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Battling Deportation Often a Solitary Journey
Without Legal Assistance, Thousands Are Expelled Unfairly, Critics of System Say

By Karin Brulliard
Washington Post Staff Writer
Monday, January 8, 2007

Shortly after 9 a.m., all rose.

The black-robed judge took his seat under the Justice Department seal and in front of the federal prosecutor. People whispering in various languages spilled out of the cramped courtroom into the hallway of the federal immigration court in Arlington County, waiting for their chance to fight to stay in the United States, agree to leave or be deported.

Salvadoran Roxana Velasco sat alone in the waiting room. Like several other people listed on that morning's 37-case docket, she had no attorney.

"The judge said I have to have a lawyer or I have to represent myself," said Velasco, 30, recalling her first hearing in October. "How am I going to do that?"

In immigration courts, there are judges and prosecutors, evidence and witnesses. The consequences can be great: banishment, separation from family, perhaps persecution at home. But unlike in criminal courts, the government does not provide free lawyers for the poor. And in what court officials deem a great concern, a growing number of people in immigration court have no legal counsel: Of more than 314,000 people whose cases ran their course in fiscal 2005, two-thirds went through on their own, or pro se.

That leaves respondents to navigate byzantine immigration law, the judges to walk them through it and, critics say, the courts to operate sluggishly and deport thousands unfairly.

"How do they possibly pick out of everything that's happened to them in their lives the legally significant points?" asked Donald Kerwin, executive director of the Catholic Legal Immigration Network Inc. "You have to know the legal standards to do that."

The issue is more crucial than ever, Kerwin said, as stepped-up enforcement increasingly sends immigrants -- including children -- to court and to rural detention centers, where lawyers are hard to find.

Velasco, who was caught by federal border police after slipping across the Rio Grande a year ago, said she immigrated illegally to be with her husband, who lives in the District. She said she called three lawyers, but two wanted $10,000 and one said she could not help. So on a recent morning, Velasco took Metro to a Ballston building, pressed the elevator button marked "PH" for penthouse and ascended to the immigration court, a suite of six small courtrooms.

Just before 10 a.m., she squeezed into Courtroom 4, her red purse carrying a hearing notice outlining her right to an attorney "at no expense to the government."

Judge Garry D. Malphrus was making his way through the master calendar docket, a list of quick preliminary hearings. Case 962 was before him: a 6-year-old girl in a sparkly skirt. To her left sat her attorney. To her right sat her father, who raised his right hand and agreed on his daughter's behalf to "voluntary departure" -- to leave the United States.

The girl's hearing lasted just minutes, and it was unclear why her father conceded that his daughter must go. Immigration lawyers say many of those who appear in the court have no right to stay in the United States -- no employer or legal relative to sponsor their visa, no claim to asylum. But Kerwin and other advocates say confused immigrants often need a lawyer to tell them this, or to determine that they have a case and then make it by, say, arranging expert testimony on a country's human rights record for an asylum case or obtaining documents that prove an immigrant is the child of a U.S. citizen.

Legal representation at the Arlington and Baltimore immigration courts -- which decide all cases from Virginia, the District and Maryland -- is higher than average, largely because of their locations near metropolitan areas. In fiscal 2005, 42 percent of cases in Arlington were completed with an immigration lawyer; that figure was 58 percent in Baltimore.

In court, judges hand immigrants a list of charities that offer free or low-cost legal services. They can help. According to the Catholic Legal Immigration Network, government data show that 34 percent of all non-detained immigrants with attorneys won their cases in fiscal 2003, compared with 23 percent without. Of non-detained asylum seekers, 39 percent with attorneys won their cases; that figure was 14 percent of those without attorneys.

To help, the Executive Office for Immigration Review, the Justice Department agency that runs the nation's 54 immigration courts, has been facilitating and expanding pro bono efforts. But volunteer legal aid services are often overwhelmed and have to turn people away. Many of the nine groups on the Arlington court's list will not take the cases of detainees or criminals.

Alberto M. Benitez, a law professor who directs the George Washington University Immigration Law Clinic, one provider on the list, said he and the students he supervises must sometimes temporarily shut down their service, which operates only during the school year, to catch up.

"Once it's open, it's a deluge of calls and walk-ins and referrals," Benitez said.

Some organizations, including the American Bar Association, have called for a congressionally ordered, court-appointed system for the indigent and mentally ill. But backers concede that the idea has little viability as tension simmers over illegal immigration. Lawyers have made little headway in courts by arguing that the absence of counsel violates immigrants' due process rights.

So now advocates focus on efficiency, saying lawyers save the system money by speeding up the process, often by telling the many immigrants without a good case to accept deportation. But no study has included a cost comparison.

The claim is unconvincing to some.

"I'm not aware of any evidence that says the system would work better if people just had access to more lawyers," said Dan Stein, president of the Federation for American Immigration Reform, which seeks a reduction in immigration. He added: "Any good immigration lawyer at this point says that every illegal alien is just basically a potential legal one if . . . you find some loophole or make the process long enough."

After 11 a.m., the courtroom was drained of lawyers. A Mexican man approached, attorneyless.

Minutes later, the clerk called 677.

"Six-seven-seven," Velasco echoed in English, standing to cross the chilly room.

"Did you find an attorney to represent you?" Malphrus asked.

"Not yet," she said through an interpreter.

"I'm not aware of any basis that you have for remaining in the United States," Malphrus told her. "The only thing I can do is grant you voluntary departure from the United States in four months."

"Okay," Velasco said, with a nod.

After a lunch break, Juan Carlos Lopez, a 17-year-old Honduran, awaited his hearing. His brother, Johnny Sandoval, 23, said two mortgages and two jobs leave him little time or money to get a lawyer for Juan Carlos, who crossed the border illegally in April.

Soon the brothers sat before the judge, who said he would postpone the case until February. But bring a lawyer, he told them.

"His aunt is a resident," Sandoval said. "Is there any way she can sponsor him?"

"I don't think an aunt is sufficient, right?" Malphrus said to the prosecutor.

"The other option is to try to get him a visa to attend school here, but you need to do that back in Honduras," Malphrus said. "Anyway, talk to lawyers about that some more."

Justice can be done without lawyers, but it is tedious, said Denise N. Slavin, president of the National Association of Immigration Judges. Paperwork-heavy cases, she said, might take two hearings with a good attorney but eight without.

"You're acting like someone at the DMV on those cases," said Slavin, a Miami judge. "Like, 'Okay, you've got your registration; you don't have your pollution certificate.' "

Pro se detainees sometimes file motions modeled on boilerplates that are passed around detention centers. Lawyers say other people have good cases but founder in court, not knowing when to object or what evidence to prepare.

"The pro se folks can be good at packing the court with family members or other supporters, but they don't call them as witnesses because they don't know how to call them as witnesses," said Christopher Nugent, a lawyer who coordinates pro bono programs for Holland & Knight in the District.

About 2 p.m., Richmond resident Yasmin Bahamon sat in the courtroom, looking lawyerly in a pantsuit. She was in court for the fifth time, pushing her asylum case. She said she arrived in the United States five years ago from Colombia after being kidnapped and released by leftist guerrillas.

Her attorney, she said, dropped her case when she could not pay. She said none of the lawyers on the court's pro bono list returned her calls.

As with the others, Malphrus said her file showed no basis for her to stay. Would she take voluntary departure?

"No. I can't," Bahamon, 33, said quietly.

"Why can't you?" the judge asked.

She froze.

"Keep trying to get a lawyer to help you," Malphrus said.

Later, Bahamon stood in the empty hallway, weeping as a court clerk comforted her.

Blinking back tears, she said, "I am going to keep trying on the same list."

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