Excerpted From: Ryan Saunders, Opting out of the Exception: Washington's Opportunity to Provide Due Process for Detained Immigrants, 22 Seattle Journal for Social Justice 155 (Fall, 2023) (156 Footnotes) (Full Document)


NoPictureMale.jpegThe United States is commonly referred to as a “nation of immigrants.” Throughout this country's history, millions of people have emigrated from their home countries to the United States. People leave their home countries for countless reasons, and the United States has provided a home for them for hundreds of years. In some ways, the United States' history of immigration is celebrated; elementary school students sing about the “Great American Melting Pot” and Americans celebrate their own heritage in myriad ways. While immigration is foundational to the history of this country, nativism and anti-immigrant sentiment have existed since the country was founded. Many Americans have an “us versus them” mentality when it comes to immigrants; they view immigrants as a threat to both the economy and security of the country. Throughout this country's history, the villainization of immigrants has resulted in hateful sentiments towards entire racial, religious, and cultural groups. These attitudes are pervasive and are reflected in the unequal treatment of immigrants under the law.

It is commonly known in the United States that the constitution protects both citizens and noncitizens. For example, the Fourteenth Amendment prohibits states from depriving persons, not citizens, of their life, liberty, or property without due process of law. The Constitution also offers protections for all people in the United States, citizen or otherwise, in several of its other Amendments. While some constitutional rights, such as the right to vote, are exclusively for “citizens” of the United States, the right to counsel and the right to be free from unreasonable searches and seizures extend to all “persons” of the United States. While noncitizens enjoy constitutional protections in criminal proceedings, immigration enforcement is conveniently carved out of these protections. As explained below, the geographical areas near our borders are zones where Fourth Amendment protections are reduced. Immigration enforcement is tied to “national security” in our country, and our government is willing to neglect the promises made in the Constitution, as long as only the rights of noncitizens are those whose being ignored. In particular, in the years following the September 11th terrorist attacks, both state and federal governments have used the threat of terrorism to militarize our borders and deprive immigrants of their due process rights by expanding immigrant detention.

Italian philosopher Giorgio Agamben has written extensively about the ways governments capitalize on emergencies, real and constructed, to justify extrajudicial punishment of the “other.” He argues that these populations are placed into a “space of exception” where they are simultaneously excluded from the protections of the state's laws while deliberately and forcibly exposed to the full power of the law's enforcement. This framework is useful in understanding both the nuanced and dynamic otherization of immigrants in this country as well as how imperative it is that immigrant justice advocates combat this disparate treatment that has become so normalized.

This paper will elaborate on the space of exception and how scholars have applied it to the immigration context. Then, it will disucss some contemporary instances where immigrants are further removed to the space of exception. Next, it will examine how the state of exception has impacted Washington, primarily analyzing the creation and expansion of immigrant detention. The majority of the paper will propose a state-wide right to counsel for detained immigrants as a way for Washington to combat the nationwide state of exception.

[. . .]

A. Implementation

Washington's new right to counsel in eviction proceedings with indigent tenants and New York's right to counsel in removal proceedings utilize a combination of government, nonprofit, and academic groups to fill the requirement. In Washington, this proposed program could follow the same trend. As discussed above, NWIRP has the infrastructure and know-how to facilitate work with detained individuals. If NWIRP were to be given a significant increase in funding, it could hire additional attorneys and have them represent detainees. These new attorneys would be able to benefit from all the training material that NWIRP has created over the years while learning alongside experienced immigration attorneys. There are other legal services groups in Washington that could also help meet the demand for representation; Columbia Legal Services and the ACLU of Washington are two examples. These two organizations have projects focused on immigrant rights. If they received funding from the state, they could create several additional positions for attorneys to work in removal defense. The legal services community of Washington is very well-connected, and these groups frequently work together. Washington could benefit from this impressive network by using it as the foundation for the creation of assigned counsel for immigrant detainees.

This workforce would still need significant support, and law schools could provide that support in a variety of ways. Washington law schools could focus their immigrant rights clinics on removal defense work by assisting right to counsel attorneys with immigration forms, client intakes, and drafting declarations and memorandums. Similarly, Washington law schools could facilitate externships with these newly assigned counsel for detainees where law students could take on some of the workload while gaining immigration and litigation experience. Externship programs and clinics can help by creating a pipeline of young attorneys funneled towards the right to counsel roles.

Criminal matters and immigration matters can often overlap, which has created the need for attorneys who are experts in “crimmigration.” A new Washington right to counsel for detained immigrants could include additional funding for public defender offices where Washington immigrants are facing criminal trials as well as removal proceedings. This funding could allow some public defenders to assist with the demand. Since public defenders are often overworked, it would be crucial for the new funding to ease their workload and allow them to hire the necessary additional staff to properly assist.

B. Importance

The United States is at a pivotal time in its history. In the past 20 years, federal policy has otherized and criminalized immigrants in new ways. Immigrant detention, particularly for Latine and Muslim populations, has grown exponentially with little meaningful resistance. These detention facilities operate unchecked, and those detained inside are given little due process; they exist as an exception to the laws of this country. This system of detention is most dangerous if left alone. Detainees in these facilities have no voice and are in need of dedicated advocacy. Having an attorney can provide meaningful, lifesaving benefits for detained immigrants. Washington has a duty to protect its residents from harm and can do so by establishing a right to counsel for detained immigrants at the NW ICE Processing Center. Washington is well-prepared to create such a program, and can lead the way as other states create similar programs, ultimately creating a nationwide movement and commitment to provide due process to all people in this country, not just those who happen to be born here.

C. Future Expansions and Reviews

After implementing the right to counsel for detained individuals in removal proceedings, it will be important for the state of Washington to expand and modify the policy to continue to support immigrant rights. As proposed in this article, the right to counsel will extend to only those individuals who are both detained and in removal proceedings. Activists in Washington are working hard to achieve the shutdown of the NW ICE Processing Center. It is possible that Washington will no longer be the home of a detention center some day; however, the closing of the NW ICE Processing Center would not absolve Washington of its obligations to protect immigrant rights. You do not need to be detained to be in removal proceedings. Should the NW ICE Processing Center close, Washington ought to restructure this right to counsel policy to apply to all immigrants in removal proceedings.

Furthermore, Washington must monitor the progress of the program post-implementation. To create an effective and efficient right to counsel, the Office of Civil Legal Aid (OCLA) should collect data on the impacts of the new policy. OCLA also needs to listen to practitioners, immigrants, and the organizations that provide counsel. Prioritizing the wants and needs of those surviving in the detention center and those lawyers doing the work will create a more sustainable, effective system. Washington's legislature has the tools, support, and drive to make a historical advancement in immigrant rights. The right to counsel for detained individuals in Washington is long overdue.