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Delivering Gideon: Giving Birth to Humane Immigration Laws.

by Makousse Ilboudo

“Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed, to me: I lift my lamp beside the golden door.” – Emma Lazarus
“We don’t detain pregnant women.”  That was the initial response of an El Paso, Texas immigration detention center officer back in 2013 when asked about the number of pregnant detainees in immigration detention centers, according to the American Civil Liberties Union.  This was obviously false because in response to a Freedom of Information Act (“FOIA”) request regarding pregnant women detained, the Immigration and Customs Enforcement (“ICE”) agency provided data that 13 pregnant women were detained in Texas and at least 559 were detained in six facilities throughout the U.S. since 2012.  Pregnant detainees may be shackled, and sometimes even forced to give birth while shackled, depending on the state.  This still occurs despite an official 2010 ICE policy that states pregnant women “shall not be restrained absent truly extraordinary circumstances,” and “restraints are never permitted on women who are in active labor or delivery.”

photo3The reality is that hundreds of pregnant women, detained at the border who have not committed heinous crimes, are subjected to inhumane treatment, and are held in detention for months at a time.  During this time, they do not receive appropriate prenatal care.  They have limited access to programming or activities appropriate for their conditions, and they are subject to routine strip searches and are shackled during transport.  The worst part of their ordeal is that unless they can afford it, they have no legal recourse to express their grief as they do not have access to legal representation.  Essentially, they are treated like criminals but are denied the most fundamental right a criminal defendant has under the Sixth

Amendment: assistance of court appointed counsel.

The Sixth Amendment provides for the “assistance of counsel” for an indigent defendant in all criminal prosecutions.  More than 50 years ago, the Supreme Court found in Gideon v. Wainwright an “obvious truth” that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  By doing so, the Court recognized a constitutional right to counsel for criminal defendants who lack the means to hire an attorney on their own.  The Court deemed this right as the backbone of the American judicial system because it gives legitimacy to an adversarial clash between two relatively unequal sides in the hope of a fair and accurate result.

To that end, the Promise of Gideon needs to be afforded to detained immigrants, especially pregnant detainees.  Under the main provision of the Immigration and Naturalization Act (“INA”) § 292, the respondent in an immigration proceeding has the privilege of being represented (at no expense to the Government) by such counsel, as he or she shall choose.  Thus, pregnant detainees may retain private attorneys if they can afford to or try and retain pro bono legal services.  Why you ask?  Because immigration removals are civil in nature. The Sixth Amendment’s “assistance of counsel” guarantee applies only to criminal cases.  But surely, this is not enough explanation to treat them in a manner contrary of what is accepted and even expected of our judicial system.

This lack of access to legal representation becomes even more problematic when it is coupled with the INA’s mandatory detention provision under section 236.  Given the natural imbalance of a proceeding in which the defendant lacks an attorney, it is inevitable that where the accused’s liberty hinges, Gideon must apply, regardless of whether it is a criminal or civil proceeding.  Simply put, the promise of Gideon should apply to pregnant women in immigration detention.  They are vulnerable and in dire need of fair adjudication of their cases and for the most part are too poor to hire an attorney.

According to Executive Office for Immigration Review (“EOIR”) statistics, most persons in remophoto5val proceedings appear pro se, and the lack of counsel has a pronounced negative impact on case outcomes.  In appearing pro se, detained pregnant women face overwhelming barriers in presenting their cases, including language and cultural barriers.  They are unfamiliar with the laws and procedures and are expected to present their cases for relief while facing opposition from government lawyers who specialize in immigration laws and regulations.  If they lose their case, some of the women will be removed to a country where they may face persecution, torture, or even death.

The Pregnant Immigrant Protection Act (“PIPA”) is a proposed amendment to INA § 292, which will mandate legal representation for all pregnant detainees.  The goal is to give them an advocate to ensure access to among other things; health services, such as adequate and constant onsite prenatal care, and visit to specialty clinics for conditions such as diabetes.  Such legislation is also essential to educate the detainees on the different types of relief available and to ensure a more humane treatment.

There are several public policy reasons to enact PIPA.  Pregnant women are a protected group of individuals with particular and specific needs.  Many of them in detention have high-risk pregnancies due to the economic and social problems that led them to flee their home countries: poverty, lack of education, and inadequate health care.  Detention often elevates post-traumatic stress in pregnant women because of constant body searches, handcuffs, shackles, confinement in small cells, and isolation.  Thus, while detained, the women need adequate prenatal care offering medical, nutritional, educational, environmental, and family-support services.

Ironically, under current INA laws, there are a number of options for relief available to women in immigration detention – Special Immigrant Juvenile Status, U visa status, T visa status, Torture Victims Relief Act, and Asylum relief.  However, they are unable to make use of these benefits because they lack legal representation to explain these options to them and to analyze their cases to determine whether they qualify.

In the debate for legal representation for pregnant detainees, it is crucial to remember that the immigration detention system is a civil system and the pregnant women within this system are not awaiting criminal trials or threatening national security.  Yet, they are treated worse than those in the criminal system.  It is very hard to reconcile the idea of American judicial fairness with the current situation.  The system guarantees legal representation for indigent murderers, rapists, terrorists, and child abusers, yet turns a blind eye to defenseless pregnant women whose crimes are defined as “attempting to illegally enter the U.S.”  To deport these women without giving them access to legal counsel is unconscionable and against American values.

To put it in perspective, Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the September 11attacks that killed nearly 3,000 people, according to CNN, was appointed counsel for his military tribunal hearing in Guantanamo Bay.  How can we allow a murderer like Mohammed to have an attorney in the name of justice and not extend the same right to a pregnant woman who faces removal to a place where she and her baby may be killed?  Where is the justice in that?

Despite the government’s position that detaining these women will guarantee that they will appear in court and not leave town, they should still have access to an attorney to appear at those court hearings to make sure the process is fair.  PIPA is not amnesty, which will grant the women automatic entry into the U.S. or guarantee a pathway to citizenship.  Its purpose is to ensure that the government carries out its immigration mandate in a way that ensures a fair outcome for these pregnant women.

Gideon held that the adversarial judicial process relies on the assumption that both sides are coming to the process with equal legal resources.  This is far from the truth when a pregnant detainee must navigate the legal system without legal help.  That is wrong, and something must be done about it.  PIPA is the solution to ensure they will no longer be mistreated.

Makousse Ilboudo is a fourth-year evening division law student at St. John’s University School of Law. She is a senior staff member for the Journal for Civil Rights and Economic Development. Over the summer, Makousse was a Summer Associate with the corporate immigration firm, Fragomen, Del Rey, Bernsen & Loewy in New York City. She is a candidate for J.D. in 2016 and will sit for the February 2016 bar exam.

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