Stuck in detention: For immigrants without lawyers, justice is hard to find
It was nearly three hours before sunrise on a frigid October morning when immigration attorney Aissa Olivarez climbed into her Honda CR-V and left her Madison apartment.
She drove an hour and 40 minutes to Elgin, Illinois, and got on the commuter train, arriving before 9 a.m. at the Chicago Immigration Court — the designated court for the roughly 300 people held in immigration detention in Wisconsin.
Olivarez travels to the Chicago court as often as a couple of times a week. She is one of just two immigration attorneys in Dane County who represent detained clients for free, part of a national pilot program that aims to provide free lawyers to immigrants.
This client, a Latin American who has been in the United States for 18 years and whose children are all U.S. citizens, had five drunken-driving arrests on his record. She knew that did not bode well for his chances of being released on bond.
In a way, though, Olivarez’s client had an advantage. In 2018, about two-thirds of immigrants who were held in detention ahead of their deportation hearings did not have lawyers, making them more likely to remain in detention and, ultimately, be removed from the United States, according to a Wisconsin Watch analysis.
Analyzing data compiled by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), Wisconsin Watch found that of Wisconsin residents whose cases began between 2010 and 2015, those who had lawyers were more than six times as likely to be allowed to stay in the country as those without. Nearly 55% of those with lawyers were allowed to stay compared to 9% of immigrants without lawyers.
Nationally, the picture is similar: Immigrants without lawyers had an average success rate of less than 8%. Cases that began since 2015 were omitted from the analysis because many of them have not yet been decided.
Olivarez works for the Community Immigration Law Center (CILC), a partially taxpayer-funded program based in Madison that provides free and low-cost legal services to some of Wisconsin’s detained immigrants.
These are people who cook at restaurants, take care of dairy cows, clean office buildings, landscape yards and put shingles on roofs, among many other jobs. They may have committed a crime — ranging from heinous to minor — or no crime besides entering the United States illegally, an offense that can bring a small fine or up to six months in jail.
Dane County is one of 13 jurisdictions around the country chosen for a new program that aims to give detained immigrants access to an attorney. Individuals facing deportation have a right to legal representation — but only if they can afford it. On average, about half of immigrants nationwide do not have lawyers. In Wisconsin, the figure is 42%.
“(You’re) up against the Department of Homeland Security, who has this big file of things that they’re ... ready to throw at you, and you have no idea what’s going on,” Olivarez said of the unrepresented immigrants.
At the hearing, Olivarez’s client appeared by video from jail. He was ordered to be detained until his deportation hearing in January, where his application for relief based on the likelihood of facing danger in his home country was denied. Olivarez is appealing that decision.
More than 1 million immigrants and asylum seekers are facing deportation nationwide, including 3,700 people from Wisconsin. Nationally, about 50,000 of those immigrants are being held in detention, a record number, according to The Daily Beast.
Lawyers increase odds of staying
Immigration and Customs Enforcement detains immigrants at two Wisconsin facilities housed within the Dodge County Detention Facility in Juneau and Kenosha County Detention Center in Kenosha.
Olivarez said the majority of the immigrants detained at Dodge, the facility she typically serves, are people who were not apprehended by the Border Patrol, but who overstayed visas or had green cards allowing them to live and work in the United States but were convicted of crimes that could make them deportable.
The Trump administration has changed its enforcement priorities to include undocumented immigrants who have been charged but not yet convicted of a crime. In response, Milwaukee County Sheriff Earnell Lucas has announced that he will no longer alert federal officials of the immigration status of people in the county jail, stating that “it’s the right thing to do.”
Those who are arrested and then released can live legally and also work — legally or otherwise — for years. Data show a big factor in getting to stay in the United States is having a lawyer.
Grant Sovern, president of the board of the CILC, said the program uses “the laws that Congress passed that give immigrants the opportunity to defend themselves against deportation.”
Getting released back into the community reunites the family, allows breadwinners to continue working and makes it easier to get a lawyer — which in turn increases a person’s chances of getting to stay in the country.
Marigeli Roman’s husband, Erick Gamboa, was arrested in a September 2018 immigration enforcement surge in which 83 people, most of them from Mexico, were arrested in Wisconsin. About two years earlier, Gamboa was arrested — he had driven his boss’ car for work and did not know its license plates were suspended. He was fingerprinted, making it easier for ICE to arrest him later.
Because he had been stopped at the U.S.-Mexico border years before, Gamboa was subject to “expedited removal” and not eligible for a bond hearing. Even after Roman found him a lawyer, the odds looked insurmountable.
“The lawyer said that I had a chance — 99 percent chance — I would lose. So I said, ‘That 1 percent is enough for me to fight,’ ” Gamboa said.
He ultimately won his case and was granted “withholding of removal” in December due to death threats he had received from his own father in Mexico. He was released in February after six months in detention.
Roman, who lives in Milwaukee, said her husband’s detention was “life-changing” for her and their children. The first month was especially hard.
“I didn’t want to get up, I didn’t want to eat, I didn’t want to care for my kids,” Roman recalled.
She also faced the practical challenges of life as a single parent. In her husband’s absence, the stay-at-home mom of three children had to find a job and arrange for someone to help take the kids to school. Her mom took care of her 2-year-old.
“It moves your world in so many ways, like emotionally, mentally, physically, financially,” said Roman, who is currently protected from deportation under the Deferred Action for Childhood Arrivals (DACA) policy, which grants some rights to eligible immigrants who came to the United States as children.
Children ‘traumatized’ when parents taken
Fabiola Hamdan has seen the impact too. She works as the immigration affairs specialist for Dane County, a position created after President Donald Trump was elected. Hamdan said the sudden arrest and then absence of a parent can “traumatize” children.
When Gamboa was detained, his family made the 40-mile trip from Milwaukee to the Kenosha County Detention Center for 30-minute weekly visits, where they talked on the phone with Gamboa on the other side of a plexiglass window.
Roman said she saw a change in her children, all U.S. citizens, during those months. He was the one who helped with homework and took them to soccer practice.
“It made them not want to continue playing … They didn’t want to continue life. My oldest one — he had suicidal thoughts.” That child is 10 years old.
Release helps keep family bond
Recently, Hamdan worked with a mother of four whose husband, a green card holder, was detained for five months following a criminal conviction the government argued made him deportable. During his detention, Hamdan said, the woman gave birth but had to continue working to pay the bills.
“It’s very heartbreaking,” Hamdan said. “Instead of enjoying the baby, right now she’s really trying to put food on the table.”
Hamdan helped the family using a county fund for rent, utilities, diapers and food. She also connected them with Olivarez, who won the case by arguing that the type of crime — which Olivarez declined to reveal — did not make him deportable.
The government is appealing that ruling, but the husband has been released. Without that help, Hamdan said, the family would likely have lost its home.
Pretrial release improves chance to stay
Once detainees are released, their cases transfer to a “released court” — and those dockets have a million-plus backlog of cases. Critics argue immigrants who are released while their cases are pending will not return for their court hearings.
“The fact is that when these people are turned loose, they are given court dates … and a lot of them never show up. They just completely disappear into our society,” said Dave Gorak, executive director of the Midwest Coalition to Reduce Immigration, citing an analysis by the Center for Immigration Studies, which favors low immigration.
Those data show that between 1996 and 2015, about 37% of released immigrants did not show up. In 2017, the most recent year for which the data are available, the no-show rate was 41%, meaning 59% of immigrants did return to court.
Olivarez and Erin Barbato, the director of the Immigrant Justice Clinic at the University of Wisconsin Law School, are the only two local attorneys who routinely represent detained immigrants at no cost to the client.
Their work is funded by private fundraising and a grant from the Vera Institute of Justice. Dane County and the city of Madison also fund their work through the Madison Community Foundation’s Immigrant Assistance Fund.
Sovern said the system is not designed to accommodate a large number of represented defendants. After arrest, immigrants are urged to sign a document consenting to their deportation.
“The whole system is set up so people don’t have lawyers,” Sovern said. “The first thing they do is try and get you to sign away your rights.”
Natalie Yahr is a student in the University of Wisconsin-Madison School of Journalism and Mass Communication. The Wisconsin Center for Investigative Journalism’s collaborations with journalism students are funded in part by the Ira and Ineva Reilly Baldwin Wisconsin Idea Endowment at UW-Madison. The nonprofit Center(www.WisconsinWatch.org) also collaborates with Wisconsin Public Radio, Wisconsin Public Television, and other news media. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.