Across the nation, the grim shadow of deportation hangs over millions of people. Immigrants are deeply rooted in our neighborhoods and communities, yet most must fight to stay in the country without an attorney to guide them through the deportation maze — even though their lives are often literally at stake. There is no other area of American law where we lock people up and make them fight for their liberty against trained government lawyers without assistance of an attorney. Finding ways to address this stain on the American standard of justice has taken on new urgency with the looming threat of a massive ramp up in deportations.
Three years ago, in New York City, we took a historic step to heal this grave injustice. We created the New York Immigrant Family Unity Project, which provides attorneys to immigrants who are trapped in detention and face life-altering deportation. New York City allocates more than $6 million annually to ensure that no family can have a loved one locked up and deported simply because they cannot afford an attorney. The representation is provided by city-funded immigration units housed in our public defender offices — offices that are uniquely situated to handle universal representation programs for detained clients. New York was the first city to provide this basic guarantee of due process to immigrants facing deportation. We hope San Francisco will become the second. With state legislators proposing complimentary measures in Sacramento, now is the perfect time for San Francisco to lead the way.
Now, as painful new attacks on immigrants loom from the incoming Trump Administration, it’s time for local governments across the country to stand up, stick together and take action. I was inspired to see the proposal introduced last month by San Francisco Supervisor David Campos, in coordination with the San Francisco Public Defender and community groups. This powerfully replicates the successful model that New York has established.
Many readers might think that in a proceeding with such drastic consequences as deportation, the government would already make attorneys available to provide that vital guidance to people whose liberty is at stake. Sadly, this is not the case. Immigrants, cut off from loved ones and communities, locked away in a shadowy network of detention centers and jails, have to navigate the byzantine deportation system alone, unless they can find an attorney on their own. The majority cannot.
This is literally a matter of life and death. Consider the tragic death of Erick Naum Castro Peña, an asylum seeker deported after 11 months of detention and murdered by gangs shortly thereafter. He never met a lawyer. Our experience has demonstrated that legal representation is often the difference between keeping a family together and tearing one apart.
In New York, a study I chaired found that detained immigrants have virtually no chance (3 percent) of succeeding in preventing their deportation without the assistance of counsel. But preliminary data from the NYIFUP program shows that lawyers can improve immigrants’ chances of remaining legally in the United States with their families by as much as ten fold. Yet today, more than two thirds of immigrants detained in California do not have an attorney. Many are, for all practical purposes, “lost in detention.”
Our experience in New York has demonstrated that one key to success has been the program’s ability to leverage the experience, expertise and resources of our city’s public defender offices. Implementing a public defender system in a new area of law is no small task. It would not have been possible if the exceptional defender offices in New York had not stepped up to the plate. That is why I was so heartened to see that the San Francisco Public Defender is ready to play the same key role in the program now being developed in the Bay Area.
To be sure, Trump and his supporters have used bitterly divisive and dehumanizing rhetoric about immigrants, painting some as irredeemably “bad” as they exploit isolated tragedies for political gain. Let’s be clear: The tragic act that one person is accused of must not be used to demonize entire communities. We must never lose sight of our common humanity. In these trying times, places like San Francisco must be bright beacons of hope and humanity.
Peter L. Markowitz is a professor at the Benjamin N. Cardozo School of Law and is one of the creators of the New York Immigrant Family Unity Project.