In the criminal justice system, the accused has the right to an attorney and if he or she cannot afford an attorney, the government provides one for free. This is not the case in immigration court. In fact, in immigration court the burden of proof is usually on the defendant (immigrant). While the immigrant has the right to be represented by an attorney, one is not appointed if the immigrant cannot afford one. What happens next is surprising. If an immigrant facing deportation cannot afford an attorney, the Immigration Judge proceeds with the case and the immigrant must proceed unrepresented. This, for obvious reasons, severely and negatively impacts the immigrants’ ability to defend him or herself.
In New York City, there is a new pilot program in place trying to change this. It is the nation’s first government-funded public defender service for immigrants facing removal or deportation. The program is focused on providing detained immigrants who are financially unable to afford attorneys with court-appointed attorneys from the Bronx Defenders and Brooklyn Defender Services. The program will serve at least 190 detainees in a test run that will last until the end of February 2014. This pilot program expands what President Obama initiated in March affording representatives for those immigrants in removal proceedings who are deemed mentally incompetent.
So far, many of the immigrants in detention represented by the public defenders have had to accept orders of deportation. Still, it is more comforting to be represented by legal counsel when accepting an order of deportation so one can do so knowingly and without fear that they are doing the wrong thing.
It remains to be seen whether this program will be expanded or picked up by the Federal Government.