Among the Trump administration’s sweeping changes to the U.S. immigration system are new policies that threaten to limit pro-bono legal services in immigration court.
In the Bay Area, a group of lawyers who volunteer in immigration court through the San Francisco Bar Association’s Attorney of the Day program say a recent memo from the U.S. Department of Justice could jeopardize their work aiding immigrants who don’t have legal representation in court.
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WATCH HEREUnlike other court systems in the country, respondents in immigration court are not guaranteed government-appointed counsel, so they’re forced to hire costly private attorneys or represent themselves.
In the 3.6 million pending immigration cases, just 30% of respondents have legal representation, according to data from Syracuse University's Transactional Records Access Clearinghouse (TRAC). For immigrants – many of them juveniles – who don’t speak the language or understand U.S. laws, navigating the immigration court system can be an uphill battle
The Attorney of the Day program is designed to help fill that void.
“Historically, our program has been welcomed by the court and by individual judges that have been supervising the court,” said Milli Atkinson, the legal director of the Immigrant Legal Defense Program for the San Francisco Bar Association.
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Atkinson helps oversee the Attorney of the Day program, and said its team of volunteer attorneys are not respondents’ official legal representatives but appear as “friends of the court” to help proceedings run smoothly and ensure immigrants know their rights and understand the daunting legal path ahead. They also help connect immigrants with local pro-bono legal services that might be able to take their cases.Â
“For many people in immigration court, this is their one and only chance to speak to an attorney about their case and have some of their questions answered,” Atkinson said.
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SIGN UP But attorneys like Atkinson fear a recent DOJ memo will upend their work.
The memo reinstates a policy enacted at the end of President Trump’s first term but later rescinded by President Biden. It says anyone appearing as a friend of the court can’t engage in legal advocacy unless they’re the respondent’s official attorney.
The memo argues that someone appearing as a friend of the court may not abide by the court’s rules of professional conduct and could confuse immigrants into thinking they have legal representation.
“These requirements protect respondents, attorneys, and immigration judges and help to ensure the integrity of immigration court proceedings,” the DOJ’s 2019 memo, which was recently reinstated, said.
The memo goes on to say that anyone offering legal advocacy as a friend of the court “would be fundamentally at odds with the nature of an amicus curiae [friend of the court] as an aid to the court, rather than as an aid to one party or the other.”
Atkinson said the policy could deny immigrants due process in court. She also doesn’t buy the reasoning that attorneys of the day would violate the court’s rules, and said they make it explicitly clear to respondents that they’re not providing full-scope legal representation in their cases.
“That is a little misguided in my opinion, just because we are still bound by the professional code of ethics,” she said.
Since the DOJ’s memo went out in February, Atkinson said they’ve continued to send lawyers with the Attorney of the Day program to immigration court. So far, she said, San Francisco Immigration Court judges and government attorneys haven’t objected to their presence.
NBC Bay Area sat in on multiple court hearings since the memo went out where judges welcomed and thanked attorneys from the program. Immigrants who consulted with attorneys of the day also expressed their gratitude.
“I don’t know anything about laws and in a foreign country, much less, because the laws are very different,” said respondent Divier Zavala, who said in Spanish he fled violence in Columbia three years ago. “So, having someone that can guide me on this topic is fantastic.”
But Atkinson fears the winds could shift at any time and worries volunteer attorneys will be turned away or potentially targeted with sanctions.
She also said while the memo specifically references attorneys, it’s unclear whether it could potentially impact other people appearing as friends of the court, such as social workers and “other non-attorney support.”
The Department of Justice did not respond to NBC Bay Area’s request seeking clarification on who exactly might be impacted by the policy and how the agency planned to enforce it.
