Immigration: Civil Vs. Criminal Approach

With Independence Day media attention focused on the “border children” challenging immigration capacity and policy, some are surprised to discover that immigration is a civil, not criminal, legal action. That means that “illegal” immigrants have not broken a law, but face deportation.

The concepts are examined pretty well at the biased-but-honest website ““, which notes that “… the United States, we often refer to people who are in the United States without permission from the government as ‘illegal aliens.’ Calling people ‘illegals’ gives the false impression that they have committed a crime. However, being in the United States without documentation is not a crime. It is a violation of immigration laws, and there is no punishment for illegal presence.”

Again noting that it is certainly an activist site, you can get a good feel for how “criminal vs. civil” might impact cases, including the right to legal representation, at the website: Social Scientists on Immigration Policy: Is Immigration Law Civil or Criminal?

Immigration Illustrates Civil Vs. Criminal Rights

One huge advantage the U.S. Government has in deporting children who arrived in the country, perhaps illegally, is the difference between civil and criminal charges. The National Public Radio stories that have helped shine a spotlight on Central American children being held in jail-like conditions notes that “… the immigration court system is complicated, and many children do not have the benefit of an attorney. The government is not required to provide legal representation, as in criminal cases, because immigration is a civil matter.”

NPR offers an example of what that means: “… according to immigration lawyers, if a child is picked up by Border Patrol in Texas, the venue for the first court appearance would likely be in the Lone Star State, even if the child has since been reunited with her family in Iowa. As a result, many children miss court deadlines and are automatically placed in deportation proceedings.”

NPR also explains that “… immigration court is a traditionally adversarial process, with a prosecutor who usually makes the case that a child should be deported and, in the best case, a lawyer representing the child. But if the child has no lawyer, there is little chance that she or he will be able to stay, even if they have a valid asylum claim.”

AP: NYC Creates First ‘Public Defender For The Poor’

New York City has created what’s being called “the nation’s first system of public defenders for poor immigrants facing deportation,” according to the Associated Press and other news organizations.

Called “The New York Immigrant Family Unity Project,” the office will cover “… all [mostly financially] eligible immigrant city residents detained in the system and appearing in immigration courts in New York City or the New Jersey cities of Elizabeth and Newark,” the AP reported, adding that state lawmakers approved $4.9 million for the initiative as part of the $75 billion budget passed early Thursday for the fiscal year which starts July 1.

Quoting Oren Root, who works for the Vera Institute of Justice that is managing the project, the AP notes that “… immigration law is incredibly complex, and it is exceedingly difficult for immigrants to succeed in making a case for themselves—even if they have legal grounds for one—if they don’t have an attorney. Root added that data shows immigrants without attorneys won their cases about 3% of the time, while those with attorneys were much more likely to be successful.
“The thought that they can go up against trained government lawyers and have any chance to win their cases is just a pipe dream,” said Mr. Root, director of the institute’s Center on Immigration and Justice.


Frozen Juror Case Revived in Washington State

This is sure to become used as an example of how much the justice system loves its jurors: A state appeals court in Washington state has “revived negligence claims” by the family of an 84-year-old juror who froze to death outside the courthouse in 2007, The Courthouse News is reporting. The website says Kay Mita reported for jury duty and left the courthouse for a lunch break, never to return. Courthouse workers spotted the man outside, and at one point allowed him inside the facility under the assumption he was homeless.

Later, the courthouse closed and he had to leave. Authorities think he could not locate his car under a blanket of snow. Read the story here: Courthouse News Service

The Case For Immigration Case Representation

In a Boston Globe op-ed piece, Rachel E. Rosenbloom, of the Northeastern School of Law, makes a strong case for taxpayer-provided representation for civil immigration cases. She writes that “… it is difficult to imagine a more compelling case for appointed counsel than a 5-year-old appearing on her own in immigration court, facing off against an attorney from the Department of Homeland Security.”

She cites increased help for the children, but then she notes that “… yet even as we applaud the president for this groundbreaking program, we might ask ourselves, and our government, why a person of any age should be expected to go up against a highly trained government attorney in such a high-stakes proceeding without the benefit of legal counsel.” It’s another reason to examine how we handle civil cases, and you can read it here: – The Boston Globe