Immigration, Public Interest

Immigration Rights Group Fighting Back Against DOJ Threats

Bi-partisan opposition mounts against efforts to hinder access to justice.

By  
on

Even in these politically divisive times, party lines tend to disappear when the issue is access to justice for the poor and powerless. Protecting access to the judicial branch of our government is tantamount to protecting a cornerstone of our democracy. So when such a basic precept of American values is trampled on, good people stand up from all over the political map.

When the President’s budget was unveiled, calling for the elimination of the Legal Services Corporation, the proposal was met with a bipartisan display of opposition. Lawyers from around the country, crossing all aisles and party lines, have stood up in protest. The leaders of more than 165 law firms signed a letter to Congress urging bi-partisan support of LSC, explaining how important the programs are to our system of justice, how the pro bono efforts of their law firms are dependent on a strong legal aid system, and what a smart economic investment it is to support LSC-funded, and other legal aid, organizations. Additionally, 185 leaders of some of the largest corporate legal departments in the United States similarly sent to Congress a strong message of support for legal aid. All of these lawyers, regardless of their politics, understand the critical, life-saving impact that access to justice has on all people in need of the protections only the judiciary can provide.

Last month saw the quiet emergence of another, less understood, effort to block access to justice. While not as simple as eliminating funding, it is no less disruptive and no less dangerous a threat to fairness and democracy. Several weeks ago the federal government instructed a legal aid organization to “cease and desist” from advising immigrant clients in particularly defined situations.

It is not news that immigrant communities are frightened. Yet at this moment of heightened fear, the federal government has begun to restrict access to the justice system for some of those who need it most. Whether you agree with the nation’s immigrations laws or not, many people who are living and working in the U.S. without documentation, including many children who escaped violence and death in their home countries, have the right, under those laws, to remain in this country, safe and secure in the promises of our democracy. But without an attorney, those laws will never work for them, those promises will be shattered.

The Executive Office of Immigration Review has told the Northwest Immigrant Rights Project to stop providing certain types of legal information and advice to low-income immigrants. In other words, the federal government is shutting off many of those needy immigrants from the legal advice they need to survive, closing the door to the rule of the law that can save their lives. EOIR argues that legal services organizations must provide full representation to each client or provide no assistance at all. The office has issued an order that would prohibit NWIRP from providing limited scope advice and guidance to thousands of immigrants who otherwise have no means of seeking any sort of assistance.

Every legal aid organization in the country is financially strapped. Funding is sufficient to serve barely a fraction of the immigrant families facing removal, regardless of the merits of their claims. The only way to even begin to provide any kind of meaningful help amid this tidal wave of need is to offer advice, information, consultation, drafts of pleadings, guide-maps for what to expect in court, and other types of limited scope services. Tens of thousands of immigrants depend on this system of service delivery, without which they would be bowled over, knocked down, and unable to proceed. To stretch their resources, legal aid organizations leverage their own expertise and oversight through the use of pro bono attorneys. These volunteers, under the supervision of the legal services experts, assist with intake interviews and help to staff numerous clinics, they evaluate legal claims and provide information needed to seek relief, and they educate immigrants about their rights under the law. The result is a much-needed maximization of limited resources.

Keeping in mind that there is no right to appointed counsel when facing deportation, and that immigration proceedings are among the most complex in our judicial system, it is not hard to accept the reality that, statistically, immigrants are far more likely to prevail on the merits of their claims if they are represented by counsel, or at least have some quantum of legal guidance. So when EOIR recently instructed NWIRP to cease and desist from providing anything less than full representation to its immigrants clients, the government effectively was depriving thousands of immigrants from receiving any kind of much-needed help. Legal aid organizations simply do not have the resources to provide a lawyer to fully litigate every case presented by every immigrant client. Consequently, tens of thousands will no longer get any help whatsoever.

Sponsored

Thankfully, the U.S. District Court in Seattle issued a temporary restraining order prohibiting the government from enforcing its very harmful edict. EOIR based its cease-and-desist order on a 2008 rule exposing an attorney to disciplinary action if the attorney provides anything less than full representation once engaged in even the “practice or preparation” of the facts or law of an immigration case. NWIRP argues that this prohibition on providing limited scope services to help immigrants navigate the complexity of the immigration court violates the First Amendment in that it impermissibly interferes with the organization’s right to advocate on behalf of, speak for, and vindicate the position of its individual clients. If the EOIR mandate is allowed to stand, NWIRP and other similar organizations could not interview asylum seekers and advise them of their rights. Legal aid entities could not review pleadings and advise self-represented litigants about the grounds for deportation being asserted against them. They could not review prior proceedings and advise families about what to do next. And desperate, confused immigrants, with nowhere to turn, would be driven into the arms of fraudulent practitioners preying on the fears of a community in distress.

The lawyers for NWIRP now are preparing for proceedings on their request for a permanent injunction. As with the support lined-up to combat budget cuts, legal aid and private pro bono lawyers and law firms are putting party politics aside and rallying to the side of the organization. Lawyers from across the country are lining up to help in whatever way the lawyers for NWIRP require. All of those lawyers believe this rule would adversely impact low-income clients by denying them access to valuable services. Further, it likely would result in many pro bono attorneys having little choice but to stop providing much-needed limited types of assistance, meaning they no longer would provide any assistance at all.

Many law firms devote thousands of hours of advice to immigrants, either by engaging in full scope representation, assisting at intake clinics, evaluating cases, reviewing documents, or providing information. These dedicated volunteer attorneys generally cannot fully represent everyone who comes to a clinic. The unfortunate result of the EOIR order would be to bring the availability of many valuable services to an immediate and harmful halt. So many people would suffer, as would a cornerstone of our democracy.

Earlier: DOJ Threatens Immigration Rights Lawyers, Demands They Drop Their Clients

Sponsored

David LashDavid A. Lash serves as Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP. He can be reached at dlash@omm.com. The opinions expressed are his alone.

Topics

, , , , , , ,