A criminal defense attorney travels to Immigration Land
A couple of years ago, I volunteered at a weekend workshop for immigrant “Dreamers”—those people you’ve heard about in the news who were illegally brought to the US as infants and are now in their 20s. I enjoyed the workshop so much that by the time I left I wanted to practice immigration law. I loved hearing the Spanish, seeing the amazing young people, helping immigrants achieve the American Dream. Most of my legal experience was in criminal law, and seeing a young adult with no convictions and straight As did my heart good.
So off to Immigration Land I went. A friend of a friend helped me get started, throwing me various bits of contract work and showing me the ropes. Suddenly, there I was, going to court, writing appeals, the works. And what I quickly discovered is that one does not dabble in immigration law. It’s fantastically complex, and trying to peer at the hairs they split could make you go blind. Plus, if you lose, your client doesn’t go to prison, they go to a country where they are pretty likely to die. As in: die. Be dead.
So I chickened out and came back to crim law. But along the way I met enough immigration lawyers that I started doing some post-conviction relief work for their clients, and I volunteered for a couple of pro bono immigration cases.
Even this tiny bit of immigration “experience” sets me apart from the average criminal attorney, for whom immigration law is a mysterious black box and all they know is “talk to WDA.” That’s all I know, too, but I’ve visited Immigration Land just enough to have a few postcards to share from my travels. I think of myself as a tourist who went to Europe and saw 9 countries in 10 days. Here’s what I’ve learned.
I love the Constitution
Seriously, love it. Have you ever wondered what crim law would look like without it? Okay, I know, you see that every single day. So do I. But really, what if it wasn’t there? What if the accused had no right to counsel, no speedy trial, no jury, none of it? Okay, a few shreds of Due Process for decency’s sake, but that’s all.
There’s no Constitution in immigration law. Not much of one anyway. The Constitution does not apply to borders, and, thanks to our old friend the Legal Fiction, much of immigration law is considered to be “at” the border. Clients have no right to a lawyer, since immigration law is “merely” civil. I have sat in court and watched person after person, with no legal training, no English, and no interpreter, try to defend themselves against deportation. I’ve seen a judge prevent an interpreter from interpreting, even though the interpreter was sitting right there. I’ve seen continuances that go years into the future, once because the interpreter didn’t show up, a few times because the judge was out sick. I’ve seen people locked up without bond who have committed no crime at all. I’ve seen people locked up on obviously unconstitutional searches and seizures. Yes, I wish the criminal courts would follow the Constitution more closely, but boy oh boy am I glad it’s around at all.
The detention center is a hole
The Northwest Detention Center is the worst jail I’ve ever seen, hands down. It sits out on the Tacoma Tideflats, over a Superfund site. It is surrounded by concertina wire. There is no bus service. The only parking is for staff and government lawyers. There are no coffee or sandwich shops nearby. It is privately run by a national prison corporation, and Congress has mandated a quota of inmates. You read that right: The detention center is required, by law, to fill a certain number of beds each night.
The front door greets you with numerous signs telling you what illnesses you may contract if you go inside. The architecture is Late Brutalist, constructed of whitewashed concrete blocks. Despair oozes from the walls. Everything about the place says “Danger. Keep out.”
But you enter anyway, because you need to get to the courtroom inside. You go through security screening, which is similar to jail screening. Then you are buzzed through a heavy locked door into a dismal waiting area that compares unfavorably to the airport. You make pleasant small talk with the guard to charm your way through the next locked door, into a narrow hallway lined with benches. On those benches are potential deportees, color-coded jail garb, at various levels of misery. Finally you are admitted through the third locked door into the courtroom. I should mention, if it’s not obvious, that the courtroom is open to the public.
I should also mention that plenty of people housed there have legal status in the US. Many of them are Legal Permanent Residents, and notice that first word there is “legal.” Not all, not most, but many.
There’s also a court in Seattle. I can’t call it a courthouse. It’s a suite in an office building downtown. No locked doors, but same screening, same dismal waiting area.
All of the courtrooms are beautiful, with churchy pews for the audience, a wooden railing with a proper gate, big gleaming counsel tables, comfortable chairs, and top notch electronics. The courtrooms are painted in a rich teal that exudes both power and calm. The “judges” wear robes (more on the air quotes in a minute), and the staff operates with hushed efficiency.
It’s not a real court
They hate it when you say this, but it’s true. Immigration courts are administrative bodies, not courts. The judges answer to the Attorney General, and ultimately to the president. They are employees of the executive branch of government, and if they stray from government policy, they are punished. They have no judicial independence whatsoever.
My own idea for immigration reform (with apologies to the people who actually know what they’re talking about) is to give these “courts” both judges and lawyers. Remove the air quotes and watch the justice burst forth.
It looks a lot like a criminal case
There’s a government attorney at every hearing. They’re not prosecutors, but you’ll be forgiven if you call them that. They sit in court typing on a computer. Their offices are upstairs. They are cut from the same cloth as many prosecutors—clean-cut well-dressed law-and-order types, who make a nice living and go home at 5 pm.
There’s an Information, called a Notice to Appear. It sets out reasons why the client should be deported and cites to a statute. There are hearings that look a lot like a pretrial, where the judge and the defendant try to figure out how to resolve the case. And there are trials, with witnesses and exhibits and all the rest.
Well, not all the rest. The Rules of Evidence, for example, those are nowhere to be found. The right to discovery, very limited. The presumption of innocence, gone. The burden of proof—often squarely on the defendant.
It’s all very secret
The courtrooms are in the middle of nowhere, behind three locked doors. If you appeal, you have no right to know who the appellate judge is. The government doesn’t have to turn over “Brady” material. You can’t look at the court file in your own case without (I swear this is true) a Freedom of Information Act request.
Words don’t mean what you think they mean
In Immigration Land, you can be paroled without ever being convicted. A Theft 3 can be a felony. In fact, it can be an “aggravated felony.” Same for DUI. But burglary, PSP, even robbery, those are okay. I mean, not okay, but not necessarily anything to get excited about. I’ve learned to question every word immigration lawyers use, to make sure they mean what I think they mean. The foreign language in Immigration Land is often not Spanish or Somali, but CFR.
While I’m on it, DUI is a big deal in Immigration Land. A defendant can find himself locked up with no possibility of bond if he has a single DUI. And it doesn’t need to be a recent conviction. Immigration Land has no statute of limitations, so a DUI from 20, 30 years ago can get a guy locked up and then deported. He can try to show that he’s rehabilitated, with treatment and such, but there’s no guarantee the court will believe it.
The culture is heavily bureaucratic
One form required me to write my client’s last name, but not first name, in all caps. Some Notices of Appearance need to be filed on green paper. Others need to be filed on blue paper. Appeals require a rainbow of colored pleadings.
If the government closes its books for the fiscal year a few hours early on the day of your deadline, they will not accept your payment, so you will held responsible for a late filing—and your client could be deported. If you mail your pleadings to D.C. on time but a snowstorm back East shuts down the mail service for a day, you will be held responsible for a late filing—and your client could be deported. In all cases, you should plan on the government losing your pleadings—causing your client to be deported.
When you send the government a check, the instructions tell you (this is verbatim): “Make the check or money order payable to U.S. Department of Homeland Security. NOTE: Spell out U.S. Department of Homeland Security; do not use the initials ‘USDHS’ or ‘DHS.’” Are they seriously telling me my client could be deported if I don’t spell out “DHS”? Yes.
The stories are worse
Okay, the crim stories are terrible. You could tell me stories that would curl my hair, I know, and I believe you.
I myself work mostly in King County Juvenile Court, and I’ve done all the standard rotations besides. So I’ve heard a lot of bad stories: horrific parenting, exploited kids, brutal husbands, crazy cops. I know all about misdemeanor murders and throwaway children. I’ve seen the autopsy pictures with “post-mortem insect activity.” I’ve had multiple teenagers explain to me how they felt as their best friend lay dying in their arms. Okay? I know from bad stories.
And I’m telling you, the immigration stories are worse. I don’t know how the immigration lawyers do it. Entire countries with nowhere safe at all. People born into war. A child who fled after her brother was shot by gangs on the way to school. Families for whom three days on “The Beast” train in Mexico, followed by a walk through Arizona, is a rational life choice. The little boy who was left alone and hungry in a cave for days at a time. A cave. No one in juvy has ever had a cave story.
There’s no humanity to it
The criminal courts can be brutal, no doubt. Awful things happen every day, for lots of reasons. But there is generally someone somewhere trying to prevent the awfulness—a dedicated defense attorney, a helpful clerk, a reasonable prosecutor, a creative judge.
Not in Immigration Land. Yes, the attorneys are incredibly dedicated, but most defendants don’t have one. The clerk will reject a filing if it isn’t two-hole punched. The judges can be fired if they don’t meet processing quotas. It’s normal for prosecutors and even judges to file bar complaints against defense attorneys. And defense attorneys must file bar complaints against colleagues in order to make certain motions (a fact our bar association is well aware of).
Kids in particular take it on the chin. Courts do not assume that “kids are different,” as SCOTUS keeps telling us. The stories you’ve heard of 8-year-olds sitting in immigration court—legs dangling from the chair, with no lawyer, no parent, no English—are true. For asylum petitions, some young defendants have submitted not written declarations detailing persecution but crayon drawings of men with guns.
The line I’ve heard is that immigration involves “death penalty cases in a kangaroo court.” Judges have a high turnover rate, because even though they are judges (well, “judges”), they are powerless to stop the inhumanity.
Immigration lawyers are cool
I’ve been pleased to find that immigration lawyers are a really nice group of people. For the most part, they are well-read, well-traveled, and speak several languages. Many of them are immigrants themselves, and many have Peace Corps experience or similar. Immigration lawyers know a lot about politics and wars and history in far away places. They have a good grasp of the world as it is. They are grounded and humane and care as much about justice as you do. Not more than you, because you care a lot, but as much.
My purpose here is not to tell you how awful Immigration Land is, although I wouldn’t mind if you came to that conclusion. My purpose here is to encourage you to become more familiar with immigration law. You don’t need to practice it, you probably shouldn’t practice it part time, but at least reach out to the immigration bar. Meet them, work with them on your cases, have a drink with them and commiserate. I promise, they want to meet you too. So pick up the lingo, learn what they mean by “parole” and “felony” and “USC,” and develop a sense of how crim law and immigration law increasingly overlap, especially since Padilla. Don’t be scared of it, don’t treat it like it’s behind an Iron Curtain, mysterious and unknowable, other peoples’ problem.
I hope this glimpse into my travels to Immigration Land will inspire you to take a similar journey, to engage in a cultural exchange that will strengthen both areas of law and assist all of our immigrant clients. Bon voyage!
Sole practitioner Kelly Vomacka practices trauma-informed law in Seattle, focusing on juvenile defense, with forays into adult criminal defense, post-conviction relief, and family law.