It’s been more than 26 years since Mark Reid made his mistakes-a string of minor infractions that include drug possession.
“Being a product of my environment, I got in some minor situations,” Reid says. “I was basically doing someone a favor, and it ended up being a setup.”
Reid, who came to the United States from Jamaica 40 years ago, never even did time for those offenses-not until over 20 years after the fact, at least.
He would spend around a year in a half in a Massachusetts Immigration Customs Enforcement, (ICE) detention center between 2013 and 2014 while waiting to find out whether or not he would be deported. Far from New Haven, where he lives, Reid searched desperately for an attorney to represent him.
“You don’t have the means to provide counsel and your funds are drained,” Reid says. “It’s just an unfair situation. I reached out to so many different lawyers. I couldn’t find anyone who would take the case Pro Bono.”
Until he got in touch with Mike Wishnie, the supervising attorney for the Worker and Immigrant Rights Advocacy Clinic at the Yale University School of Law.
Reid is out of detention, but still awaiting his fate-that will be up to the Immigration Board of Appeals, which remanded an immigration judge’s ruling that denied his petition for relief under the Convention Against Torture. The case was sent back to the Immigration Court, which prompted another round of appeals with its second denial of Reid’s petition.
“I have yet to meet one person who is a danger to the U.S.,” Reid says of the time he spent in detention. “A majority of the people are long-time, legal residents who built a life [here]. Who did a minor offense, ten, fifteen years ago.”
And a majority will navigate the complex immigration legal system alone-Reid is far from being the only deportation defendant without the means to hire a lawyer.
In New York City, that majority is 60 percent, but that’s only for those detained in facilities close to home, according to a 2012 Freedom of Information Act request-compiled report released by the organizations Families for Freedom, the Immigrant Defense Project, and New York University School of Law’s Immigrant Rights Clinic. Once a defendant is transferred to any of the out-of-state immigration detention facilities-at the time of the report, detainees were being sent as far as Arizona and Colorado-the chances of them being represented in their proceedings lowers significantly.
The study found that 79 percent of those in out-of-state lockups did not have an attorney.
“It’s probably fair to extrapolate the New York cases,” Wishnie says “I don’t think there’s any reason to think it’s [the percentage of defendants with representation] higher [here] than in New York.”
Since immigrant defendants tend to be low income, the barrier is often socioeconomic, Wishnie says.
“It’s a cost factor,” he says. “Private immigration attorneys are expensive. In Connecticut, there really are no legal defense organizations that will do removal cases.”
And the cost of coming up short-for the defendant-are high, but those facing removal do not have a right to be appointed counsel.
“They still look at immigration as a civil matter, even though it has all the components of a criminal case,” Reid says.
Although the right to an attorney exists in some civil matters, deportation is not one of them. Some are trying to change that. John Pollock, a coordinator with The National Coalition for a Civil Right to Counsel, is among them.
“There’s been a question about due process,” Pollock says.
The Coalition’s work focuses not on establishing the right to counsel in all civil cases, but in legal areas where access to “human needs” are often jeopardized, and immigration is one of them, Pollock says.
Those in removal proceedings face not only being separated from their families and livelihoods, but whatever prompted them to leave their country of origin in the first place. As last summer’s influx of Central American migrants-under-aged refugees fleeing violence and poverty in their home countries-showed, the consequences can become fatal.
“When you put that all together, it’s kind of shocking that there isn’t an immigrants’ right to counsel,” Pollock says.
But in some civil matters-such as juvenile cases-a defendant has the right to be appointed counsel based on whether they are competent enough to represent themselves, says Ahilan Arulanantham, the Legal Director for the ACLU of Southern California.
That became the crux of Franco-Gonzales v. Holder, a case that Arulanantham litigated. The Supreme Court ruling in the class action lawsuit, brought by the ACLU on behalf of individuals incarcerated in California, Arizona, and Washington-based ICE facilities, establishes that immigrant detainees with mental disabilities have to be appointed an attorney in deportation proceedings.
“It’s the first time that the Federal government has appointed counsel to people in deportation proceedings,” Arulanantham said over the phone. “The fact that they’re doing that is an important shift.”
One that will-unfortunately for other immigrant detainees-have to continue one inch at a time.
“It doesn’t have a straight-forward application to other groups,” Arulanantham said. “The court didn’t say that the fact you were detained and facing deportation is enough to get you counsel.”
The ruling focuses more on the issue of discrimination-in this case, against individuals with severe mental disabilities. But which ones, specifically?
“If you have a mental disorder that is so serious that it prevents you from doing things like testifying or making legal arguments,” Arulanatham said.
So could the discrimination argument be made in addressing the cases of other types of detainees? The ACLU thinks so, but right now it is focusing more specifically on a defendant’s ability-or lack thereof-to act as their own attorney. That’s the basis of J.E.F.M. v. Holder, a case Arulanatham is litigating in Washington D.C. The ACLU lawsuit aims to establish a right to appointed counsel for children in deportation proceedings.
“The law treats children differently because they have less capacity,” he said. “I think in the future, for sure, other vulnerable groups [can make that argument]. The children are what we see as the next obvious analogy.”