Immigration law is a strange beast. Immigration is usually civil law, with the penalty for violations ultimately being deportation, that is, not being permitted to stay in this country. While certain immigration violations are classified as criminal offenses, the majority of immigration laws fall into the civil arena.
In the world of immigration enforcement, “detention” (a value-neutral way of saying “imprisonment”) of immigrants is all-too-common and devastating to the individuals detained and their families. It is a deprivation of liberty, a penalty that we reserve for our most serious criminals, and yet it is used routinely for alleged immigration violations. I’ve said it before on this forum, but it bears repeating: Immigrant detainees are caught in a Catch-22 because these individuals are treated as criminals but not given the rights of the criminally accused. We should either treat immigrants accused of violating immigration laws as being accused of civil violations, with civil penalties and only civil protections and rights, or treat these immigrants as criminal defendants, with the concomitant protections of the criminally accused. Straddling the middle of these categories – given only civil protections but faced with criminal penalties – exacts a high toll in human suffering (for the immigrant and the immigrant’s family) and economic resources, as we lose the value of that person’s contribution to the labor market and spending in our economy, and imprisoning unauthorized immigrants costs us about $2 billion a year.
Immigrant advocates have long pointed out this inequity, and now a new pilot program in New York City, funded by City Council, aims to ameliorate at least one aspect of this problem. The New York Immigrant Family Unity Project is a one-year program aimed at providing pro bono counsel to detained New Yorkers. Immigrants in deportation proceedings are told by judges that they have the right to counsel, but only at no cost to the government. For low-income immigrants in proceedings this is a hollow right. It is meaningless when one cannot afford to pay for competent counsel, and finding a good lawyer from prison… Well, try it yourself and see how far you get.
Like all sectors of the population, immigrants include good apples and bad apples. For immigrants found to be dangerous to the community imprisonment is appropriate. But for those accused only of non-criminal violations of immigration law, incarceration often unnecessarily rips apart families, prevents a parent from being able to look after and provide for U.S. citizen children, removes a needed employee from work, and costs about $164 a day (that’s $59,860 a year) to house and feed that individual on the federal dime. Think of this just in terms of the cost of foster care for children left without a parent to look after them ($36,000 a year in New York City), and you start to get an idea of the real costs of unnecessarily jailing those accused of civil immigration violations. Having a good lawyer in this situation often makes all the difference, according to the 2011 New York Immigrant Representation Study, which found that the percentage of detained immigrants who win their immigration cases without representation is 3%. Having a lawyer, and being free from detention, can increase the chances of success to 74%.
The estimated cost of providing competent counsel for a detained immigrant is $3,000. If this is the cost of proving that an immigrant should not be detained while defending against a deportation action then it will save the federal government about $60,000 a year per immigrant, and save in the costs of families having to rely on public support systems because a vital breadwinner is incarcerated.
I will keep an eye out to see how this pilot program fares. It is a step in the right direction and I wish it the best.