Immigration, Small Law Firms

Administration’s Plan To Expedite Immigrant Hearings Opens The Door To Address Right To Counsel In Immigration

This new docketing system allows us to think about solutions that could eventually pave the way for a national legal aid program for vulnerable immigrants.

By  
on

Last month, the U.S. departments of Homeland Security and Justice jointly announced the creation of a dedicated docket process to make immigration hearings more expeditious. Specifically, the plan is to establish a fairer and more efficient system for families arriving at the southwest border of the United States. The new process is aimed at reducing the time it takes to adjudicate cases, so families aren’t caught in an endless backlog.

This process will apply to immigrants arriving on or after May 28, 2021, who are placed in removal proceedings and are enrolled in a U.S. Immigration and Customs Enforcement program known as Alternatives to Detention (ATD). Homeland Security, Justice, and the Executive Office for Immigration Review (EOIR), which make up the immigration court system, will work together to refer families to pro bono legal services for possible legal representation. Ten cities across the country have been selected for this program, including Seattle, where I live.

Not much else has been shared about this new process, so those of us on the ground are not necessarily clear on the actions to follow. And although I do not practice immigration removal defense, the past four years have given me a crash course in organizing and finding solutions for our local communities whose members need legal representation.

This new process announced by DOJ and DHS sounds like it will need a local solution.

But there are challenges to that. The supply of experienced immigration lawyers offering pro bono services has steadily declined over the past four years and is now lower than it has ever been. In my book, “Legal Heroes in the Trump Era,” I explore some of the reasons why.

In sum, the Trump administration depleted resources, energy, and time by orchestrating one crisis after another within the immigration system. Working with a team of lawyers here in the Seattle area, we began looking for ways to address the mounting problems.

Sponsored

To create sustainable solutions for detained trials and large-scale legal clinics in Washington state, we created the Washington Immigrant Defense Network (WIDEN) and stipended legal clinics. In the WIDEN model, seasoned immigration lawyers provide training and guidance to  nonimmigration lawyers, while representing detained immigrants in trial.

New problems require new and creative solutions. And with momentum for delivering efficient processing times, we need to look at the capacity on the ground in each state to see who can offer help. A one-size-fits-all measure may or may not work. But I know from the experience of having run a law firm for over a decade that people hear what they want to hear. And if the administration says it will “refer families to pro bono legal service providers for possible representation” — there will be an expectation of pro bono services.

But let’s be clear: there is no right to counsel in immigration court. Too often, immigrants and their families can’t afford legal services. The issue has been hard fought for decades by many advocates, such as the Northwest Immigrant Rights Project (NWIRP), which provides services to immigrants, including detainees; the Vera Institute of Justice, a nonprofit research and policy organization; and many others. The comprehensive immigration reform bill that was introduced in February 2021 has some reasonable provisions for a right to counsel program, but the future of the bill seems, at best, uncertain. This new, dedicated docketing system allows us to think about and consider solutions that could eventually pave the way for a national legal aid program for vulnerable immigrants.

But the problem is profoundly deep and complicated.

The announcement states that the new system will apply to eligible newcomers only and cases must be concluded within 300 days of the master calendar hearing. While that’s a good start to demonstrate the administration is trying to find solutions, it unveils another set of problems. As of December 2020, for example, there were 1.3 million cases in the immigration court system. TRAC, a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University, reported that at the time Donald Trump assumed office, 542,411 people had deportation cases pending in immigration courts. By the start of 2021, that number had ballooned to 1,290,766 — nearly 2 1/2 times the level from four years earlier.

Sponsored

The report further states: “Waiting in the wings are another 300,000+ cases that President Trump’s policy changes have decided aren’t finally resolved, but have not yet been placed back on the active docket.”

Therefore, a new effort focused only on newcomers will not make a dent in the problem. But we can use this moment to problem solve and create a workable system that can be the foundation for all the cases in the backlog, as well as for the future.

While I don’t think I have the perfect fix right now, this complex problem must start with extensive dialogue among all stakeholders. The administration must collaborate with local service providers and experienced immigration lawyers, especially the American Immigration Lawyers Association (AILA), to ensure we can develop a sustainable solution — one that can help us achieve that long-sought goal of a right to legal counsel in immigration. Let us not waste this critical opportunity to usher in long-awaited change.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.

Topics

, , ,