Episode 4: Crimmigration Nation

via Stories from the Border

This week, Stories from the Border Summer Fellow, Julia Huesa, interviews Phil Torrey. Phil is the Managing Attorney of the Harvard Immigration and Refugee Clinical Program. The two talk about the historical context for crimmigration, his work with clients, and the impact of crimmigration during the COVID-19 pandemic.

Listen to the episode at https://anchor.fm/broadcastsfromtheborder/episodes/EP4-Crimmigration-Nation-ehc5ri

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Read below for the transcript:

Meena:

Welcome to Broadcasts From the Border. I’m your host, Meena Venkataramanan. This week, Stories From the Border Summer Fellow Julia Huesa interviews Phil Torrey. Phil is the managing attorney of the Harvard Immigration and Refugee Clinical Program. The two talk about the historical context for crimmigration and its impact now during the COVID-19 pandemic.

Julia:

So to start off, could you give us a bit of an overview of your work at the Harvard Law School Crimmmigration Clinic, why it’s so complex, and also why it’s different from your work at the Harvard Law School Immigration and Refugee Clinic?

Phil:

When I first started there, I was in the Immigration and Refugee Clinic, primarily working with individuals who were seeking various forms of humanitarian protection in the United States. I had come from a legal services background and when I was in legal services, many of my clients had criminal convictions and were facing deportation because of those convictions, often very minor offenses. And so after working for a couple of years at Harvard on asylum issues, with the help of our director at the time, I decided to start the Crimmmigration Clinic. It obviously focuses on the intersection of criminal law and immigration law. The work in the clinic, I really think of it as three distinct buckets. So we have some direct representation — it’s probably the smallest part of our clinic — in which we represent folks in immigration proceedings who are facing deportation because of a criminal issue. We have a policy bucket where we work with nonprofit organizations around the country on issues that are important to them. And then the third bucket is the litigation bucket.

Julia:

So, just to clarify, does your clinic mainly represent clients in their immigration cases, their criminal cases, or both?

Phil:

In terms of the criminal cases, what we do is provide something called Padilla Advisals in which individuals who are not US citizens that are facing immigration consequences because of a criminal charge, are required to receive advice from their criminal defense counsel about what those immigration consequences may be. And so we work with criminal defense counsel around the country, and also here locally, to provide that type of advice. So that’s the context in which we work in criminal proceedings, but most of our clients are folks in the immigration process.

Julia:

Thanks, that’s really helpful. Could you walk us through the process of, or put us in the shoes of, when a person who is not a citizen or whose citizenship is in question is accused of a crime until when they learn of or experience the immigration consequences of that crime?

Phil:

What happens is the criminal law system leverages the immigration system and uses it as a form of domestic crime control, and the immigration system leverages the criminal law system as a unique method to increase the deportation pipeline. So the two systems really feed off of one another. And so entry points into those two systems vary for different individuals. But a typical case might look something like somebody who’s not a US citizen, let’s say, was pulled over while driving because they theoretically in any way crossed a divider, crossed the line in the road. And when they’re stopped, they don’t have a valid driver’s license. They could pick up a criminal charge in that sense, and what can happen is they get fingerprinted. Those fingerprints are shared with a national database that includes Immigration and Customs Enforcement, and Immigration and Customs Enforcement can then request from the local law enforcement agency to notify Immigration Enforcement before they release that person. And a lot of times what happens — and this is sort of a misconception sometimes — is that the criminal law proceedings and the immigration proceedings are completely separate. So somebody in the criminal law process could get charged with an offense, get picked up by immigration, moved over to the immigration removal process and detained, and their criminal proceedings — the state criminal proceedings — keep going. And they end up not being able to show up for those court hearings, and so they can default on the criminal proceedings while they’re in immigration detention. And then if that person gets deported, getting back into the country when you have a default on your record is really really difficult to do.

Julia:

If they’re defaulting on their criminal proceedings while they’re in immigration detention, what are their chances of getting representation in either kind of proceeding?

Phil:

One of the biggest factors is just geographic location. Once somebody is put into an immigration detention center, let’s say, in Massachusetts, the federal government can easily move that person down to somewhere like, let’s say, Oakdale, Louisiana; somewhere where it’s really difficult to get access to immigration counsel. And so in most proceedings, there’s something like, I think the figure is something like 37% of folks have counsel in immigration proceedings. If you’re detained, that number drops to something like 14%. So while you have a right to counsel in immigration proceedings, you don’t have a right to one appointed to you like you do in criminal proceedings. And so if an individual is moved to a location where there aren’t many immigration attorneys or there aren’t pro bono services, or they’re really difficult to get access to, in those areas, the rate of representation is much lower than that 14%. In other areas, places like New York, Chicago, San Francisco, even Boston here, where there are programs in which there are pro bono services in place for folks who are detained, then that figure is much higher than that 14%.

Julia:

Is there any public funding for representation in immigration proceedings?

Phil:

So there’s no federal public funding, there is some funding, and it’s sort of a growing movement amongst states and city councils specifically to provide immigration counsel using state funds or city funds. And there’s a couple of different reasons behind that growing movement. One, obviously, is the fact that there isn’t a lot of immigration counsel and folks are in dire need of it, and a lot of times people can’t afford it. Another is, from an economic standpoint, the city would much rather not have families get separated, you know, it’s dealing with foster care if a family gets separated or unemployment or, you know, increased reliability on, you know, public benefits and things like that. So, all of those issues sort of culminated in this movement that began really out of New York several years ago.

Julia:

Do lawyers even bother representing people who have been accused of crimes if they’re undocumented?

Phil:

There are a lot of programs in which there’s funding and willing pro bono attorneys to sort of step in to provide representation to folks without immigration status that have no criminal record whatsoever. You know, whether that’s a minor child coming across the border or someone who’s overstayed a visa. Just from my experience, anecdotally, there is more services and resources for those folks. And I think part of this is, unfortunately that sort of the national rhetoric and the sort of dichotomy between the good immigrant and the bad immigrant. The good immigrant being the person who’s sort of fleeing violence, who’s here, who’s paid taxes, who has a family here, who’s an employee, who has no criminal record at all, and the bad immigrant being the individual that has convictions for, let’s say, for crimes of poverty or otherwise. And that dichotomy sort of plays out in the representation too I think, so a lot of individuals are apprehensive about representing folks who have criminal convictions. The other piece of that is it really can be very complex and confusing to determine what the immigration consequences of a criminal conviction may be. So crimmigration is in a much more nascent stage, so there’s less certainty out there about what, you know, what lawyers should be providing terms of services when folks have a criminal conviction.

Julia:

And in your ideal world, what kind of advice would lawyers be able to give on the immigration consequences of criminal proceedings?

Phil:

There has been a range of different standards in terms of type of advice. At one end of the spectrum, you have the recent Massachusetts decision, the DeJesus case, in which Massachusetts has said lawyers need to provide advice about, you know, whether that person is going to get deported because of the criminal offense, whether the defense or the offense bars any kind of potential immigration relief, what the detention consequences are. And then in other areas of the country, it’s sufficient, according to courts there, to simply say, “Yeah, this conviction may result in your deportation.” I firmly believe that the former standard — providing them particularized advice — should be the standard nationally. Now, as I’ve mentioned a couple times before, immigration consequences of criminal convictions can be really difficult to figure out, but that doesn’t mean that they’re not there. In my opinion, that doesn’t excuse an attorney from not doing their due diligence and engaging in those kinds of analyses, and providing that kind of advice. So, while, you know, especially in public defender’s offices that are already extremely overworked, it can be really hard for those attorneys to suddenly become crimmigration experts. But there’s a couple of models that have been followed around the country that I think are great. So in some defense counsel offices, like in Brooklyn and the Bronx in New York, there are in-house immigration lawyers that help criminal defense attorneys decipher what the immigration consequences of criminal convictions may be, but in other areas that are, you know, more underfunded, that can’t afford to hire those kinds of immigration attorneys, there are private attorneys in the area that can provide that advice. I provide that advice all the time to criminal defense counsel around the country. Ultimately, what I would say is that immigration consequences are there and they often are very clear, they’re just difficult to unearth.

Julia:

Could you give us a few examples of cases in immigration proceedings that you think could have really benefited from appointed counsel?

Phil:

I’ve taken on, for example, appeals where the individual was representing themselves. And just in reading through the transcript, the level of confusion in those proceedings is so, it’s so obvious and heartbreaking. You know, I have a client right now, for example, who’s in Mexico that was deported years ago and separated from his family. He lived in the United States for 40 years. He had a relatively minor conviction out of Oregon and represented himself in his immigration proceeding. And like didn’t totally understand that these proceedings could result in his deportation. And a lot of the language that was used by the immigration judge that was interpreted to him in Spanish with legalese, and so he ended up getting deported. And we’re now representing him to try to bring him back because his conviction clearly should not have triggered the deportation consequences that he ended up facing. So I see that kind of scenario all the time. In fact, in most of my appellate cases that I’ve taken on. Yeah, it’s heartbreaking. It’s tough to see.

Julia:

Could you talk to me a little bit about this idea that immigration consequences are not considered punishment for the crimes they are consequences for?

Phil:

In reality, immigration consequences are significant. They’re severe and often more severe than criminal consequences. So it is this sort of legal fiction that we’re living in where, you know, things like immigration detention and deportation are considered “civil.” Whereas, you know, you could get a fine for an offense that’s considered criminal. It doesn’t make a lot of intuitive sense. And I think there’s a growing recognition that these consequences are just about as close to punishment as you can get, if not more so. You know, to give you one example, if you look at immigration detention, which is, again, considered civil confinement and not criminal incarceration. In reality, there are something like 250 immigration detention facilities around the United States. A large majority of them are privately run, so they’re for-profit facilities. And then the remaining facilities largely are county-run criminal facilities. So here in Massachusetts, for example, there are three main county-run facilities that are run by county sheriffs. They’re criminal incarceration facilities, so the majority of individuals who are detained there are serving criminal punishments. And then they rent out space, rent out that space to the Department of Homeland Security to detain folks in immigration custody. It’s the exact same facility, it’s the same guards, it’s the same cells, it’s the same foods, same access to recreation, to the library. It’s the same, you know, visitation rights for family and counsel. For all intents and purposes, it looks exactly the same. One of the few differences I see is that, is the color of the jumpsuits that are worn by the criminal incarcerated individuals versus the civil immigration incarcerated folks.

Julia:

Could you talk about how these different systems of punishment under civil law play out in the immigration consequences of involvement with a criminal legal system plagued with systemic racism and police violence that we as a nation are once again reckoning with.

Phil:

So racism and white supremacy is very deeply embedded in our immigration laws and have been really from the start. If you go back to the first federal immigration law in 1790. What that law said was that only free white persons were eligible to become US citizens. That concept has not left our system. So you’ve got laws, late 19th century laws, like the Chinese Exclusion Act, which did exactly what it says, it excluded individuals from China and other Asian countries from immigrating to the United States and becoming US citizens and posed a whole host of consequences upon them that we’re not applied to others, particularly white individuals from Western or Central European countries. And then if you fast forward to the mid 90s, where you’ve got the War on Drugs at its height, culminates in this series of laws, both from the criminal and immigration end. That’s when you really have the beginning, in my opinion, anyway, of this crimmigration system, you know, this unholy marriage between the criminal law system and the immigration system, both of which have these deeply racists roots. The two of those systems get together and, again, sort of leverage one another, and you have this sort of exponential, deeply racist system that has developed today. So for example, one aspect of immigration we’ve talked about is immigration detention. More than 70% of folks in immigration detention right now are held in private detention facilities, so for-profit, publicly traded corporations that make money off of Black and Brown bodies who are caged in their facilities. That system was first created in the South, post-Civil War Reconstruction Era, in something called the Convict Lease Program. And you have increased criminalization of recently-freed slaves and a particular focus on the Black community. And the result of that was a huge increase in the number of Black individuals who were incarcerated in these facilities. And what happened, in particular, starting with a facility called Parchman Farm, is they leased out — this is how they termed it, right, so they’re basically talking about people as chattel; as property — leased out individuals to farmers and mines and all kinds of corporations that particularly, that previously relied on slave labor, at extremely low rates. And those folks basically took convicts and re-enslaved them. That was really the beginning of this concept of for-profit detention centers. And now we have a system where we incarcerate in immigration, something close to between 400,000 and 500,000 individuals every year, more than 70% of which are in private facilities.

Julia:

And — also something that we’re all experiencing today — could you talk about the impact of the coronavirus on an already backlogged system of immigration cases and how your clinic is dealing with representing its clients during this pandemic?

Phil:

With the COVID-19 pandemic, just about all of our clients are detained in these immigration detention facilities around the country. So we have a few, for example, that are here, detained in Massachusetts. And what we did was work to try to get them out of those facilities because there’s, you know, there’s a lot of studies that COVID-19, once it gets into a detention facility, spreads like wildfire, and it’s obviously very deadly. So we filed habeas petitions in District Court arguing that our clients should be at least given a hearing to determine if they should be released given the pandemic and given their vulnerable situation. A lot of times these facilities detain folks in close quarters; sanitation is not done up to par. You know, they share bathroom facilities, shower facilities. So, so anyway, we sort of went full speed ahead in trying to get folks out of detention. In terms of the backlog, so prior to this pandemic, the immigration court backlog was over like a million cases. The detained docket continued to go forward. So what happened practically was our hearings were done via teleconference, you know, we tried to represent folks this way, which has its own kinds of just logistical challenges. And, you know, I foresee that happening, continuing in the near future. A lot of facilities are starting to try to decrease the number of individuals that are there. But I think immigration is particularly reluctant to release folks so we’ll continue to fight to make sure we try to get as close as we can.

Julia:

Great. Well, thanks again, Phil Torrey. I’ve really enjoyed talking to you and we’re so glad to have you on the show this week.

Meena:

This episode was produced and edited by Julia Huesa and Jess Eng. Thank you to Emily Hong and the Blue Dot Sessions for their original music. If you liked this episode, please share it with your friends and follow us on Spotify or iTunes for more content. And find us on StoriesFromTheBorder.org or follow us @bordersstoriesaz on Twitter, Instagram, and Facebook.