Pro Bono Lawyers Are NOT 'Public Defenders' in Removal Proceedings

By Dan Cadman, March 28, 2017

The Miami Herald recently published an article, "Free 'public defender's office' would represent immigrants in deportation proceedings", that lays out the nascent effort — spearheaded by former federal judge Shira Scheindlin, under the name "American Immigrant Representation Project" (AIRP) — that its participants hope will eventually establish itself sufficiently to become nationwide and well-entrenched enough to provide representation to most if not all aliens in removal courts.

Judge Scheindlin is well known for having presided over a long-lasting and costly Freedom of Information Act trial in a lawsuit filed by various migrant activist groups against the Obama White House (irony of ironies) in order to obtain information about the Secure Communities program. For a long time that administration tried to sell the program as "voluntary," saying that state and local law enforcement organizations could opt out if they so chose, only to up-end that claim and move forward with nationwide implementation without regard to those organizations' desires.

Scheindlin consistently (and rightly, in my opinion) ruled against the government's claims of privilege in the FOIA case, resulting in discovery of the truth through production of government documents: Nothing about the construct of the program could ever have been construed as optional. This was one of the first in a long series of deceptions where the Obama administration was concerned. In the end, the Obama administration got out of the corner it had put itself in by simply ordering that Secure Communities be terminated in favor of the "Priority Enforcement Program" (PEP), which was as lame and ineffectual as its cheer-leading acronym.

Seeing Scheindlin's enthusiastic participation in this new venture, one wonders whether she really received that case in the ordinary rotation of assignments handed out to district court judges by their chief. (One cannot help but note the susceptibility of such a system to a little bit of logrolling when judges see a case arise that they want to preside over. Such a thing would be easy to finagle in a district court as active as the one in New York City where the FOIA suit was filed. But that's neither here nor there at this point.)

As to AIRP: I have no intrinsic argument with the notion behind this pro bono effort provided that it is funded wholly and completely by the private sector, as the law requires. Therein lies the rub. The article is already tagging this fledgling effort, which may or may not succeed, as a "public defender's office", a notion that I strongly suspect was put into the journalist's head by the participants he spoke to.

During the Obama administration, various programs and projects were conjured up that teeter-tottered on either side of the line in the statutory mandate that representation be "at no expense to the government". The Executive Office for Immigration Review provides money for a variety of legal representation training and "know your rights" efforts of various sorts, and the Legal Services Corporation (a nonprofit organization created and funded by Congress), while it doesn't actually send lawyers into removal proceedings, does provide a host of other services to certain illegal aliens seeking to obtain lawful status.

Note, also, that a number of municipal governments have decided to pony up large amounts of their taxpayers' money to establish a pool to be used to represent aliens in deportation proceedings.

All of this is being done not just to legitimize the right to counsel in removal proceedings — that has always been the law, and rightly so — but to inculcate in the public mind that it is somehow a fundamental right of illegal aliens to be given lawyers by the government so that they may fight that self-same government's efforts to deport them. It's a place I don't want my all-too-frequently squandered tax dollars to go.

As I've noted before, it's a curious thing how progressives twist and turn through the dark alleys of the mind in order to arrive at the desired end, no matter how inconsistent the positions and logic from one issue to the next. They have managed to persuade any number of state, county, and city police agencies to disdain compliance with federal immigration detainers, because they are issued in pursuit of a deportation hearing that, they emphasize, is a civil matter. (I have often pondered how and why the nature of the proceeding should be relevant, since there are so many other non-criminal legal actions they have no problem with honoring, such as administrative warrants issued by parole boards against violators, non-judicial military processes to take custody of deserters arrested by police, even civil contempt of court proceedings, which result in the police locking up the subject of the contempt order.)

Yet, when it comes to representation of aliens in removal proceedings, these progressives and open-borders advocates repeatedly choose to blur the line they felt was so bright previously, and hasten to make analogies between criminal and deportation proceedings in order to argue that since criminal defendants receive public defenders, so aliens should too.

The argument is specious: The underlying constitutional rights and privileges between criminal defendants and illegal alien respondents are fundamentally different. I'm not buying it, and I hope my tax dollars won't ever have to either.