Stephen Robbins is an immigration attorney from Yakima, WA who co-hosts a podcast called Redirect, devoted to immigration law. This podcast is a good way to get more familiar with some of the legal issues surrounding immigration in the U.S. Mr. Robbins was kind enough to answer our questions.
Note that this interview was conducted earlier this year, and while some things have changed since, like Jeff Sessions being fired as Attorney General, immigration is still broken, we are still detaining children, and now we are teargassing refugees at the border.
I’ve heard our government charges people money to go through our immigration process. Do you know how much, on average, the government charges your clients?
That’s a good question, but it kind of misses the point, which is that most of the time there’s not a process. That’s primarily why people are undocumented, not because of financial hurdles, but because the law doesn’t provide a way. But, in a situation where somebody might qualify, like today I spoke to a woman with three kids. She just married a U.S. citizen. Her kids are Mexican. Her husband could petition for all three of the kids and his wife. Each of those would be treated as its own process. He happens to qualify because of a particular circumstance, most people don’t. In that case, just with government fees, without an attorney, we’re looking at probably close to $2,000 per person in medical exams and application fees. So in a case of four people, you’re looking at $8,000, and that’s without any hired help to walk you through the process. Most people don’t qualify.
In the case of privatized detention, do immigrant detainees face the same kind of predatory financial practices that people in other kinds of private prisons do? Like in terms of phone calls, or purchasing things that they might need from a commissary, like toothpaste and that sort of thing?
Yeah, the phone call situation is the same thing, it sounds like you’ve got your finger on the pulse of that issue. The charges are really out of control, and immigrants are often moved to detention facilities that are really far away from family or friends. Some of them are purposely remote, away from legal services or other things. So phone calls are really important, and they're really expensive.
In Tacoma I know there's an attorney named Andrew Free who’s working on some lawsuits against GEO because they pay inmates a dollar an hour to work. They’re doing things like cleaning, mopping floors, doing dishes, and the lawsuit is about unjust enrichment. This is a corporation that’s getting millions of dollars in government contracts, and they’re basically padding their own pockets through the use of what amounts to slave labor.
It’s also interesting because most of those inmates don’t have work authorizations. I still don’t totally understand how it is that they’re able to work in the United States without authorization. But yeah, they’re paid a dollar an hour.
There’s another aspect to the lawsuit, which is that, if it were totally voluntary it’d still be problematic, but there’s some indication that it’s not always totally voluntary, and that the detainees are threatened with different forms of repercussions if they don’t participate in the program.
One thing you sometimes hear people say about our immigration system is that it’s lax compared to other countries’ systems. Is there any truth to that claim? Is there a good way to even answer that?
I can’t speak to all of the world. Different countries have different borders, and different interests, and there are going to be some countries that, maybe because of their aging population or whatever, they’re more open to encouraging people to immigrate, for whatever the situation might be.
It’s really hard to compare systems, but I wouldn’t say ours… if anything ours is probably much more rigid and complicated than other places. When Trump says things like other countries laugh at us, nobody has laws like ours, he just speaks in broad generalities. If anybody ever bothered to ask him to be more specific, I doubt he could do that. I would love for him to be more specific and explain what he means.
In the United States, if you marry somebody who’s a US citizen it’s a long process to prove the bona fides of the relationship. And it’s expensive, like we talked about. Now, this is not something I’ve studied, this is just anecdotal, but I spoke to a guy from New Zealand who said that [in New Zealand] you can go to the authorities and say, “Hey, I’ve got a girlfriend or a boyfriend who’s a New Zealander,” and they’ll give you a work permit so you can stay in the country.
The idea that everyone everywhere else is super rigid and we’ve got this open border policy – like most things in this era, it’s a 180 from the truth.
What is habeas corpus and why does it matter when it comes to immigration law?
Basically, you can’t detain people indefinitely. You have to show cause, or you should have to show cause. In the immigration process you can have situations where, oftentimes, it’s the last resort. The only way for someone to get out is to file a writ of habeas corpus.
The immigration laws do have something called mandatory detention. This is where somebody can be subject technically to mandatory detention while they’re presenting their case. The problem with that is a removal case, depending on the facts and the circumstances, can take a really, really long time.
We have a client right now who’s been in the northwest detention center for two-and-a-half years. He’s been denied bond every time he’s been able to ask for it. The difference between immigration detention and a criminal sentence is these people aren’t being punished for something, they’re just being held until a determination can be reached as to whether or not they’re going to be removed.
One thing I’ve been told, I’ve had clients who’ve done a lot of time in prison, and then done a lot of time in immigration detention. They almost always say that immigration detention is worse.
Because at least when you’re serving a sentence, maybe it’s a year or five years, you have some idea of when you’re getting out, and the circumstances of your release. When you’re in immigration detention you really have no idea when the decision is going to come down, or what the decision’s going to be, or if you’re going to have to appeal. It’s this sense that you’ll be in there forever.
Some people do fight cases that take four or five years, or longer sometimes. So a writ of habeas corpus is a way to go before a federal judge and say, look, this person is being held indefinitely and they should be released. I know there are a lot of immigration attorneys who file a lot of those. I haven’t had to, so I don't have a ton of experience in litigating those cases, but it is important.
Sometimes we hear about the right pursuing cases in the court system that can result in precedents being overturned. Do you think some of the more provocative behaviors on the part of the Justice Department could result in re-examination of how many constitutional protections undocumented immigrants have?
The best example of that are these three cases that Sessions has certified to himself. Basically, if you’re in removal proceedings, you’re in an immigration court, and if you lose, you can appeal. If you win, the government can appeal to the Board of Immigration Appeals. It’s an appellate body, basically.
The Attorney General can basically pluck a case away from the board, and say I’m going to decide the case on my own, for whatever reason. Maybe it’s an important legal issue or whatever. It’s pretty rare. A smarter lawyer could tell you when it’s been done in the past. I can’t think of any cases off the top of my head, but Sessions has done it for three cases already.
One of them is this case about administrative closure. It is interesting because he picked this case of an unrepresented, unaccompanied minor, who never appeared in court. So this is a case where Jeff Sessions didn’t really have to argue against anybody.
There’s another case about whether or not judges should be able to continue cases. And there’s another case about whether or not victims of domestic violence should be able to get asylum, basically.
So they are using the tools they have at their disposal to chip away at the things the far right doesn’t like, basically. It’s not a mystery how they’re planning on proceeding.
If you look at these far-right think tanks like FAIR and CIS, they’ve been laying this stuff out for a really long time, and I think Sessions has been hinting that birthright citizenship is something they want to look at, too. Because they view the immigration problem not just as an issue of border crossers, or that sort of thing, they view the children of undocumented immigrants as being a major issue.
So I wouldn't be surprised to see them take up that issue in court, or other issues like it.
I see people say things like, “I can’t believe Jeff Sessions would sit there and take this from Trump! How are these people able to stomach this pornographer president, who’s so profane and disgusting.” But the bottom line is they will swallow all of that.
Because right now they’re driving the ship, and they’re making the decisions, and they’re getting away with stuff now that they've been dreaming about since the 1970s. They’re not gonna throw that opportunity away because the president says the b-word, or whatever. This is a really good opportunity for them.
You sometimes hear the idea that we’re seeing ICE terrorize people to discourage the attempts of people to immigrate. Are we also seeing an effort to terrorize just regular citizens? In other words, do you think by us as citizens witnessing ICE behaving this way, with such impunity, do you think that’s an attempt to send a message that all agencies of law enforcement are going to be unshackled against American citizens?
First of all, we have a long history of arresting, detaining, even deporting, U.S. citizens, going back to Operation Wetback. I think there were dozens, if not hundreds, of U.S. citizens who were deported to Mexico. I’ve had clients detained who were U.S. citizens. I’ve got a friend, Nora Phillips, who works in Los Angeles and Tijuana, and she runs a clinic called Al Otro Lado. They work with recent deportees, and they have clinics and things like that to sort of screen for any potential issues, and they find U.S. citizens who’ve been deported all the time. So the reach of ICE goes beyond immigrants, and not just in a psychological way, that’d be my first point.
My second point would be…ICE agents who show up for work, who are working a 9-to-5 as far as they’re concerned, I don’t think they have it in their mind that this is some sort of broader policy that they’re carrying out. You know, we’re gonna terrorize people and we’re gonna make them afraid.
I think the average officer, they’re just showing up and they’re just doing their job. The degree of sort of overly aggressive enforcement that you’re going to see is going to be a case-by-case thing. In other words, you’re going to have officers who are docile and kind and patient, and you’re gonna have a lot of officers who aren’t.
Now, how many of each group you’re gonna get, you need to look at who’s going to apply for that job, and what is the profile of the applicant for that job, especially now. Because they’re hiring a lot of people, and the question is, who right now is applying for a job at ICE? Is it a guy who’s also applying to be the guy who reads stories to kids at the library? Probably not. The guy who wants to be a librarian isn’t saying, “Oh maybe I’ll also go work at ICE.”
In my experience, knowing these officers and working with them, I don’t see it as this broad idea of, “Hey, you know what we’re gonna do? We’re gonna terrorize this neighborhood!”
At the same time, if you have somebody who’s aggressive, and anti-immigrant, and they’re given a green light…
I think what we are seeing is a byproduct of hiring those people and having no oversight, and no accountability. So some of the things you’re seeing now, if they happened under the Obama administration, these officers would be reprimanded. They’d be told to knock it off, or we would have recourse later on in the process, and now all that’s out the window and they can do what they want.
I don't know that it’s being done for those reasons you asked about, but that’s the effect. Whether or not it’s intended is, in a way, not important.
What is something that you think leftist groups that care about this issue and want to help can do? Aside, of course, from electing people who can change who’s running those departments.
Maybe one thing that would be helpful would be to get educated on the immigration system, which is hard. I’ve been practicing exclusively immigration law, I don’t do anything else, for seven years, and I’m still learning things every day, or finding out I was wrong about something. It’s a really complex area of law, and it’s really easy for politicians to talk platitudes around this issue. So if you’re gonna go to a town hall, or you’re gonna put pressure on a politician, and they say, “I’m definitely for working out a pathway towards legalization,” you can respond. You have to know enough about the system, so when people say, “They have to do it the right way,” or, “Get in line,” you know all of these things are bullshit.
If you don’t know enough about how the system actually works you’re not in a very good position to put real pressure on these people, because they can get away with saying stuff like that. So people need to get educated and to learn about the challenges that people face in order to confront those in power, that’d be one thing.
I also think, regarding the “Abolish ICE” thing…you know ICE didn’t exist 10 years ago. It’s a young agency, there was nothing even like ICE. But just because ICE didn’t exist didn’t mean there wasn’t immigration enforcement before ICE. INS was in charge of all that.
So you can get rid of this thing called ICE, but as long as the underlying laws are broken, and as long as there’s some enforcement mechanism of a broken set of laws, you’re going to end up with these terrible injustices. I wish the left were a little bit smarter about how they advocated for immigration reform or change. Abolish ICE, OK, but replace it with what? That’s one of the frustrations I’m having right now,
One other thing, right now there seems to be a lot of purity policing going on. Like if you want to criticize Trump, they say you have to criticize Obama first, you know you have to show your receipts for the times you complained about Obama before you can complain about Trump. And Obama was terrible, and we need accountability, and people should be informed about the fact that this is really a bipartisan problem, but right now we're fighting fascism. Some of that I see, trying to sort of conflate the two and pretend like they’re the same, I mean Obama was bad but Trump is worse. So people need to stay focused right now.
There’s this thing you see on Twitter, “If Hillary was president we’d all be at brunch right now.” One reason that bothers some people on the left is, as you said, under Obama there were a lot of terrible immigration policies. All these people who are now riled up because Trump is such a terrible person, and, as you say, a fascist, would they be that way if instead it was Hillary and we were back to Obama-style immigration policies? Would they be up in arms?
I don’t know about that, and I do think there are people who are cynically caring – they don’t actually care about the issue, they’re sort of feigning interest. I think you can make a mistake by having an exchange on Twitter and thinking that’s what’s going on in the world right now. I met somebody who tweeted some sort of concern, and someone was like, “This has been going on for a long time, so fuck you and your fake concern!”
This degree of hostility to people who are maybe engaged with the concern train – yeah, maybe they should have cared earlier, but if they’re caring just right now, or for the first time, let’s let them care now, and let’s not disinvite them. Let’s not say that they’re unwelcome, because they’re either historically unaware or they didn’t care enough in the past.
It’s a fine line. I’m kind of wanting it both ways. I want people to be informed. To say, you know, welcome aboard, this is a bipartisan problem. By the way, most of the people who I meet who don’t qualify for anything, who’re totally screwed by our immigration system, can trace that back to the 1996 immigration reform bill. It passed Congress and was signed by Bill Clinton, and Bernie voted for it as a member of the House.
So these people who think they’re above the fray because they didn’t like Obama or Clinton, they might be Bernie supporters who are unaware that even Bernie himself, who I’m a fan of and who I’d vote for 10 times out of 10, in his small way has contributed to this problem. So, nobody is above reproach, but we have to be more welcoming I think of people who are just now coming around on this issue.
Are there any particular legal developments that for you would be deeply concerning should they occur?
If they go after birthright citizenship, that’d be a concern. There’s no case on the docket, but that’s been something they’ve wanted to go after for a long time. Basically anything they’re trying to do right now concerns me.
On Twitter and in your podcast you often mention how, when it comes to immigration, there is no line for people to wait on. Can you briefly explain what you mean when you say there isn’t a line?
In short what I would say is there are something like 11 or 12 million people who are undocumented, not by choice. Those are people who, if they could come here legally, they would. But there aren’t the number of visas available to meet demand, so people often have no choice but to come undocumented.
The idea that it’s a choice, that it’s like a lifestyle choice, is just a lie.
There are some people who wait for family visas, but that’s a separate issue. There’s no line. There is not a line.
The people who say, “They should get in line,” what those people are saying, actually, in a weird way, is that they agree with you. They imagine that there’s a system that people can enter into, put down their name, and wait for a visa. What I tell those people is that they’re imagining a system, that’s not how it is, and I agree with them that there should be a system like that. So let’s change the law, let’s make the line that you think exists, and let’s allow people to come forward and apply for papers.