Immigration law is complex and for those in detention, it's hard to find an attorney to represent them. Advocates say without a lawyer, most end up getting deported.
Watch video
ELIZABETH--Aman Raza sits in a detention center, not far from Newark Liberty International Airport, where he has been held since fleeing Pakistan after an angry mob attacked the mosque of his minority Ahmadiyya sect in December.
"There were more than 5,000 people," he said of the crowd storming the gates, recalling the violence during a recent asylum hearing. "They threatened to kill us."
Unlike most of those in detention, Raza, 26, was not on his own as he pleaded his case before an immigration court judge. He had an attorney.
According to federal data, nearly 70 percent of those detained in New Jersey in immigration removal proceedings have no such representation, said Lori Nessel, director of the Seton Hall University School of Law Center for Social Justice.
"It's a system that's not very accessible," she remarked. "The problem is we have such a large population of detained immigrants and a paucity of pro bono lawyers, non-profits and funding."
Unlike those tried in criminal court, undocumented immigrants in this country have no right to an attorney if they cannot afford one. Nessel said individuals in removal proceedings may hire counsel at their own expense--if there is no delay to the government--but many simply cannot afford a lawyer.
"They face an incredible uphill battle without representation in dealing with complex laws," she said, adding that it is near impossible to gather witnesses and evidence in support of one's case when someone is detained.
Nessel said basic due process requires that people be given a meaningful opportunity to understand the charges against them and the chance to present a claim that they are legally entitled to stay in the country.
A report she co-authored last year for Seton Hall's Immigrants' Rights and International Human Rights Clinic found those appearing in immigration courts are more likely to prevail if they have legal representation. But two-thirds of those detained were without attorneys at any point in their removal proceedings. At the same time, non-profit organizations represented significantly fewer detainees than it did those who were not being held, regardless of their caseload.
"This means that adults and even unaccompanied children who cannot afford to hire counsel must argue on their own against trained government prosecutors," the report said. "Considering the potentially life-threatening consequences of a removal order and the very limited process available in immigration court, experts have likened removal proceedings to trying 'death penalty cases in traffic court.'"
NJ chief justice: stop arresting immigrants in courthouses
Immigration attorney Harlan York of Newark said it's even worse elsewhere in the country, where U.S. Immigration and Customs Enforcement, or ICE, maintains several contract detention facilities in remote locations. Court sessions for detainees are scheduled in the facilities where they are held, making it difficult for attorneys to get to hearings.
"They're not accessible for lawyers," said York. "Look at the Stewart Detention Center. It's in Lumpkin, Ga. It's literally in the middle of nowhere."
The private prison in Lumpkin, operated under contract to ICE, is more than a two-hour drive from Atlanta for any immigration attorney willing to make the trip.
"The judges in Stewart never grant anything," said York. "They virtually grant nothing."
Indeed, according to data collected by the Transactional Records Access Clearinghouse, or TRAC, a non-partisan research group at Syracuse University, nearly 95 percent of all asylum cases were denied by the judges in Lumpkin between 2011 and 2016. In comparison, immigration judges nationwide denied 49.8 percent of all asylum claims during that time.
A study by the American Immigration Council found only 6 percent of those held at Stewart were represented by lawyers between 2007 and 2012.
The pace of removal hearings has seen little change since the end of the Obama administration. According to data released by TRAC on Friday, the latest available court records through the end of March 2017 shows that despite the stepped-up enforcement of immigration laws under the Trump White House, the pace of immigration court filings has remained steady. What has changed is the number of individuals being detained by Immigration and Customs Enforcement while their cases are pending.
TRAC said 54 percent of the court cases under Obama involved detained individuals. "This was true for only a quarter of Trump's cases. Most of the remaining individuals were still detained," TRAC reported.
Advocates rally at Elizabeth Detention Center
No matter where a case is heard, few held in detention are likely to prevail against removal without legal representation, said Lauren Major, senior detention attorney for American Friends Service Committee in New Jersey. But even in New Jersey, where detention facilities are far more accessible than the one in Lumpkin, it can be hard to for those facing deportation find legal representation while they are locked up.
"It takes a lot more resources to do a detained case than a non-detained case," Major explained. "They move quickly and there's not a lot of time to put together the evidence."
She said most non-profit organization and attorneys doing pro bono work have limited time and resources, and devote those resources to handle more people who are not being detained.
Earlier this month, New York Gov. Andrew Cuomo said he would allocate money in the fiscal 2018 budget to create a legal defense fund to ensure all immigrants have access to representation. A spokeswoman for Vera Institute of Justice, which helps provides lawyers to those detained in New York, said Los Angeles, San Francisco and Chicago are in various stages of working on similar programs.
A spokeswoman for the Executive Office for Immigration Review, the office within the U.S. Department of Justice responsible for adjudicating immigration cases, said it has sought to improve access to "legal information and counseling for aliens in proceedings."
Officials said that since 2003, EOIR has had a legal orientation program to improve judicial efficiency in the immigration courts, and to assist detained individuals and others involved in detained removal proceedings to make timely and informed decisions.
EOIR also contracts with nonprofit organizations to provide group and individual orientations, self-help workshops, and pro bono referral services for detained individuals in removal proceedings, the spokeswoman said.
In addition, a list of lawyers who do pro bono work is provided to all individuals in immigration court proceedings, and includes non-profit organizations and attorneys who have committed to providing at least 50 hours per year of free, or pro bono legal work before the immigration court.
Recalling a mob attack
At the Elizabeth Detention Center, an ICE contract facility that can hold 300 men and women, hearings are held in a small, low-ceiling courtroom on the first floor of the former cement masonry warehouse on an industrial tract just off the New Jersey Turnpike sandwiched between a FedEx terminal and a sprawling supermarket warehouse.
The Elizabeth Detention Center, a private prison under contract with U.S. Immigration and Customs Enforcement that holds immigrants awaiting removal or asylum proceedings. (Marisa Iati | NJ Advance Media for NJ.com)
Malick A. Diop, a New York attorney representing Aman Raza, noted that few attorneys want to go there because of the time and travel involved, while most of those in detention there cannot even afford representation. They are left to fend for themselves.
"The judges don't defend you," he said.
As he presented his client's case one morning, Immigration Court Judge Mirlande Tadal appeared stern in her black robe and reading glasses perched low on her nose.
Before she was appointed as an immigration judge by former Attorney General Janet Reno in 1995, Tadal worked for Travelers Aid Immigration Legal Services in New York and also served as an attorney investigator for the New York Commission on Human Rights.
Tadal lectured Raza on how to answer questions. "Yup is not an answer. Shaking your head is not an answer," she said.
"Yes, your honor," replied Raza, clad in a grey short-sleeve shirt over a white T-shirt.
The 26-year-old Pakistani was taken into custody upon arriving in the United States in December. Raza, who studied oil and gas engineering in London, is a member of the Ahmadiyya religious community, a persecuted minority not recognized as Muslim by other Muslims. He told the judge that in December, he was inside a mosque in his village when a mob attacked.
"They got in. Broke in the main gate. They burned everything. They burned the Koran, your honor," he said.
Raza claimed the police did nothing, and claimed the government of Pakistan has turned a blind eye to the harassment and violence against the Ahmadiyya.
"We cannot profess our faith orally or in writing," said Raza, whose travel documents all identify his religious affiliation.
According to Human Rights Watch, Pakistan's government has allowed extremist groups to target the Ahmadiyya community. News accounts from Pakistan have documented the attack on a Ahmadiyya mosque in December.
"I cannot go back. I cannot even imagine going back," Raza testified.
Diop, in his summation, said the basis of U.S. values is that people should be allowed to practice their religion without fear.
"If someone needs to hide to pray, that's persecution," he said.
But Robert Miller, assistant chief counsel for the Department of Homeland Security who represented the government in the proceedings, challenged Raza's testimony, calling it "rehearsed" and told the judge there was no evidence that the young man was in any real danger.
"Whatever mistreatment he suffered does not rise to the level of past persecution," Miller said. "As far as the attack on the mosque...it's a stretch to say the government had any involvement."
The judge said she would issue her ruling in May.
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.