deport “priority” criminal offenders that commit serious crimes.   But in practice, detainees with minor offenses, such as shoplifting or traffic violations, are the ones being deported in record numbers.   If public defenders were involved, pressure would invariably be placed on prosecutors to file with discretion, and only move forward with deportation for serious offenders. 

It is an obvious truth that immigration law needs public defenders of its own.  Otherwise there is no check on these egregious tactics that are terrorizing communities. 


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