CLAD IN A GREEN JUMPSUIT and chained at the hands and the feet, Ismail Garces Avila is sitting in immigration Judge John Furlong’s windowless courtroom, waiting for his bond and asylum hearings.
The 25-year-old Avila was jailed in September after crossing the border illegally after fleeing what he claimed was political persecution in his native Cuba. Despite the complicated nature of his immigration case, Avila has no attorney, which makes his bid for asylum very difficult.
Immigrants facing deportation have no right to counsel in the United States, but having an attorney is often a key determinant of what happens to them.
According to a study overseen by US Court of Appeals Judge Robert Katzmann, only 3 percent of detained immigrants prevail in their cases without an attorney; the number rises to 18 percent with an attorney.
“For low-income immigrants,” Katzmann wrote in the Fordham Law Review in 2018, “having an attorney is the difference between being allowed to stay in this country and suffering catastrophic deportation.”
Overall, Katzmann found, 63 percent of noncitizens in deportation proceedings nationwide do not have legal representation, while 37 percent do.
In the Boston immigration court over four days in December, the numbers were just the opposite. According to information gleaned from hearing calendars, 39 percent of the 714 individuals going through the hearing process had no attorney, while 61 percent did.
The actual percentage in Massachusetts may be even higher. Immigration court research gathered by Syracuse University’s TRAC Reports indicated 73 percent of the immigrants with cases pending as of February 2019 had legal representation.
All cases that go through immigration court are for removals. Usually those fall under two umbrellas. Either the immigrant is having some kind of benefit revoked, such as a family-based green card, asylum, or visa — or they’re caught crossing the border or reentering the country illegally, like Avila.
A major hurdle to finding legal counsel is cost. There is no set rate for attorney services, but several lawyers said rates range from $175 to $450 an hour.
“A big barrier to counsel is money, especially when the breadwinner is detained and not earning any,” said Elizabeth Badger, a senior staff attorney with the Political Asylum/ Immigration Representation Project (PAIR), a Boston-based organization that provides free legal services for asylum seekers and detained immigrants. “Our waitlist for signing individuals for counsel to our pro bono network is immense.”
Law clinics at universities also provide access to legal representation, according to Mahsa Khanbabai, head of the New England chapter of the American Immigration Lawyers Association. Schools such as Boston University, Northeastern, Boston College, and Harvard, she explained, have students who work on cases under the guidance of clinical professors.
Khanbabai is working pro bono on the case of a young girl who is a Syrian refugee resettled in Europe who is seeking medical treatment in the US. Swamped with her workload, Khanbabai worked with Harvard’s clinic where students researched legal restrictions on contacts with terrorism groups, something essential to the client’s case.
US law bars immigrants who have connections to terrorism groups, but the law defines contact to include people who have been captured, tortured, made to pay bribes, or required to do military service for these groups. Any contact counts, even if the person, as the Syrian refugee claims, is a victim of the terrorist group. It’s is the kind of complex scenario that most people could not navigate without an attorney.
Susan Church, a Cambridge immigration attorney, said the type of cases being argued in Boston’s immigration court may also be part of the reason why more people in Massachusetts are getting counsel.
“We have people seeking green cards, married to a US citizen, applying for adjustments in their status,” Church said. “They’re more established, financially. The cases are more winnable than those at the border.”
Church also said immigrants in Massachusetts seek out counsel more because their odds of winning a case here are so much higher.
“We have a sea of judges that are often more open to asylum claims than courts in Georgia and some courts on the border,” she said.
Without a dollar to his name, Avila, the immigrant from Cuba, could not afford an attorney. Still, in seeking to bar Avila’s release from jail on bond, the Department of Homeland Security was required by a recent court decision to prove that Avila is a flight risk or a danger to the public. Homeland Security’s attorney, Jason Chandler, was unable to do that because Avila’s only crime was entering the country illegally to live with his cousin.
Judge Furlong released Avila on $1,500 bond to be paid by his cousin. Avila will also be required to wear a GPS ankle bracelet so his movements can be tracked.
During the asylum hearing, Furlong realized that Avila entered the United States after July, just after a federal rule went into effect requiring all asylum seekers to have applied for asylum (waited, and been rejected) in each country they passed through on the way to the southern border. The requirement is part of a new slew of rules known as the Migrant Protection Protocols.
Avila wasn’t aware of the federal rule. There are other steps he must also take to win asylum, and Furlong tried to help by outlining them. He said Avila must provide information showing that either he was tortured in Cuba, or that he would be tortured or harmed upon returning. Furlong said family and friends could testify on Avila’s behalf, and that news articles, medical records, and police reports from Cuba could also be used in his defense.
When Avila started to explain that he did apply for asylum in Mexico, Furlong holds up his hand and says that Avila can explain what steps he took at his next hearing. He recommends Avila find an attorney.
The same week as Avila’s hearing, Immigration Judge Todd Masters heard the case of Aaron Soe, a Liberian immigrant who overstayed his visa and was fleeing human rights abuses in his home country. Represented by PAIR Project, he was given a bond of $1,500.