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Holder's ruling, though narrow, draws hope, backlash from both sides of immigration debate

by Liz Hoffman
July 06, 2009

When Rigo Padilla was arrested and charged with drunken driving in January, he met with a public defender within hours of arriving at the Cook County Criminal Courthouse. But when the federal government put the 21-year-old in deportation proceedings, where he could be ordered back to his native Mexico, he was on his own.

Padilla, who came to the United States illegally when he was seven, said he tried to get about ten lawyers to take his immigration case, with no luck.

His story illustrates the stark contrast between the nation’s criminal and immigration court systems. Criminal defendants who can’t afford their own attorney have a right to one on the government’s dime, something anyone who has seen an episode of “Law & Order” knows. But in immigration court - which is civil, not criminal - no such right exists.

Courts have consistently upheld the distinction, saying that deportation is not technically "punishment."

But a ruling from Attorney General Eric Holder earlier this month has brought the issue once again to the forefront.

On June 3, Holder overturned an 11th-hour decision from former Attorney General Michael Mukasey that said immigrants could no longer appeal their deportation by claiming their lawyer was ineffective. Mukasey had gone even further in his January ruling, saying immigrants had no constitutional right to a lawyer, let alone a good one.

Holder’s decision is narrow and simply restores a 20-year-old status quo, which granted immigrants the right to appeal based on bad legal advice.

But it has both sides debating whether illegal immigrants should have the same rights in court as accused criminals.

“The significant part of this decision is that it's the first step away from the complete abrogation of [immigrant] rights that the Bush administration had pushed,” said Charles Kuck, president of the American Immigration Lawyers Association. “If you don’t have any right to effective assistance of counsel, why even let lawyers in in the first place?”

Groups like Kuck’s have welcomed Holder’s ruling with a combination of hope and realism. While they see it as a good-faith gesture from the Obama administration, they know bolder reforms, like a public defender-style system for immigration courts, is a tough political sell.

In 2008, for instance, the federal public defender system took on more than 132,000 cases, according to the office’s annual report. This year, its budget exceeds $849 million. In comparison, the Department of Justice’s Executive Office for Immigration Review opened more than 350,000 cases in 2008. The cost of adding so many cases, or even a fraction of those cases, to the federal budget would be substantial and politically volatile.

But even so, immigrants in deportation proceedings are especially vulnerable, said Geoffrey Heeren, a senior attorney at the Legal Assistance Foundation of Metropolitan Chicago.

“You’re talking about a population that often has limited English and a limited understanding of the court system, wading into one of the most complex legal codes in the country,” he said. “These are exactly the kind of people who need a lawyer.”

Indeed, the work of a U.S. immigration judge is much more nuanced than simply ordering people in or out. Immigrants have myriad options - aside from deportation - that depend on when, how and from where they came to the United States. Throw in overlapping layers of case law, two decades of reforms, and an ever-shifting balance of power in Washington, and you get a legal system whose intricacy rivals that of the U.S. tax code.

“Due process does demand legal counsel and in some cases, government-funded counsel,” said Donald Kerwin, a senior vice president of the Migration Policy Institute, a nonpartisan think tank.

Last year, 60 percent of the people who went before immigration judges didn't have a lawyer. A 2007 Stanford Law Review study found that asylum-seekers who had a lawyer were three times more likely to win their cases than those who didn’t. No one has conducted a similar study of deportation cases to date, but experts familiar with the system say the numbers are comparable.

Legal fees for deportation or asylum cases can run into the thousands of dollars, and without a public defender system, the poorest immigrants rely largely on pro bono lawyers. Even if they can afford private counsel, the landscape is not without risks. So-called notarios, shady characters who pass themselves off as lawyers in an attempt to bilk immigrants for exorbitant fees, continue to lurk in immigrant communities.

“The stakes are high,” said Claire Trickler-McNulty a staff attorney at the ABA’s Commission on Immigration. “Due to the consequences of the [notario] problem, and the fact that immigration law is very complex, having competent counsel is critical.”

The Chicago-based National Immigrant Justice Center, which runs a pro bono network of some 1,000 lawyers, estimates half of its clients have sought disreputable legal advice before going to the center for help.

“It is a serious problem,” spokeswoman Tara Tidwell-Cullen said. “People should not be denied a fair day in court or a review of their case if they’re ordered deported as a result of bad legal advice.”

But groups that vehemently oppose illegal immigration said Holder’s ruling – and the broader push for better legal representation – is more about skirting the laws on the books than ensuring immigrants a fair shake in court.

“These endless rights to appeal – second, third and fourth bites at the apple – only serve to tie the system in knots,” said Ira Mehlman, media director for the Federation for American Immigration Reform, a hard-line immigration enforcement group. “What these lawyers are going for in these appeals is delay. The longer you can delay a deportation…the longer you get to stay.”

Holder’s ruling came down on the same day the Obama administration postponed for the fourth time a deadline for companies that do business with the federal government to verify their employee’s work papers against an immigration database – timing not lost on FAIR.

“Everything this administration has done has been to hamstring the enforcement of immigration laws,” Mehlman said. “I think their ultimate objective is to get some kind of amnesty, and moves like [Holder's decision] are a small step in that direction.”

But as groups on both sides project their hopes – and fears – onto the administration’s latest move, the three-page decision itself remains narrow. It vacated the Mukasey ruling and ordered the Department of Justice to look into rewriting its rules about appeals – a process that can take years.

“It’s a good first step,” Kerwin said. “But whether it leads to more reform or not is a different question.”