While the eyes of the nation have been understandably focused on litigation concerning the Trump Administration’s travel ban, officials in the Department of Homeland Security and the Department of Justice have been hard at work gearing up the nation’s formidable immigration enforcement machinery to engage in a priority-free deportation program.  The number of individuals removed in the first three months of the Trump administration represents an increase of 33% over those removed in the same period under President Obama last year, including a doubling in arrests of individuals with no criminal records.  Failing to internalize any of the lessons learned by the Obama Administration—through enforcement strategies that were painfully tested and reformulated at the expense of immigrant communities around the country—the new administration is reverting back to an era when line agents rather than elected officials make the calls about how to allocate immigration enforcement dollars.  Executive Order 13768 makes clear the fact that removal priorities are a thing of the past.  Perhaps as a result, recent arrestees have included parents of citizen children and immigrant activists.

That’s bad enough.  But what is particularly troubling about the Trump Administration’s recent enforcement efforts is that an aggressive expansion of priority-free enforcement is taking place alongside systematic efforts to strip people caught in the enforcement web of their right to due process.  

One of the most jarring recent examples of this pattern came last month, when the Department of Justice issued a cease and desist letter to the Northwest Immigrants Rights Project (NWIRP).  In so doing, AG Jeff Sessions’s DOJ signaled its intention to use federal rules that were designed to protect immigrants from ineffective representation in a strange new way—one that would ensure many immigrants have no representation at all, even if their lawyers would be first rate.

People are often quite surprised to learn that the government has no obligation to provide counsel to immigrants in removal proceedings, which are considered civil, not criminal.  This is just as true for long time, lawful permanent residents as it is for individuals who arrived without inspection moments ago.  It is also generally true for small children, who have frequently and shamefully been required to represent themselves in their own removal proceedings, where the government is represented by counsel.  Congress has doubled-down on this troubling system by denying federal funds to public service organizations that represent unauthorized immigrants.  By and large, then, federal funds are not available to assist immigrants in their deportation defense.

That said, case law clearly establishes that immigrants have a Fifth Amendment due process right to retain competent counsel in removal proceedings at their own expense (or pro bono).  Competent counsel for immigration proceedings is scarce, however.  Available resources are totally overwhelmed by the number of cases.  This is where organizations like NWIRP come into play.  These groups use private funding to provide quality representation to individuals who need and want it, but who otherwise might not get it.  They are, in fact, accredited by the federal Board of Immigration Appeals to perform these services.  They, too, are scarce.  NWIPR is the only such service provider in the entire state of Washington, for example.

Recently, however, to further facilitate its lopsided advantage in removal proceedings, the Sessions DOJ has sought to re-purpose federal rules aimed at preventing unscrupulous attorneys and non-attorneys from providing ineffective assistance of counsel in removal proceedings.  Instead of using these rules against their intended targets, the Sessions DOJ now tries to use them against respected and established immigrant-serving organizations.

Sessions’s recent letter to NWIRP accordingly asked the nonprofit to stop “representing aliens unless and until the appropriate Notice of Entry of Appearance form is filed with each client that NWIRP represents.”  The federal Notice of Entry requirement was created as part of an effort to prevent unscrupulous lawyers and non-lawyers from taking immigrants’ money and then failing to provide adequate representation on their cases.  Fraud is a persistent problem in immigration representation.  But NWIRP is not part of that problem.  If anything, it’s part of the solution.

NWIRP provides legal counseling to numerous immigrants with regard to various aspects of their case.  This includes both representing clients in proceedings and providing advice to individuals who are representing themselves.  NWIRP does not file a Notice of Entry for every immigrant they counsel, but this is not to avoid the accountability that federal rules seek to create.  As NWIRP maintained in a recent legal filing, the organization “met with the local immigration court administrator to discuss” the rule and “agreed that it would notify the court when it assisted with any pro se motion or brief by including a subscript or other clear indication in the document that NWIRP had prepared or assisted in preparing the motion or application.”  In other words, NWIRP is accredited to provide immigration services, NWIRP is transparent about when it provides those services, and NWIRP conferred with federal officials about how to best maintain such transparency without the filing of a Notice of Entry in every matter in which it counsels an immigrant.

DOJ’s effort to use the Notice of Entry requirement to impede rather than to improve immigrant representation did not go over well in federal court, at least as an initial matter.  On Wednesday, May 18, 2017, federal district court judge Richard A. Jones sided with NWIRP and issued a nationwide temporary restraining order that allows NWIRP and other similar organizations around the country to continue the challenged practices without interference from DOJ pending a full hearing.

But this is not necessarily the end of the story.  As Above the Law’s Joe Patrice has noted, should DOJ persist in this vein, it could attempt to leverage anti-fraud rules to dampen the ability of many groups to provide needed services to their clients.  Clearly, Sessions’s DOJ not only seeks to apply the harshest interpretation of immigration law to the largest group of immigrants possible, but it also wants to prevent those immigrants from accessing the legal counseling necessary to combat erroneous and unfair applications of the law.

Immigrants who have legal assistance tend to win their cases at startlingly higher rates than those who are unrepresented.  For many immigrants, the problem is not a lack of valid legal grounds to remain in the U.S., but rather the lack of a representative qualified to help them articulate their legal claim.  In those all-too-rare cases where qualified counsel is actually available and willing to help in some capacity, the Department of Justice shouldn’t be in the business of impeding the very thing that justice requires—a fair hearing.

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