Unlike defendants in criminal cases, people who face deportation from the United States don’t have the right to a public defender who’ll fight for them in immigration court. Many immigrants can’t afford legal representation — meaning they’re more likely to lose their cases, unless they can get aid through a nonprofit or a local immigrant legal defense fund, like Denver’s.
This year, a group of Colorado Democrats, led by state Rep. Kerry Tipper of Lakewood, is working with advocates including the Colorado Immigrant Rights Coalition to create a statewide legal defense fund for low-income people in immigration detention.
The program would benefit “poor individuals working and living in the country that are detained by immigration,” Tipper said. “If they had money and legal representation, their outcomes would most likely be very different — so what we’re trying to do is not penalize poverty.”
Tipper said she’s working on a bill with new state Rep. Naquetta Ricks of Aurora, herself a Liberian immigrant, to establish the program. Joint Budget Committee Chair Sen. Dominick Moreno, of Commerce City, will sponsor the legislation in the Senate.
The legislation wouldn’t require any state money, Tipper said. Instead, lawmakers are hoping to set up the fund to accept private donations. Tipper hopes the state can partner with organizations such as the Vera Institute of Justice, which provides resources to state and local immigrant legal defense funds around the country.
“The bill would be gifts, grants and donations,” Tipper said. “If we can get an appropriation, that would be amazing, but we also recognize the difficult financial circumstances we’re in, and so we just want to have some flexibility.”
The state probably wouldn’t dole out the money directly to individuals, she explained, but to organizations that work with impacted community members. In that sense, the statewide fund would parallel the Denver Immigrant Legal Services Fund, created in 2017 through an executive order issued by Mayor Michael Hancock.
Nonprofits that provide direct legal representation to undocumented, low-income Denver residents can apply for the funding through the Denver Foundation. The assistance can also be used to “help nonprofits expand the pool of pro bono or low-bono attorneys to provide assistance,” according to the fund’s website.
At the Aurora Contract Detention Facility — an immigration detention center run by private prison company GEO Group on behalf of Immigration and Customs Enforcement — it’s “rare” for detained people to have a lawyer, according to Denise Maes, public policy director for the ACLU of Colorado.
A lawyer can mean all the difference in a deportation case. In 2016, a study published in Law & Society Review found that immigrants with legal representation were 3.5 times more likely to be released on bond. They were 10 times more likely to win their immigration cases, according to a 2015 article in the University of Pennsylvania Law Review.
Still, the idea of paying for legal expenses of people who aren’t American citizens wasn’t popular with some Aurora City Council members, who recently voted against creating their own fund, similar to Denver’s. Like the statewide proposal, Aurora’s proposed ordinance would not have required any city money.
The City Council discussion of the fund on Jan. 4 occasioned verbal sparring and personal attacks among the elected officials, as the measure’s sponsors, council members Crystal Murillo and Alison Coombs, and its principal opponent, council member Dave Gruber, invited differing expert witnesses to testify.
The measure’s opponents said the legal defense fund was an improper use of taxpayer money, with Gruber arguing that since many people with immigration cases have criminal records, they should not be entitled to city-funded defense. The council was evenly split, but Aurora Mayor Mike Coffman cast the tie-breaking vote against the measure.
Tipper said she was surprised and disappointed that the program was ultimately rejected in Aurora, which is home to a large and diverse population of immigrants.
“Staying in a detention center has other ramifications, particularly right now with COVID,” Tipper said, pointing out that the pandemic is affecting the physical and mental health of people in detention. The Aurora facility alone has reported 181 cases of COVID-19 since the pandemic began, and 46 people who tested positive were under isolation or monitoring for COVID-19 at the facility as of Jan. 31, according to ICE data.
Tipper added that many families are “mixed-status,” meaning that if someone is living in the United States without documentation, they often have children, parents or siblings who are green card holders or citizens.
“For you to be just gone (in detention) is really difficult on that Colorado family,” she said. “So the idea is to set up a fund that would try and bring some sort of parity and fairness and efficiency, frankly, to the system.”
Six states have statewide immigrant legal defense funds, according to the Vera Institute. They include Washington, Oregon, California, Illinois, New York and New Jersey.
Colorado’s fund would look similar to those in use elsewhere, Maes said. She’s confident the advocates will be able to get enough support to create the program this year.
“We have had preliminary conversations with the governor, and he certainly has been open to the conversation,” Maes said. “So it certainly isn’t in the nonstarter category.”
In the Colorado Legislature, Maes anticipates some lawmakers will have “a lot of concern” about creating an immigrant legal defense fund.
“There still remains a lot of anti-immigrant sentiment that I’m sure a bill like this will bring out,” she said. “But I think that the benefits are something that we have to be really explicit about: the fact that really, individuals that are detained are really no different than individuals that are jailed or in prison, and there should be a right to counsel.”