Fighting for Help on Their Day in Immigration Court

On Sept. 20, immigration attorney Ahilan Arulanantham got some deeply disappointing news. After two years of litigation that Arulanantham had led, the 9th U.S. Circuit Court of Appeals ruled that children in immigration proceedings cannot sue the government to have a lawyer represent them in deportation proceedings.

“The courthouse door is basically closed for thousands of unrepresented children,” Arulanantham told TakePart. “It’s wrong, legally, and it’s deeply unjust.”

The loss was devastating. As the legal director and director of advocacy at the American Civil Liberties Union of Southern California, he has spent years filing lawsuits to ensure that immigrant adults and children have legal representation during deportation proceedings.

The day before the loss, he received a phone call from Chicago: It was the MacArthur Foundation calling to let him know he was one of 23 people selected to receive a $625,000, no-strings-attached grant to continue his work on immigration issues. The MacArthur Fellows Program isn’t one that recipients apply to; grantees are taken by surprise when they win the prestigious award. Getting the news about the court's ruling so soon after the award was “an emotional whipsaw, unlike anything I’ve experienced in my life,” said Arulanantham.

Unlike criminal defendants, immigrants facing deportation, which is a civil proceeding, do not have a constitutional right to an attorney. While a trained attorney represents the government in each case, unless immigrants can afford to hire a lawyer or are granted access to a limited number of available nonprofit or pro bono lawyers, they’re at a significant disadvantage. Nationally, only 37 percent of immigrants secured legal representation in 1.2 million deportation cases between 2007 and 2012, according to a report released Wednesday by the American Immigration Council. Data like this illustrate why Arulanantham is dedicated to preventing the forceful return of adults and children to their home countries, where poverty and violence can be endemic.

“Deportation is a drastic consequence that can change someone’s life,” Ingrid Eagly, the report’s lead author, told TakePart. “If you look at everyone who applied for relief [in deportation proceedings] over a six-year period, only 2 percent won. It’s essentially impossible.”

Eagly and her coauthor, Steven Shafer, found that for immigrants in detention, securing counsel was even less likely. Only 14 percent of detained immigrants in their six-year survey had lawyers, compared with the 37 percent that includes those not in detention. Having a lawyer was associated with more favorable outcomes at every phase of immigration proceedings, from bail determination to applying for asylum to release.

While Arulanantham and his legal team intend to seek a rehearing of the 9th Circuit’s decision, he isn’t optimistic. Instead, he intends to focus most of his efforts on the Obama administration.

“Unlike so many other things in Washington, this does not require legislation or an executive order,” he said. “There’s nothing stopping the Obama administration from agreeing to not go forward against children who don’t have attorneys or expanding their government counsel program.”

In the absence of executive-level action, some states and local jurisdictions have taken other measures to protect immigrants tangled up in legal proceedings. On Wednesday, Gov. Jerry Brown of California signed into law an act that makes the rights of immigrants in civil or criminal proceedings more transparent. In particular, the law requires immigrants be informed of their right to obtain an attorney before they are interrogated by federal officials or law enforcement—much like citizens being read their Miranda rights during an arrest. While the law doesn’t guarantee access to counsel, Eagly and Arulanantham see it as an important step toward ensuring that basic procedural protections for immigrants are enforced.

“These state and local legislative efforts are extremely important because they reflect that immigrants really are part of the community, and they are to be given the basic standard of constitutional and due process protections,” said Eagly.

For Arulanantham, the work is personal. His parents left Sri Lanka for the U.S. before his birth so he and his brother could have a more stable life. When he was 10, war broke out in Sri Lanka, and members of his extended family were targeted with violence because they were members of the minority Tamil community. Most of them fled the country and wound up staying with his family in California, sometimes for years.

At one point, Arulanantham was sharing his home with 16 displaced family members. He told TakePart he remembers observing legal situations among his cousins and other community members similar to those he frequently sees today, as an increasing number of unaccompanied Central American children have migrated to the U.S. to escape violence in Guatemala, Honduras, and El Salvador.

“I feel the unfairness of how we treat refugee children particularly sharply because of my own experience,” he said. “It doesn’t take a genius to figure out that a 10-year-old presenting a complex asylum claim after fleeing violence in some of the most dangerous countries on Earth needs a lawyer.”