Editor’s note: This op-ed has been updated to reflect that the program will continue while it’s under evaluation.
A hallmark of the rule of law is that a nation means what it says and says what it means. Debate about policies is healthy and legitimate. Sabotaging policies we already have with hopelessly ineffective procedures is cynical and corrosive.
This is what is so disturbing about the Justice Department’s proposal to suspend the Legal Orientation Program for detained immigrants. We still claim to be a country that offers a safe haven to victims of persecution overseas, but this decision dramatically increases the likelihood that we will deport countless victims to grim fates abroad.
Started under the Bush Administration, the Legal Orientation Program sends lawyers into detention facilities to inform detained immigrants of the basics of U.S. immigration law and to help them determine if they have a viable case to stay. The necessity for the program is deeply unfortunate: Our practice of locking up vast numbers of people who come to this country for refuge. This harsh and unnecessary practice can retraumatize torture survivors and others jailed by oppressive regimes.
U.S. immigration law is exceedingly complex, in large part because of repeated efforts to ensure that only those with the most compelling cases can find refuge here. Detained immigrants, no matter how sophisticated, cannot hope to master these intricacies on their own. Facts that would strike most people as routine and unimportant may be crucial to an immigrant’s case; failure to mention them can result in the immediate deportation of a political dissident or member of a persecuted religious minority.
Despite the frequently severe, even life-threatening, consequences of deportation for asylum-seekers, U.S. law provides no right to counsel in removal proceedings. A few small, underfunded projects provide some representation, but the vast majority of asylum-seekers are on their own. The Legal Orientation Program is crucial to giving those seeking safe haven any serious chance of knowing the basis on which their fates will be determined.
In addition, the standards of proof in immigration cases are very high. Detained immigrants already are ill-equipped to document a recognized history of oppression in their homeland. If they have no idea what proof is needed, they have little chance of prevailing.
It is worth noting that all asylum seekers held in detention for more than a few days have passed an initial screening that found that they have a “credible fear” of harm if returned to their home country. Not all those cases ultimately pan out, of course, but those that obviously do not qualify are long gone by the time the program’s lawyers come around.
We are accustomed to hearing that lawyers slow down proceedings. Often they do. Here, however, lawyers actually expedite cases. When detained immigrants meet with lawyers who examine their cases and tell them they have no chance of winning, many agree to leave the country without waiting for a futile hearing. And those that do have strong cases are far better able to represent themselves in their hearings, making immigration judges’ work easier and more efficient. As the Department imposes severe quotas on its immigration judges to speed through cases even faster, shuttering the program is the last thing we need.
Beyond its formal role in informing detained immigrants of their rights, the Legal Orientation Program provides other important benefits. It is one of the few ways in which detained immigrants have contact with the outside world. Immigration and Customs Enforcement (ICE) increasingly relies on private prisons to house detained immigrants. Conditions in detention facilities can be quite inhumane. The Women’s Refugee Commission and Lutheran Immigrant and Refugee Services have documented severe abuses, many directed against children, in family detention facilities. Isolating detained immigrants even more creates a culture of impunity.
Although Congress fully funded the Legal Orientation Program for this year, the Justice Department is considering shuttering the program after evaluating its effectiveness. Rigorous evaluations already have shown the program to be highly effective; that is more than can be said for the border wall, food assistance cuts or other policies the administration is nonetheless pursuing with reckless abandon.
If the administration wants to break with two centuries’ tradition and close our doors to victims of foreign oppression, it should try to persuade Congress to change our immigration laws. Shutting down the Legal Orientation Program accomplishes much the same thing through compromised hearings rather than open debate.
David A. Super (David.Super@law.georgetown.edu) is a law professor at Georgetown University.