Immigrants and Refugees Need the Right to a Lawyer

_{Ellis Island Great Hall, where immigrants were processed}

Within twenty-four hours of President Trump’s executive order barring the admission of immigrants and refugees to the United States, tens of thousands of Americans congregated in nearly a dozen airports across the nation to protest. Among the demonstrators were lawyers hailing from legal aid organizations and private firms. They went to help individuals from the designated countries that were mid-journey when Mr. Trump signed the order and faced the prospect of being forced to return to the places from which they came. As a result of these lawyers’ swift actions, within thirty hours, four federal judges had issued temporary stays on the ban. Some travelers who had been detained upon arrival were released, others were held in custody, and others still were returned to their places of origin. Lawsuits ensued. On February 9, the Ninth Circuit Court of Appeals refused to reinstate the order. The president responded with a tweet promising further legal action.

This was not the first time in American history that lawyers have flocked to ports of entry to represent immigrants barred from entering the country for legally precarious reasons. In 1909, William Williams, the commissioner of immigration, who was charged with overseeing the implementation of federal immigration policy on Ellis Island, unilaterally announced that all aliens needed twenty-five dollars with them when they arrived. All others would be identified as “likely to become a public charge,” a poorly defined basis for inadmissibility typically interpreted as someone fated to be institutionalized in a jail or hospital. Lacking that amount, many people were denied entry and marked for return to their place of origin. Upon learning of Williams's order, lawyers from the Hebrew Immigrant Aid Society (HIAS), one of the first American organizations to institutionalize alien legal assistance, stepped in to help individuals in legal limbo.

HIAS had formed, in part, in reaction to Williams’s reappointment by President William Taft and the subsequent spike in exclusionary practices. As a part of their work, HIAS met newcomers on Ellis Island, provided them with translators, advised them on how to pass their medical inspections, supplied them with kosher food, and made sure they had accommodations after disembarking—all of which was necessary to secure their admission into the United States. In addition, HIAS officials helped aliens identified as inadmissible challenge their exclusions.

Guiding excluded aliens through the appeals process, which first took place before a three-person panel known as the Board of Special Inquiry, HIAS lawyers advised aliens on how to answer the questions that would determine their fate; simple miswording could render someone permanently inadmissible. For many years the Bureau of Immigration banned lawyers from participating in actual Board proceedings, a rule that HIAS lawyers also protested. For those individuals whose hearings failed to secure admission, HIAS lawyers wrote appeals to Bureau of Immigration officials, who had the ultimate authority in immigration decisions during the first decades of the twentieth century. Indicative of the significant role played by HIAS lawyers, in the decades before the passage of the notorious Immigration Act of 1924—designed to restrict the admission of Southern and Eastern Europeans, especially Italians and Jews, into the United States—HIAS helped to secure the admission of over 100,000 immigrants who might otherwise have faced deportation.

HIAS lawyers also attempted to safeguard immigrants by filing lawsuits in federal courts. In response to Williams’s 1909 order, for example, Max Kohler filed cases in New York’s Southern District court on behalf of four Eastern European Jews. (Kohler was the son of famed Rabbi Kaufmann Kohler of New York City’s Temple Emanu-El.) The four men whom Kohler represented had been slated for deportation because they did not have enough cash upon arrival. Kohler intended to use their case to coax federal courts to exercise greater authority over immigration, the subject of a turf war between the judicial and executive branches at the start of the twentieth century. He believed that judges, not bureaucrats, were the rightful interpreters of law, and that they would treat immigrants more fairly. Kohler also intended to use this case to secure to immigrants their due process rights, including the right to counsel. Indeed, he tried to convince a young Judge Learned Hand to hear arguments in favor of aliens’ right to legal representation by arguing that failing to guarantee such a right violated the Fourteenth Amendment’s Due Process Clause. Kohler failed on both fronts: the judiciary declined to assert its authority in immigration matters, and his efforts to secure due process rights for aliens failed.

Since 1909 minimal due process rights have been afforded to aliens who come to America. Federal courts, time and again, have declined to recognize their right to counsel. In 2014, some progress was made on this front when President Barack Obama launched a program to provide lawyers to children facing deportation. Still, by and large, immigrants and refugees trying to enter the country or hoping to prevent their deportation find themselves without access to legal representation. Yet recent events illuminate the dangers inherent in the executive branch’s virtual monopoly over immigration and underscore why aliens need access to lawyers: securing admission is complex and newcomers to the United States have little recourse without the aid of legal professionals. Access to a lawyer familiar with the U.S. immigration system often makes a difference in whether an alien can remain in the United States. Immigrants and refugees should not need to rely on the goodwill of individual judges or kindhearted lawyers to secure safe admission into this country. If we want to ensure their safe passage, we need to grant them the right to legal representation.