On a hard, blue bench in the dining hall of Pueblo High School in south Tucson, Omar sits close to Brody, his husband.
The couple married six days earlier, and are still reveling in the afterglow, heartily laughing at each other’s half-jokes and gifting each other lingering glances.
Omar is 27. Brody is 26. They are in Pueblo’s dining hall on a hot Thursday afternoon in late June to obtain the help of the free legal clinic, Keep Tucson Together. Working together to secure Omar’s residency in the United States, they ask to be identified only by their first names because of Omar’s ongoing legal case.
Update July 11
The initiative gathered more than 40,000 signatures before the July 7 deadline, but fell short of the required 58,238, and will not be on the ballot this November. Organizers vow to keep pushing for universal representation. “More than 40,000 Pima County voters raised their voices for justice for our unpapered neighbors,” Cowan said. “Please join us in November for the grand kick-off of round 2 of the Justice for All Campaign!” adding, “Adelante!”
The U.S. government is trying to deport Omar to Mexico, where he hasn’t lived since he was 5 years old. As a gay man whose family has been targeted by the drug cartels, he is scared to return.
Omar, with blonde-tipped curly hair bursting out from under his cap, black heart earrings dangling from both ears, a thin wedding ring on his left ring finger, and a gold chain around his neck, is dressed to make a good impression.
When Omar talks about the possibility of being sent back to Mexico, he becomes uneasy and starts biting his fingernails, painted in a sparkly, deep-purple polish.
As with any legal battle, cases in immigration court are best won with the help of an attorney. Only about 3% of detained migrants facing deportation are able to stay in the country when they’re advocating for themselves. With the help of an attorney, that number jumps to more than 32%. Represented immigrants not in detention were nearly five times more likely to avoid deportation.
But, unlike in criminal court for U.S. citizens, migrating people without legal immigration status facing deportation are not guaranteed the right to counsel under the Constitution’s Sixth Amendment. And with immigration attorneys sometimes charging as much as $500 dollars an hour — on top of other fees migrants are required to pay — representation is often prohibitively expensive.
In France, Germany, Sweden and Canada, migrants’ right to counsel is constitutionally protected.
Omar is among the many immigrants who have no right under U.S. law to an attorney paid for by the government, and can’t afford to pay for one.
A new initiative, led by the Justice for All/Justicia para Todos campaign, is looking to change that in Pima County, guaranteeing the right to counsel for all residents.
Documented or not.
Proponents of the petition are currently collecting signatures to get on the November ballot. They need 58,238 signatures, according to officials involved with the measure. It would offer free or sliding scale representation to all Pima County residents who are in removal or deportation proceedings.
If it makes the ballot, Pima County voters would be the first in Arizona to decide whether their communities want to join the approximately 50 other cities or counties in the U.S. that have created funds for immigrants to have access to legal counsel.
The campaign will continue collecting signatures at their Tucson office on 2432 E. Broadway Blvd until July 5, or possibly as late as July 6.
Other local organization that assist migrants include Keep Tucson Together, No More Deaths, the Florence Project, and Casa Alitas. At the national level, the Vera Project is pushing for universal representation.
The effort drew attention across the country amid international outrage over human-rights violations following the Trump administration’s zero-tolerance policy that separated thousands of children from their mothers and fathers. High-profile celebrities Linda Rondstadt and Lin-Manuel Miranda, the latter of whom donated $25,000 dollars to the initiative, have expressed their support.
Justice for All was founded by four Arizona migrant justice stalwarts: Margo Cowan, Isabel García, Lupe Castillo, and Raquel Rubio-Goldsmith. They have been fighting for the rights of migrants for decades, and were essential in establishing No More Deaths, Derechos Humanos, and the Binational Migration Institute at the University of Arizona.
Now, the four are turning their experience to trying to guarantee representation in court to all Pima County residents.
According to a 2016 study, fewer than 40% of all immigrants and fewer than 15% of immigrants in detention have legal counsel. Only 2% of all immigrants, according to an earlier study, were able to secure pro bono counsel.
Cases with legal representation in immigration court show more efficiency. They “brought fewer unmeritorious claims, were more likely to be released from custody, and, once released, were more likely to appear at their future deportation hearings.”
Nationwide, according to statistics kept by TRAC, a data and research organization at Syracuse University, there are just over 984,000 migrants facing deportation who do not have attorneys.
Last year, in 98% of the nearly 24,000 cases processed through Tucson Immigration Court, the people did not have a lawyer to represent and defend them.
Austin Kocher, an assistant research professor at Syracuse University, underscored the multiple reasons why immigrants need representation.
“Immigrants don’t know what they are eligible for without an attorney,” Kocher said, referring to the different kinds of relief — or ways to defend against deportation — some of which, such as withholding of removal, cancellation, or CAT, can be quite technical.
Many migrants also don’t know how to effectively apply.
“So much that happens in court is also relational, so immigration attorneys have the informal relationships to make it happen,” Kocher said.
Attorneys also connect people to so many other services and help to make sure people go to court. “They also sort of act as social workers in a way,” Kocher said.
Often, it’s the basics that are most needed: a guide to orient you through the labyrinth of the immigration court system. Rocío Castaneda, an advocacy attorney with the Florence Immigrant and Refugee Rights Project, said universal representation was “absolutely necessary.”
Having representation, Castaneda said, “exponentially increases immigrants’ chances to get a fair day in court.”
And it’s not just about the final outcome, Castaneda stressed. Having an attorney can help detained migrants obtain necessary paperwork, speak to their families, file complaints, and, ultimately go up against trained government attorneys who are zealously trying to deport them.
Castaneda summarized: “Universal representation is needed for due process, for a fair day in court, and for economic, health, and racial justice.”
“Maybe They’ll Grow a Heart.”
Omar has been in his own legal labyrinth since 2017.
That was when he made his mistake, as he puts it, an error in judgment he readily accepts responsibility for: There was no incident or accident. He was pulled over in his car after he’d been drinking.
“I was going through a lot at the time,” he says. “And this one mistake I made changed the whole course of my life.”
His punishment, he says, was much worse than for someone with legal immigration status. For the DUI he was sentenced to 48 hours in jail. He knew, however, that there was a chance Immigration and Customs Enforcement, or ICE, would be waiting for him when he was set to be released.
“Maybe they’ll grow a heart,” he remembers thinking.
“Maybe,” he hoped, “they won’t come for me.”
As he passed the 48-hour mark in jail, nobody was coming to let him out. After a while, a guard told him that ICE was on the way.
“I panicked,” Omar says. “I broke down. It was absolutely terrifying to think that everything I had built up, my family, my friends, everything would be gone.”
On June 30, the Supreme Court ruled on Biden v. Texas, deciding that the Biden administration did not unlawfully terminate the Trump-era program Migrant Protection Protocols, also widely known as Remain in Mexico.
If the ruling had gone the other way, in favor of the state of Texas, the court would have been mandating that asylum seekers either wait out their cases in Mexico or be detained in the United States for the duration of their cases, which can last years.
Both situations result in extremely low opportunities for legal representation.
Responding to the decision, Arizona Attorney General Mark Brnovich, wrote on Twitter, “The Biden administration has completely abandoned the rule of law at the border, and officials must be held accountable.”
Asylum seekers, as well as migrant advocates, seem to have dodged a bullet with the ruling, but some confusion remains. Details of the program will still be hashed out in lower courts, and the SCOTUS decision only permits the Biden administration to terminate Migrant Protection Protocols.
It’s now up to the Biden Administration to decide how to proceed: If asylum seekers should be free when they are allowed their day in court, or if they will be detained or forced into Mexico between court dates.
How to help with friends
For the next week after being taken into ICE custody, Omar was transferred between detention centers, before he was finally booked into an immigration detention center in Eloy, Arizona, where he languished for the next three months.
He was eventually released on a $20,000 bond.
Omar’s mother, assisting him from the outside, found a lifeline with Keep Tucson Together.
She was able to secure the services of Cowan, who had long been running the clinic.
With Cowan’s help, Omar filed an asylum claim, based on the fear of persecution because of his sexuality and the violence in his home state of Sinaloa, which is what originally spurred the family to flee.
Over the last 20 years, according to TRAC, Mexicans have been granted asylum in the United States only 15% of the time, one of the lowest grant rates of any nationality.
The judge denied his claim.
Omar appealed the denial. He had also filed for a work permit to be able to get a job and support himself as his case proceeded, but has yet to receive it.
Legally, that is, he is not allowed to work to pay his bills or rent, as his case drags on over the years.
Asked what having an attorney has meant as he’s fought to stay where he calls home, he says, “It’s been my lifesaver. I would have already been deported if it weren’t for Margo. Everyone should have representation.”
The day Omar and Brody share their story, they had show up to Keep Tucson Together early — almost two hours early.
They want to make sure they can speak with someone, and wait with about 50 people in the echoic, tiled dining hall.
Student-made posters about consent and “How to Help with Friends” adorned the wall. In the next room was a Diego Rivera-inspired mural, complete with an Aztec warrior holding a football and a diploma, Cesar Chávez, MLK Jr., the Tohono O’odham maze, and a female mariachi playing a guitar.
Before COVID-19 hit, there were about 300 volunteers working with Keep Tucson Together. That’s dropped to about 30, with three currently active volunteer attorneys.
Rey Montes, who runs the Keep Tucson Together office and focuses on Deferred Action for Childhood Arrivals, or DACA, renewals, has been working with the clinic since 2012.
He estimated they have helped about 2,000 people apply for or renew DACA, along with 1,500 naturalization requests and almost 1,000 folks fight against their deportation orders.
As Omar proceeds with his asylum appeal, he’s now seeking adjustment of status through his new husband.
A little after 5 p.m., after their two-hour wait, Omar’s name is finally called, and he and Brody walk to a lunch table where long-time Keep Tucson Together volunteer Sarah Roberts is sitting, smiling behind her mask.
After a brief hello and congratulations, Roberts gets to business, walking the couple through the various forms on her laptop that they’d have to fill out. Brody takes notes on his phone.
First up was the I-I30, “Petition for Alien Relative,” a 149-question form, which also needs three letters from U.S. citizens or lawful permanent residents who can attest that the married couple are in a committed relationship.
Next was the I-485, and then the I-864.
Finally, Omar will need to obtain a medical exam from a USCIS doctor. That will cost at least $300.
All told — just to file the paperwork — it was going to cost them more than $2,000. Plus, they’ll have to prepare multiple letters and scans of documents to go with the official filings.
At one point, dropping his head back and looking at the ceiling, Brody says, “I’m soooo glad I’m organized.”
After the consultation with Roberts, Omar and Bordy walk to an empty table to huddle. “I’m excited to get started,” Omar says.
“How would they expect me to pay 5 or more thousand dollars, when I have to pay $2,000 just to apply?” he says of the importance of having an attorney.
“And I’m not allowed to work! I mean…” he says, widening his eyes in exasperation.
“It’s disgusting what our country has done to him,” Brody says. “And there are millions who have suffered the same or worse.”
“So many mistakes we could make,” Omar chimes back in. Without an attorney, “we’d be like a chicken with its head cut off.”
Part of the point of the clinic, Roberts says, is “to empower people in the community to learn and work on applications themselves.”
And yet, especially for the more complex cases, she underscored that attorneys are vital. At least one of the attorneys will review Omar’s paperwork before he files.
If the measure makes the ballot and voters approve in November, Pima County would join the ranks of about fifty other cities or counties that offer some form of universal representation.
To achieve that, to drum up support and gather enough signatures to put the measure to voters, organizers have been darting all around the county, as well as throwing a few parties.
“If We Get It On the Ballot, We Win.”
The mood in El Casino Ballroom in South Tucson, with dozens of people on the dance floor and another hundred or so milling about or sitting at tables eating Sonoran hot dogs, matches that of a wedding or a quinceañera.
The revelers are celebrating renewed momentum for the Justice for All campaign.
Sister Karen Berry, 78, who just added her signature and address to tens of thousands of petition signers before her, says, “I feel bad for the people who have to be deported. I think they should have legal assistance to have a shot to stay.”
Claudia Robles, originally from Sonora, who has been a volunteer on the campaign for years, says that she joined “porque luchamos para nuestros vecinos.” She adds, “If you put yourself in their shoes, we all have family who are migrants.”
Margo Cowan, who spent the evening skating between the gaggles of celebrants, is confident.
“If we get it on the ballot, we win,” she says. “And if we don’t get it on the ballot this year, we will in 2024. We’re not stopping,” she said with a stern smile.
When asked if this serves as a model for other counties, she responds, “We’re taking care of our community. That’s our focus now.”
Cowan also points out that immigrants are already paying in for such a service.
“These are workers. They’re paying taxes,” she says.
In effect, undocumented migrants — who pay sales tax, rental tax, and even often income tax — subsidize citizen benefits, Cowan says.
Marta Reyes, the campaign manager for Justice For All, talks about what inspired her to do the work: “I love my community, so I do everything I can to help.”
As with many people involved, the issue is personal for Reyes.
“I come from immigrants, I know my family and what it means to be undocumented. This is a human rights issue. I want my community to stay together.”
Rep. Andrés Cano, also with his community at the event at El Casino Ballroom, says, “With no action from the state, we need more local effort. These are our neighbors. They go to the grocery store with us, to school with us, and to the library with us.”
“The good thing for the future,” Cano says, “is that Tucson always leads.”
The campaign will continue collecting signatures at their Tucson office on 2432 E. Broadway Blvd until July 5, or possibly as late as July 6.
Focusing on the local
Universal representation also has its critics, and not only from those who are anti-immigrant. Some believe that federal efforts to push for universal representation would be further legitimizing the deportation courts, and time and money are better spent not at funding more lawyers, but in fighting against the very premise of a system that seeks to give vulnerable migrants the boot.
Writing in a recent law review article, Angélica Cházaro points out that there is no contradiction between guaranteeing the right to counsel and expanding the mass deportation regime.
Cházaro also worries about “creating a class of penal bureaucrats” by training and hiring a battalion of new immigration attorneys.
In her blistering critique, Cházaro writes that “achieving federal funding for representation for immigrants may prove to be one more example of preservation-through-transformation, with the core functions of the mass deportation preserved and reconsolidated even as the procedures for deporting immigrants are tweaked through the addition of counsel.”
Sophia Gurulé, policy counsel at The Bronx Defenders, a legal aid organization that works with the New York Immigrant Family Unity Project, also known as NYIFUP, agreed that efforts to expand a guarantee to counsel at the federal level were misguided.
“It’s just not feasible,” Gurulé said. “If you’re talking about the federal level, you’re not actually talking about keeping communities and families together. You’re talking about building out a court system that is akin to the criminal legal system. And why are you trying to do that, given everything that we know about the criminal legal system, not to mention everything that we know about immigration law, which can get rewritten by the executive branch?”
But NYIFUP, the New York City Council-funded effort which consists of three legal services organizations that together provide free legal counsel for all detained migrants who need it in New York, could serve as a “both/and” model.
“I do think we are a model for the rest of the country,” Gurulé said. ”You can still support ending ICE detention, ending deportations, and fighting for your clients.”
Despite her hesitation about federal level actions, Gurulé supports local campaigns that seek to extend representation to all migrants, with the ultimate goal of ending deportations.
“To be able to fight a lot of these cases requires intensive legal work and legal support, not just attorneys, but actual support for the person facing deportation, including social workers. And that’s meaningful, she said. ”I would never want to pretend like it’s not. It’s important to support local organizing efforts to keep immigrant families together.”
On the same day Omar and Brody meet with Sarah Roberts, Yaritza Escalante and Francisco Baldía are waiting in the same dining hall.
They are trying to figure out how to get their 11-year-old daughter naturalized.
Yaritza is a U.S. citizen. As her 9-month-old daughter cuddles sleepily into her neck, she explains that she gave birth to her first child, now 11, in Nogales, Sonora.
Since then, she has struggled with the demands of raising a family, keeping a roof over their heads, and trying to get her daughter’s papers in order. Despite being born out of the United States, her U.S. citizen mother makes her eligible for citizenship.
“Without an attorney you can’t figure it out,” Yaritza says. “I googled it a bit, but I’d rather talk to someone who knows.”
As an 11-year-old, her daughter may not be facing imminent deportation. But Yaritza worries, “Kids grow up fast, and you never know what things are going to be like in a few years.”
“Better get papers in order now,” she says.
As her little one stirs on her shoulder, Yaritza leans her head in and holds her tight.