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Legal funding for immigrants in detention: A debate that divided this wealthy Md. suburb returns

Residents gathered at a hearing in Montgomery County last year to debate a legal-defense fund to serve immigrants facing deportation. (Katherine Frey/The Washington Post)

Local governments across the Washington area are expanding legal defense funds for immigrants facing deportation, reviving a debate that has divided advocates, officials and residents in Maryland’s largest jurisdiction.

As the Trump administration deepens its crackdown on immigrant communities, introducing a fast-track deportation process to bypass immigration judges and raiding work sites across the country, local governments have doubled down on efforts to protect their undocumented residents.

Prince George’s County, one of the earliest jurisdictions in the region to introduce such an initiative, increased funding for an immigrant services program from $200,000 to $300,000 in its most recent budget. Baltimore City is shelling out $150,000 for the next fiscal year, while Fairfax County recently approved $200,000 for a pilot program.

In the District, Mayor Muriel E. Bowser (D) increased funding for a legal aid program from $900,000 to $2.5 million. More importantly, advocates say, Bowser removed a clause that had prevented organizations from seeking the grant money to represent detained adults.

Advocates were told at a July 22 meeting that the clause would be removed, said Kelly White, the Detained Adult Program director at the Capital Area Immigrants’ Rights (CAIR) Coalition, which leads the legal defense efforts of low-income, detained immigrants across Washington.

This marks a significant policy shift in the District, where the mayor has previously rerouted funding meant for the representation of detained adults to other immigrant service programs, prompting criticism from advocates as well as legislators. In the wake of this change, the CAIR coalition is applying to the D.C. grant program for the first time, White said.

Now, advocacy groups hope to score a similar victory in neighboring Montgomery County, where nearly 1 in 3 residents is foreign-born.

Montgomery officials recently added $170,000 to a $370,000 pilot program to fund legal defense for immigrants, making it the second-largest budget allocation in the region after D.C.

County Executive Marc Elrich (D) wants to make it easier for advocates to access some of that new funding to help immigrants facing deportation.

Advocacy groups say the county’s current list of exceptions attached to the funding means the money can’t reach those who need it most: individuals detained by Immigration and Customs Enforcement.

As many as 9,000 immigrants in Montgomery are facing deportation, around 90 of whom are detained by ICE every year, officials say.

The CAIR coalition, which was originally slated to receive a $374,000 grant from the county last year, rejected the money after the County Council lengthened the list of criminal convictions that would disqualify an immigrant from receiving aid.

According to White, the exclusions were the most extensive among similar programs across the country and would have disqualified 75 percent of detained immigrants from the county.

In September 2018, Montgomery’s County Council awarded the funding to three other groups that provide legal counsel to immigrants subject to deportation but not necessarily in ICE custody. Among the dozens of clients served by Ayuda Inc., Kids in Need of Defense, and the Hebrew Immigrant Aid Society through this funding, only one individual was in detention.

“These groups all do good work, but ultimately, the money did not move the ball in terms of getting more detained immigrants represented,” said Nicholas Katz, a senior manager of legal services at CASA, a Latino and immigration advocacy group. “And let’s be clear: Those are the people in the most need.”

According to advocates, it is harder for immigrants in ICE detention to reach lawyers, file paperwork and generally access legal counsel. People detained because they are in the country illegally are not entitled to public defenders because it is a civil and not criminal violation.

Immigrants in detention are also more likely to have been separated from their families, and their cases are frequently expedited, advocates say.

At Elrich’s urging, the council recently approved an additional $170,000 for “Legal Representation for Residents Detained for Deportation Proceedings.”

The county executive also wants to loosen the strings attached to that funding. Elrich’s staff has suggested that instead of using the list of criminal exclusions when awarding grants to organizations that help immigrants, the county should state that funds cannot be used to represent “undocumented immigrants who have been convicted of serious criminal offenses.”

While advocates approve of this change, council member Hans Riemer (D-At Large) said he has reservations.

“The intent is similar but it’s more ambiguous. This can create challenges when everybody involved does not know what the rules are,” he said.

Montgomery State’s Attorney John McCarthy (D) noted that “serious crimes” is not a legally recognized term.

“Reasonable minds can differ on what is considered ‘serious,’ ” he said. “I don’t think the suggested language gives any guidance whatsoever.”

McCarthy became a target of activists last year when he supported a move by the council to add 40 crimes to the exclusion list. In an interview Tuesday, he maintained that “glaring omissions” to the original list would have placed public safety at risk.

Advocates counter that most immigrants are detained for minor offenses and that even when they commit more significant crimes, the council should not decide whether they get access to a lawyer.

“When you conflate criminal history and the immigration system, it’s extremely problematic. For one, minority communities are disproportionately policed,” Katz said.

“Immigration judges already have the rubric to decide whether someone’s criminal history is a problem for them to stay, so they can make that decision,” White added. “What we’re doing here is preventing due process.”

Montgomery County Council members will discuss distribution of the $170,000 after they return from recess in September. When they do, they will likely be met with protest not only from advocates seeking more liberal rules but also from residents opposed to additional funding.

Anti-immigrant sentiment in the suburb has been stoked in recent weeks by a spate of violent crime, including the alleged rape of a young girl by two men who according to ICE were in the country unlawfully at the time of their arrests.

“I’m very upset. They’re putting illegal criminals over citizens,” said Shawn Nie, a Montgomery resident who works in biological research. Many of his friends protested the legal defense fund at public hearings last year, he said, and he thinks they would be prepared to do the same this year.

“If they had announced this,” he said. “Oh man, a lot of people would have been very, very angry.”

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