{"id":10488,"date":"2017-03-31T17:43:09","date_gmt":"2017-03-31T21:43:09","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10488"},"modified":"2017-03-31T17:45:48","modified_gmt":"2017-03-31T21:45:48","slug":"access-to-justice-in-the-new-era-of-immigration-enforcement","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/access-to-justice-in-the-new-era-of-immigration-enforcement\/","title":{"rendered":"Access to Justice in the New Era of Immigration Enforcement"},"content":{"rendered":"

Last month, in a case<\/a> that made nationwide news<\/a>, an undocumented transgender woman went to an El Paso courthouse to seek a protective order against her ex-boyfriend. A few hours later the woman, identified in court documents as Irvin Gonz\u00e1lez, left that same courthouse in the custody of Immigration and Customs Enforcement (ICE) agents.<\/p>\n

Gonz\u00e1lez\u2019s arrest was one of at least 680<\/a> that ICE made that week, largely in coordinated raids. The raids took place just weeks after President Trump issued two immigration-related executive orders, one<\/a> directing the executive branch to move forward with building his long<\/a>–promised<\/a> border wall and aggressively pursue detentions and deportations, and the other<\/a> ordering federal funds to be withheld from sanctuary cities<\/a>. While the Department of Homeland Security (DHS) has claimed<\/a> that these raids were \u201croutine,\u201d ICE\u2019s recent practices are notable both for the number of people arrested in such a short time and for the fact that ICE has been making \u201ccollateral arrests\u201d during raids, detaining undocumented immigrants who happen to be present regardless of whether ICE has an outstanding warrant. El Paso County Attorney Jo Anne Bernal called<\/a> Gonz\u00e1lez\u2019s case \u201cunprecedented\u201d and warned of the chilling effect even \u201cone isolated incident like this\u201d could have on undocumented victims of crime.[1]<\/a> According to Bernal and to Gonz\u00e1lez herself, ICE agents may have acted on a tip from Gonz\u00e1lez\u2019s alleged abuser<\/a>.<\/p>\n

Gonz\u00e1lez is not unique in this regard. Threatening to call immigration enforcement is a common tactic of abusers when the partner experiencing abuse is undocumented or otherwise vulnerable to deportation or immigration detention. [2]<\/a> Such threats can deter domestic abuse survivors from reporting the abuse or attempting to seek assistance.[3]<\/a> What\u2019s more, using the threat of ICE to coerce vulnerable people is not limited to the context of intimate partner violence: employers can use ICE raids to intimidate undocumented, often low-wage employees.[4]<\/a><\/p>\n

The chilling effect that Bernal warned of is already becoming apparent. Denver City Attorney Kristin Bronson revealed<\/a> last week that four women, complainants in pending domestic abuse cases, decided not to pursue their cases because they feared deportation. In multiple cities, including Denver<\/a> and Los Angeles<\/a>, ICE has adopted the practice of waiting in or near courthouses and detaining undocumented individuals who have cases scheduled to be heard. As a result, civil litigants and crime victims \u2014 including victims of domestic abuse, tenants fighting evictions or attempting to force their landlords to remedy poor conditions, and employees seeking damages for wage theft, among others \u2014 are being forced to choose between leaving their rights un-vindicated or risking deportation.<\/p>\n

What is more, many civil litigants, especially those who are both undocumented and poor, face this choice without the aid of counsel. In a 2009 report<\/a>, the Legal Services Corporation (LSC), which was created by Congress in 1974 to fund civil legal aid, found that low-income people across multiple states received assistance from a legal aid or private pro bono attorney for less than one out of five of the legal problems they faced.[5]<\/a>, [6]<\/a><\/p>\n

[1]<\/a> It will likely become much harder for indigent litigants to access civil legal aid under the Trump administration: the administration\u2019s proposed budget would eliminate LSC funding entirely<\/a>, which could force LSC-funded legal services organizations to downsize, scramble for other sources of money, or shut down entirely.<\/p>\n

While counsel is guaranteed to indigent individuals in criminal cases under Gideon v. Wainwright<\/em>,[7]<\/a> the Supreme Court declined to find a corresponding due process right in civil cases.[8]<\/a> Several lower courts have also refused to accord a right to state-provided counsel to individuals facing deportation in removal proceedings, given that immigration is legally treated as a civil matter.[9]<\/a> Similarly, although criminal defense attorneys are required to at least notify their clients when a conviction or guilty plea could have immigration-related consequences,[10]<\/a> counsel in civil cases are not required to provide immigration-related advice when litigating an unrelated issue. Historically, it would have made little sense to require immigration consultations in the majority of civil cases, as those cases were unlikely to implicate immigration issues. In contrast, in the criminal justice arena, a growing number of offenses can qualify a non-citizen defendant for deportation and have given rise to an extensive \u201ccrimmigration\u201d system<\/a>. But civil statutes and regulations pertaining to domestic law, housing, and employment do not on their face contemplate deportation or removal proceedings as a consequence of the lawsuit.<\/p>\n

Yet now civil litigants risk detention by ICE and deportation as a consequence of merely being physically present at a courthouse. And courts, legal aid providers, and state legislatures have an obligation to respond to this added access-to-justice threat from a federal government apparently bent on pursuing an increasingly draconian immigration .<\/p>\n

[1]<\/a> The White House\u2019s stance on immigration enforcement has also met opposition from the local police and city attorney; the Los Angeles Police Department (LAPD) asserts that when ICE agents represent themselves as police, they contribute to a breakdown of trust between the LAPD, which follows a policy of not initiating contact with city residents to ascertain immigration status, and local communities. See<\/em> https:\/\/journals.law.harvard.edu\/crcl\/who-are-the-cops-the-semantic-fight-between-local-and-federal-law-enforcement\/<\/a>.<\/p>\n

[2]<\/a> See, e.g.<\/em>, Anita Raj & Jay Silverman, The Roles of Culture, Context, and Legal Immigration Status on Intimate Partner Violence<\/em>, 8 Violence Against Women 367, 385 (2002).<\/p>\n

[3]<\/a> Angelica S. Reina, Brenda J. Lohman & Marta Mar\u00eda Maldonado, \u201cHe Said They\u2019d Deport Me\u201d: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants<\/em>, 29 J. Interpersonal Violence 593, 600\u2013601 (2013).<\/p>\n

[4]<\/a> See<\/em> ACLU, ICE Worksite Enforcement: Up to the Job?<\/em>, Statement submitted to the House Judiciary Committee on Immigration Policy and Enforcement, 8 (Jan. 26, 2011), https:\/\/www.aclu.org\/files\/assets\/ACLU_Statement_re_Worksite_Enforcement.pdf<\/a>.<\/p>\n

[5]<\/a> Legal Services Corporation, Documenting the Justice Gap in America<\/em>, 17 (2007).<\/p>\n

[6]<\/a> It will likely become much harder for indigent litigants to access civil legal aid under the Trump administration: the administration\u2019s proposed budget would eliminate LSC funding entirely<\/a>, which could force LSC-funded legal services organizations to downsize, scramble for other sources of money, or shut down entirely.<\/p>\n

[7]<\/a> 372 U.S. 335, 344 (1963).<\/p>\n

[8]<\/a> Lassiter v. Dep\u2019t of Soc. Servs.<\/em>, 452 U.S. 18, 31\u201332 (1981).<\/p>\n

[9]<\/a> See, e.g.<\/em>, Romero v. U.S. INS<\/em>, 399 F.3d 109, 112 (2d Cir. 2005); Al Khouri v. Ashcroft<\/em>, 362 F.3d 461, 464 (8th Cir. 2004); Tang v. Ashcroft<\/em>, 354 F.3d 1192, 1196 (10th Cir. 2003).<\/p>\n

[10]<\/a> Padilla v. Kentucky<\/em>, 559 U.S. 356, 369 (2010).<\/p>\n","protected":false},"excerpt":{"rendered":"

Last month, in a case that made nationwide news, an undocumented transgender woman went to an El Paso courthouse to 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