By Yunie Hong, Legal Aid Foundation of Los Angeles, and Timothy Griffiths, Survivors of Torture, International
Ms. C is from Eritrea. She was forcibly conscripted into mandatory military service right after completing high school. In the military, Ms. C’s superiors routinely abused and raped her. After enduring these horrific conditions for over a year, Ms. C saw a chance to escape and took it. She made the extremely treacherous journey across the Eritrean border into Sudan. After many months of travel, and with the help of some good Samaritans along the way, she eventually made it to the U.S.. At the airport, she informed an Immigration officer that she was afraid to return home and wished to apply for asylum. To her surprise, immigration officials whisked her away to a remote immigration detention facility, placed her in removal proceedings, and told Ms. C that she would have to fight her case in front of a judge. When she explained that she didn’t have any money to pay for an attorney, immigration officers gave Ms. C a list of places to call for free legal representation. With the precious few minutes that she was allowed to use the phone, Ms. C called the nearest Legal Services Corporation (LSC) funded Legal Aid office. The Legal Aid agency had to inform Ms. C that they could not help her due to LSC funding restrictions and her lack of immigration status.
Unfortunately, Ms. C’s story is a common one. Individuals who have a well-founded fear of persecution in their home countries due to their race, religion, nationality, political opinion, or membership in a particular social group, may be eligible for asylum in the US.[1] However, immigration law is very complex, and competent legal representation is key in winning an asylum claim. Studies have shown that asylum-seekers with legal representation are successful 46% of the time, while those without an attorney lose all but 16% of the time, making access to counsel an extremely important factor in whether an asylum seeker receives protection or not.[2] Although immigrants have a right to counsel in deportation proceedings, in practice this “right” is most often illusory, since the government does not provide free counsel to those who cannot afford to pay for legal representation. Many asylum seekers must flee their homes with little more than the clothes on their backs. Any resources they have or scrape together en route they use to pay for the journey. As a result, upon arrival in the U.S., most asylum seekers are completely destitute. Just obtaining food and shelter is frequently a major challenge, never mind hiring a private attorney. Even if jobs were plentiful, asylum seekers cannot simply work to earn the money they need to pay for an attorney, because they cannot get employment authorization until after their cases have been filed and pending for at least 6 months–and that’s the best case scenario. Procedural hurdles frequently delay work authorization even longer. In many instances, asylum seekers are legally prevented from working until after their cases are actually won.
Further complicating matters, many asylum seekers have limited education and/or English proficiency and are facing a completely foreign legal system. Many asylum seekers have been victims of unspeakable human rights abuses, including torture, and suffer from post-traumatic stress disorder, depression, anxiety, and a host of other physical and mental conditions as a result. All of these factors make it extremely difficult for asylum seekers to fight their cases without the assistance of an attorney. Given what bona fide asylum-seekers will face if they lose their cases and are sent home, the stakes could not be higher. It is no exaggeration, therefore, to say that in many instances, access to competent, free legal representation for asylum seekers is a matter of life or death.
Legal Aid programs are an obvious solution to the need for legal representation in asylum cases. In almost every community across the nation, the federal government funds Legal Aid programs through the Legal Services Corporation (LSC). These programs provide free civil legal representation to the indigent, precisely the service that asylum seekers desperately need. Unfortunately, however, Congressional restrictions on Legal Aid organizations which receive LSC funding prevent these programs from assisting asylum seekers. LSC-funded Legal Aid organizations cannot provide full representation to individuals unless they are US citizens or have lawful immigration status, such as a “green card.” There are a few exceptions to this general rule, but the vast majority of asylum seekers do not fall within any of these exceptions. As a result, there are few options available for indigent asylum seekers. There are too few nonprofit Legal Aid agencies unrestricted by LSC funds and too few pro bono attorneys who will take on these difficult cases. The bottom line is that many asylum seekers with strong asylum claims are left without legal representation, often times with dire consequences.
The primary argument raised against allowing LSC-funded programs to serve asylum seekers is the classic “floodgates” argument—that a tidal wave of asylum applications will be filed as a result. But while access to counsel does make a major difference in whether a bona fide asylum seeker wins his or her case, there is no evidence to suggest that greater access to competent counsel would spur more people to apply. In fact, the opposite would likely be the case. The vast majority of frivolous asylum claims are currently filed by “immigration consultants,” or “notaries.” These “immigration consultants” gain the trust of desperate immigrants by speaking their language and making unfounded promises, often times offering lower fees than that of a licensed attorney. Frivolous asylum claims are also often filed by unscrupulous private attorneys, who instill false hope in immigrants and file non-meritorious asylum applications in exchange for hefty fees, sometimes without the applicant even knowing what is contained in the application. To pay these “immigration consultants” or attorneys, asylum-seekers typically borrow heavily from relatives and friends and must take on payment plans to pay for the services. When, as frequently happens, the asylum-seekers cannot maintain the payments, the “immigration consultants” or attorneys drop the case, leaving the asylum-seeker, incredibly, even worse off legally and financially than when they started. The upshot of all of this is that asylum-seekers get exploited and abused, while an incredibly backlogged immigration court system is further clogged with non-meritorious cases. If potential asylum seekers were able to consult with competent attorneys, especially those whose job and mission it is to serve people living in the low-income communities where asylum seekers tend to live, such as attorneys in legal aid programs, the asylum seekers would have their claims thoroughly vetted and they would be dissuaded from filing any non-meritorious claims. The result would be a win-win situation: better legal advice for people and a reduced burden on the system.[3]
The issues surrounding immigration reform, let alone the issue of potentially providing free services to undocumented individuals, tend to evoke strong negative reactions among many members of Congress as well as the general public. This is notwithstanding the U.S.’s legal and moral obligation to protect human rights, as a party to the Convention Against Torture, which prohibits sending individuals back to countries where they are likely to be persecuted and tortured.
Exceptions to LSC’s general immigrant eligibility requirements already exist for certain crime victims including domestic violence and human trafficking survivors. Pending LSC reauthorization legislation in Congress that addresses expanding LSC-funded services to certain immigrant groups does not include extending LSC-funded services available to asylum seekers. Asylum seekers almost always come from developing nations and are most frequently people of color.[4] Thus, the current prohibition on LSC grantee legal services attorneys serving asylum seekers has a racially disparate impact: the harm falls disproportionately upon people of color residing in the United States.
Asylum seekers often come from repressive, authoritarian countries and risk their lives to make it to the U.S. Through sheer will and perseverance, these individuals beat the odds and make it to our shores. They have incredible stories and contributions to make to our society, and provide a unique voice in our collective narrative. As few others can, asylum seekers remind all Americans of the true value of our ideals of justice and respect for human rights. It is inconsistent with these ideals to deprive asylum seekers, some facing death, imprisonment or other serious harm if they return to their home counties, of access to competent no-cost legal assistance with their asylum cases.
[1] 8 U.S.C. § 1158
[2] See “Refugee Roulette,” Stanford Law Review, Volume 60, pg. 341 (2008).
[3] On the question of cost, expanding eligibility for LSC-funded services to asylum seekers would not require any additional expenditures on the part of the federal government. It would merely allows LSC-funded organizations to have the flexibility to use their existing LSC resources to serve asylum seekers and extend access to a group of potential clients with an obvious compelling unmet legal need if the programs so choose.
[4] See Department of Homeland Security Office of Immigration Statistics, “2009 Annual Flow Report, Refugees and Asylees,” available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_rfa_fr_2009.pdf
