Immigrants Have No Access to Justice

Yesterday, I joined several organizations aiming to inform the U.S. government of its human rights commitments regarding access to justice .

My presentation focused on access to justice in the U.S. immigration system and was part of series of consultations the Obama administration is holding with civil and human rights groups in preparation of US government Universal Periodic Review (UPR) report which will be submitted to the UN Human Rights Council later this year.

The testimony was an opportunity to remind the U.S. government (represented in the audience by officials from several offices including the Department of Homeland Security and the Department of Justice) that for many immigrants facing deportation, the justice system is closed off.

Under the Obama administration more than two million immigrants have been deported. And last year—according to the government’s own records—more than 70 percent of them did not even have a hearing before an immigration judge. The main person reviewing whether they had the right to be in the United States was an immigration enforcement officer. In research I am conducting on this issue in the United States and in Mexico, I have found that the majority of people being deported have no idea what their rights are, what rights they are waiving, and what penalties they accept when they sign a removal order. In some places, border officials rarely ask people apprehended if they are afraid to go back to their country of origin—one of the few but essential legal requirements in place to protect people at our borders. This omission has stark consequences: some of the people we’ve interviewed have been abused, raped or kidnapped after asking for help but being deported anyway.

The people deported quickly and without a hearing include kids traveling by themselves—at great personal risk—to the United States. Last month, I spoke with 13 unaccompanied kids from ages 11 to 17 who had been deported. They talked about being yelled at and terrified in detention before signing a paper, under pressure from border officials that they didn’t understand and was never explained to them.

Even those who do receive a hearing rarely have a lawyer. Unlike in U.S. criminal court, where right to counsel is guaranteed to almost everyone regardless of ability to pay, in immigration court only immigrants who can afford them generally get lawyers. And yet the Department of Homeland Security–the agency that arrests, prosecutes and deports immigrants–is always represented in removal proceedings, even as immigrants, including children as young as three years old, are left to fend for themselves.

In the midst of this bleak situation, there are some small signs of improvement. Last year, thanks to an ACLU lawsuit, a federal court in California ordered the government to provide counsel to immigration detainees with mental disabilities. And encouragingly, the Senate immigration reform bill—endorsed by President Barack Obama—passed last year would provide appointed counsel to those with designated mental disabilities, children, and additional vulnerable immigrants. The U.S. government has made promises before on these issues but those promises have often been unkept.

The U.S. government must now fulfill its obligations by extending legal representation to all immigrants facing deportation from the United States Denying immigrants the ability to defend against deportation and have their day in court violates both international human rights and the U.S. Constitution’s right to due process.

The ACLU’s written testimony on access to justice for immigrants is available here.

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