The Justice Department’s Explanation for Ending a Program That Helps Detained Immigrants Know Their Rights Makes No Sense

The Department of Justice will be temporarily ending a know-your-rights program for detained immigrants so that it can assess the program’s cost-effectiveness, according to reports from Tuesday night.

But the assessment, if the Justice Department is serious about its rationale, should be a quick one: The study has already been done. The government’s own analysis has shown that the Legal Orientation Program is a significant cost-saving measure — returning $17.8 million in the most recent year studied

You’re welcome, Mr. Sessions.

The Executive Office for Immigration Review, the branch of the Justice Department that runs the immigration courts, launched the Legal Orientation Program in 2003 “to improve judicial efficiency and assist all parties in adult detained removal proceedings.” The program is run by the Vera Institute of Justice and administered by legal aid organizations at 38 detention facilities in 16 states. The organizations routinely visit immigration detention centers — sometimes multiple times a week — and explain the ins-and-outs of the legal system to the detainees, most of whom do not have access to a lawyer. Vera held such sessions for 53,000 immigrants last year.

When detainees appear before an immigration judge armed with an understanding of the system and the options before them, the legal process is streamlined. The length of detainees’ immigration court proceedings is significantly reduced, according to a 2012 EOIR analysis of the program, and the detainees spend less time in immigration detention. That, in turn, saves the government money. Congress seems to recognize this; it appropriated funds for the program in the 2018 spending bill.

The decision comes as the Trump administration is making big changes to reduce the backlog of 685,000 cases in the immigration courts.

The Washington Post was the first to report the new policy on Tuesday. An immigration court official “said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system,” the Post reported. “He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.” The Trump administration will also be reviewing a “help desk” administered by Vera, through which the organization provides tips to non-detained immigrants.

No timeline was given for the cost review, making immigrants’ rights advocates concerned that the “temporary” end will actually last as long as the Trump administration is in power. Groups that provide trainings under the program said they were informed about the termination by Vera, and they also said they are not convinced by the Justice Department’s reasoning for the change.

U.S. Border Patrol agents detain undocumented immigrants from Central America after capturing them in a grapefruit orchard on Feb. 22, 2018 near McAllen, Texas.

“If they do a cost analysis, it is going to show extremely quickly the efficacy of the program,” said Rebecca Lightsey, executive director of American Gateways, a Texas-based group that participates in the program. “When someone goes before an immigration judge, if they know the basics of how the system works, things are going to go much smoother for that judge. The judge is going to spend a lot less time explaining to that person what the process is.”

Royce Murray, policy director at the American Immigration Council, said the justifications for halting the program don’t make any sense. “If the judge is the ultimate decision maker, it seems quite inappropriate for a person in their courtroom who is going through a removal process to have to rely entirely on the judge to have the process and his or her rights explained,” she said.

The Department of Justice did not respond to The Intercept’s request for comment, and the agency has not yet publicly announced the halting of the program.

The same judges who will now be tasked with educating immigrants on their rights will be evaluated at the end of the year based on how quickly they can move through cases. Late last month, the Justice Department announced that it would impose quotas for immigration judges to expedite the handling of cases, as the Wall Street Journal first reported. Under the new standards, which are set to go into effect on October 1, judges will be required to meet a number of metrics, including completing 700 cases a year and having fewer than 15 percent of their cases sent back by a higher court. The union representing immigration judges and immigration lawyers have both spoken out against a quota system as a threat to judicial independence.

These quotas mean that immigration judges will have financial incentive to move as quickly as possible through their dockets, Murray said. “Now, by suggesting that an immigration judge can perform the function of what an LOP provider has been doing is to create that very tension where a judge is going to have to decide, ‘How much do I explain the rights or how quickly do I move through this case?’” she added. “I fear that this will be at the expense of noncitizens.”

Immigrant detainees exercise at the Adelanto Detention Facility on Nov. 15, 2013 in Adelanto, Calif.

Just last week, former immigration Judge Andrew Arthur argued against the Legal Orientation Program in a column for the Center for Immigration Studies, a group hostile to immigration to the United States. Arthur made his case about the program’s financial inefficiency by pointing to a footnote in the 2012 EOIR analysis of the program that found that the approximate cost per person for individuals receiving orientation services was $70. He, however, neglected to note the overall finding of the report — in the 2011 fiscal year, the government saved more than $17.8 million as a result of the provision of LOP services.

Arthur also made a criticism similar to the Justice Department’s justification for ending the program: Immigration judges are required by law to inform detainees about their rights, sharing information that is in some ways duplicative of the information they receive under the orientation program. “I can remember one particular case involving an alien from rural Guatemala who was completely unfamiliar with the concept of a court of law,” he wrote. “The explanation of the proceedings, and of the alien’s rights, took over 40 minutes. There was no alternative, however. Until I had complied with these provisions, I could not proceed with the alien’s case.”

But the role the Legal Orientation Program plays is “not at all analogous to what the judges do,” said Lightsey. The lawyers spend an hour explaining the immigration court process, something judges do not have the time to do, even if they can overcome the language barrier. She noted that this holds true even when judges make a conscious effort to make sure that the people appearing before them understand their rights and the charges against them.  

People appearing before an immigration judge are not entitled to a government-funded attorney, and most appear in immigration court without a lawyer. A 2015 study of access to counsel in immigration court found that only 14 percent of detained immigrants are represented by a lawyer. Immigrants with representation were 5 1/2 times more likely to obtain relief, according to the study. The Legal Orientation Program is often detainees’ only chance to talk to a lawyer and learn about what they will face in court.

An illegal immigrant detention facility run by the ICE is seen in Raymondville, Texas.

American Gateways, one of the 18 nonprofits that participate in the program, provides trainings to immigrant detainees at three Texas centers — the Karnes Family Residential Center, the South Texas Detention Facility, and the South Texas Family Detention Center — two or three times a week, sometimes for groups of 100 people at a time, Lightsey said.

The trainings are “critical for people who are in removal proceedings because in most of these areas, like the Southwest Detention Center, that’s the only place people are guaranteed to have legal advice,” she added. “It’s also a mechanism for pro bono attorneys who want to appear before the court to connect with those individuals, so it’s really the primary lifeline for basic information about legal services for people who are detained.”

Top photo: Immigrants wait in a processing cell at the Adelanto Detention Facility on November 15, 2013 in Adelanto, Calif.