Excerpted From: Angélica Cházaro, Due Process Deportations, 98 New York University Law Review 407 (May 2023) (373 Footnotes) (Full Document)


angelicachazaroIn pro-immigrant legal circles, supporting government-funded counsel for immigrants has become common sense, with foundations, scholars, advocacy organizations, immigrant legal service providers, *409 and politicians embracing the push to expand access to counsel for those facing deportation. Responding to the misery the Trump administration's policies generated for immigrant communities, cities and states across the country created immigrant defense funds, providing legal services for those facing formal removal proceedings. While noncitizens have the right to be represented by counsel in immigration court, they must either pay counsel or secure pro bono counsel, as there is no right to government-funded lawyers in civil immigration proceedings. During the Trump years, however, local governments stepped in to fill this gap, funding the defense of those who faced the sharpest edges of the mass deportation regime.

The call for funding counsel for immigrants during the Trump era pushed back against what was widely considered by pro-immigrant advocates to be a presidential administration functioning on the edges and often outside the boundaries of what is lawful and just. With the *410 call continuing in the post-Trump era, it also represents a positive vision of what many legal advocates feel is owed to all immigrants--a world in which every immigrant has a day in court to meaningfully make their case for avoiding deportation. Calls have coalesced around a demand for federally funded counsel for immigrants facing removal proceedings, with advocates painting the current immigrant defense funds bankrolled by state and local governments as a steppingstone to federal funding. It is not difficult to make the case for “universal representation” of immigrants facing removal. Simply put, individual immigrants can present a stronger case for avoiding deportation if they have lawyers. Beyond the implications for outcomes, advocates argue that immigrants' access to counsel bolsters the United States' commitment to due process and the rule of law.

But what do immigrants actually win if advocates succeed in achieving federally funded counsel for immigrants? This article offers a critical intervention, questioning the short- and long-term consequences of pursuing and winning this particular reform. There is no doubt that achieving federally funded counsel for immigrants would improve individual outcomes for thousands of people facing deportation. Lawyers can help win many battles. But for immigrant communities, what does it mean to win the war? If the goal of movements for *411 immigrant justice is guaranteeing a deportation process for immigrants that more closely comports with notions of due process and the rule of law, then federally funded counsel for immigrants is the right reform to pursue. Improving immigration adjudication procedures through federally funded counsel would improve the integrity of the mass deportation regime. But what if “winning the war” instead means dismantling the deportation regime and the very conditions that subject communities to deportation at the outset? This could mean closing detention centers, slashing the budgets of Immigration and Customs Enforcement and Customs and Border Protection, and ending the surveillance and arrest of immigrant communities. This alternative vision raises questions about whether federally funded counsel is actually the most strategic reform to pursue. What follows is not an argument against immigration lawyering in defense of people facing deportation. Rather, it is an invitation to consider the tensions between the fight for federally funded counsel for immigrants and the fight to dismantle the mass deportation regime.

A discussion about the value of federally funded counsel for immigrants requires understanding the broader landscape of immigration enforcement. This landscape is not just background reading--it provides key context for considering the impact federally funded counsel would have on the continued functioning of the mass deportation regime. To this end, Part I describes immigration court, formal removal proceedings, existing representation programs (including those currently funded by the federal government), and the actors pushing the demand for federally funded counsel. Part II zooms out from formal removal proceedings to the wider frame of expulsions, utilizing existing literature on forms of deportation happening far from any courtroom and thus insulated from the potential aid of any federally funded counsel. This exploration reveals that federally funded counsel is nowhere near a “universal” reform (despite advocates' stated goal of “universal representation”) given that the majority of immigrants are expelled without ever entering a courtroom. After exploring those forms of deportation that are essentially attorney-free by design, Part II focuses on factors that influence outcomes *412 (as much or more than having an attorney) for those immigrants who do make it to immigration court.

With immigration enforcement infrastructure at an all-time high, advocates claim federally funded counsel for immigrants should reduce harm to those caught in the mass deportation web. Part III undermines this claim by examining the ways federally funded counsel may ultimately serve as a cover for the continued expansion of immigration enforcement. This examination leads to the conclusion that there is nothing inconsistent between an expanding federally funded counsel substructure and a burgeoning mass deportation regime. This Part further argues that the push for federally funded counsel--justified as increasing due process, efficiency, and efficacy--might compromise collective, transformative immigration demands by prioritizing individual outcomes over systemic change. Examining current limitations on advocacy to challenge the mass deportation regime--experienced by both lawyers already funded by the federal government to represent children in immigration proceedings and lawyers funded by the City of New York to represent detained migrants--illuminates some unintended pitfalls that federal funding of counsel for all immigrants might bring.

If a guarantee of federally funded counsel is in fact the wrong reform, then what is the proper role for those committed to defending immigrants from deportation? And what implications does this conclusion hold for local government-supported immigrant defense funds? Part IV explores strategies that could contribute to transformative change in the immigration sphere--strategies that pursue immigrant self-determination and free movement, rather than deportations that comport with due process and fairness. Part IV argues that immigration advocates should prioritize tactics that have as their goal shrinking the mass deportation regime. This Part argues against building a federally funded immigrant defense bar in favor of embracing local funding for immigration representation. These efforts will be most successful when working in conjunction with (or, at least, not in opposition to) efforts like shutting down immigration prisons, ending the pipeline from the criminal legal system to the deportation system, and dismantling new surveillance technologies. Part IV argues that unlike a federally funded bar of immigration defenders who *413 would likely be structurally limited to nonpartisan one-on-one lawyer-client counseling, lawyers unfettered by federal funding can and should be solidaristic players in a broader movement for immigrant justice. In this sense, this Article argues for immigration lawyers representing people in removal proceedings to avoid embracing proceduralist lawyering (lawyering emphasizing procedural justice, attorney nonpartisanship and neutrality, and a belief in the essential fairness of the legal system), which the call for federally funded counsel seems to embrace. Instead of proceduralist lawyering, this Article envisions a stance of liberatory solidarity with migrants.

For the most part, pro-immigrant funders, advocates, and scholars have uncritically embraced the call for federally funded counsel for immigrants. This Article calls for a pause to consider the factors that might render achieving federally funded counsel a public relations coup for the mass deportation regime rather than a win for immigrant communities. This popular reform proposal, if accomplished, might preserve mass deportation functions, while transforming how only a small percentage of those facing expulsion experience their deportations.

This Article's consideration of federally funded counsel is constructed unabashedly around a demand to shrink the mass deportation regime. It is an outgrowth of scholarship and advocacy efforts focused on avoiding reforms that further continue or expand the reach of the *414 immigration enforcement apparatuses and advancing those that seek its abolition. This Article builds on an argument I made in The End of Deportation, where I made the case for deportation abolition and drew attention to the limits of assembling scholarship and advocacy efforts around the inevitability of deportation. In theorizing deportation abolition, I argued that the practice “only expands and swells the indefensible and illegitimate use of state force and should be ended.” I pointed to the campaigns (including #Not1More Deportation, Free Them All, and Abolish ICE) that have already begun to delineate the legal and policy battles that prefigure the end of deportation. I also called for pro-immigrant scholars and advocates to engage in a process of abolitionist discernment when considering reform proposals. This process of discernment includes asking whether a reform proposal takes deportation's indefinite continuation for granted, whether it helps build the infrastructure for managing deportation, and whether it seeks to dismantle a condition of deportability. This Article involves applying abolitionist discernment to one specific reform proposal--federal funding for immigrants facing deportation. If pro-immigrant advocates aim to minimize mass deportation and its attending violence and harm, then we must consider whether the goal of federally funded counsel for immigrants helps dismantle deportation or strives for its perfected management. This Article initiates that necessary reckoning.

[. . .]

As the immigration enforcement machinery has grown, so has the push for guaranteeing appointed counsel to immigrants who are being cycled through it. Yet, a demand for federally funded counsel for immigrants sits comfortably alongside newly expanded immigration detention center contracts and the Biden administration's growing techno-border. It sits comfortably alongside expanded tracking of immigrants through electronic monitoring--because what is the immigration *484 court process if not a process of tracking immigrant bodies and, in most cases, tracking them right out of the United States? Proimmigrant advocates commonly assume that more lawyers for immigrants will mean more justice for immigrants. But more justice means more self-determination for immigrants (on the individual level) and less deportation machinery (on the macro level). If the question is whether lawyers make a difference in immigration court, the answer is mostly yes. But this Article has sought to answer a different question: Accepting that lawyers matter, should their mattering elevate securing federally funded counsel for immigrants to the status of a movement goal? My answer is no. Ultimately, in order for pro-immigrant advocates to do more than resign immigrant communities to due process-washed deportations, we must choose battles that have dismantling immigration enforcement as their ends. This means putting aside battles that seek to add lawyers as one more mandated player in immigration court.

Angélica Cházaro, Assistant Professor, University of Washington School of Law.