The passage earlier this year of the controversial Arizona state law that criminalizes not carrying immigration documents and broadens local police authority to enforce immigration laws has established immigration as one of the most divisive and prominent issues in our nation. Although U.S. District Judge Susan Bolton recently enjoined some aspects of the law, the heated debate around immigration continues to raise ire in Arizona and beyond. Regardless of one’s political views, the issue — and Arizona’s law in particular — further highlight some serious flaws that have long been present in the current immigration system. And these flaws are underscored by the significant need for legal assistance in this area. Fortunately, we are seeing law firms undertaking immigration pro bono work in record numbers.
Firms have been motivated to take on more immigration cases and projects for a variety of reasons. First, there is simply more work to do in this area than ever before. In his Orison S. Marden Lecture before the New York City Bar Association in 2007, Judge Robert Katzmann of the U.S. Court of Appeals for the 2d Circuit noted that “dockets have virtually doubled in the last couple of years as a consequence of an avalanche of immigration cases.” And while demand is higher, resources are, unfortunately, fewer. Nonprofit groups that receive funding from the Legal Services Corp., for example, are barred from serving certain categories of immigrants, in turn creating a desperate need for law firm assistance. What’s more, in addition to immigrants needing assistance with deportation and asylum matters and citizenship cases, we are seeing more complex issues, more people needing help and more ways to deliver it.
Katzmann also reminded us that “a lack of access to competent legal services damages fundamental concepts of fairness and equality before the law.” Immigrants are often faced not only with lack of access, but incompetent or dishonest resources. Groups such as Human Rights Watch, Catholic Legal Immigration Network, the Legal Aid Society and the American Civil Liberties Union (ACLU) Immigration Project work to provide legal assistance — but they are increasingly strapped in their resources. As Human Rights Watch noted in its report, Costly and Unfair, “Each year [Immigration and Customs Enforcement] detains hundreds of thousands of immigrants. In 2009 ICE held between 380,000 and 442,000 people…at an annual cost of $1.7 billion. These people are not imprisoned as punishment for criminal offenses. Instead they are detained for civil immigration violations, held administratively as they wait for a court hearing or pending their deportation.”
Even as the controversial Arizona law was challenged in court by the U.S. Justice Department, and is now enjoined in part, with support from the Mexican-American Legal Defense and Education Fund, the ACLU and Munger, Tolles & Olson, the problems with the system have continued to grow. Not only are there far too few legal advocates; our immigration system is broken. A recent report done on a pro bono basis by Arnold & Porter for the American Bar Association, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases, presents 60 comprehensive recommendations for reform to the system. The report addresses the enormity of the problem, including the lack of representation and resources for immigrants at every level of the system. The mere fact that there are as many as 60 recommendations indicates a system that is truly broken — broken, but not unfixable.
NOT ONLY DEPORTATION
Immigration cases are no longer simply about deportation. There has been virtually no progress on comprehensive immigration reform, and the changes that have occurred have been piecemeal. As a nation, we are in need of some very thoughtful and far-reaching policy work on a much broader and in-depth scale. In the vacuum created by the absence of congressional action, there are an increasing number of alarming state initiatives limiting immigrants’ access to education and health care, among other things. Day labor centers are under attack and in many cases have been shuttered. Some jurisdictions have moved toward English-only education systems aimed at limiting immigrant children’s access to schools. In some cases we are even seeing citizen children of immigrants unduly penalized simply because of their parents’ status. These immigration laws affect not just the immigrants but also their families, employers, neighbors and those with whom they do business. There has been a rise in attempts to thwart and disadvantage immigrants in ways that are not only unjust but also run contrary to the principles on which our country was founded.
We are at a crossroads where immigration is the point of intersection for civil liberties law, racial discrimination and poverty law. This presents challenges, certainly, but it also offers an opportunity for collaboration in ways that haven’t been the norm. What we need to see, in the absence of sweeping policy reform, are lawyers coming together to preserve the rights of immigrants and to promote concrete change to immigration laws.
Esther Lardent is president and chief executive officer of the Pro Bono Institute.