By Megan Phillips, CFCC Student Fellow (2019-2020)
One of the central messages of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts is that of therapeutic jurisprudence. This concept means, among other things, that the legal system (e.g., courts, attorneys, and judges) should take a holistic view of the legal process in any case. The Center specifically focuses on cases involving children and families. Therapeutic jurisprudence asks the legal system to consider the psychological effects of the legal process on children and families. Therapeutic jurisprudence reminds those involved in the legal system to be mindful and considerate of the effects the legal system can have on children and families. With that said, it seems unpalatable that the same legal system that is supposed to be therapeutic would function the way it does in the immigration legal system.
Crossing the United States border not at a port of entry often constitutes a misdemeanor criminal offense, and returning to the United States after being deported constitutes a felony. 8 U.S.C.A. § 1325, 1326. This means that an undocumented person could be tried criminally first, and then go through immigration court. Many constitutional rights apply to undocumented immigrants, such as the right to due process of law and the right to counsel. Reno v. Flores, 507 U.S. 292 (1993). However, because in some instances crossing the border is only a misdemeanor offense, the Sixth Amendment right to counsel does not apply. Only in felony cases would the Sixth Amendment right to counsel apply. Giddeon v. Wainwright, 372 U.S. 335 (1963). There is also no right to government- appointed counsel in immigration court. Many non-profit legal organizations are taking up these criminal cases pro-bono, but the number of volunteers pales in comparison to the overwhelming number of cases. This has led to a backlog of pending cases in the immigration system.
This backlog in the immigration system has left families stranded at the border for extended periods of time, unable to cross into America and unable to return to the situations they left, even if they wanted to return. Every day there is a new report in the news of overcrowding in detention centers, children being separated from their parents, and children falling ill due to conditions in the detention centers. I believe it is our duty as officers of the court, whether you are a law student, a practicing attorney, or a sitting judge, to lend a hand to help decrease the number of immigration cases stuck at the border. The court system cannot possibly be a therapeutic, welcoming process when so many families lack an attorney for their criminal case and are thus subject to an unfair legal process. When I graduate this May, I am determined to focus my annual my pro-bono obligation on helping immigrant families navigate the legal system in the easiest way possible. I believe it is my duty as a soon-to-be-lawyer, who knows what impact the legal system can have on children and families, to help undocumented families enter the country safely and legally.
Coming specifically from a therapeutic jurisprudence mindset, I believe that lawyers are in an incredibly important position when it comes to speaking to an immigration client. These clients have likely never been to the United States before, may not speak English, and may be worried or afraid of our immigration system based on what they hear in the news. As the face of the legal system and most often one of the first people an immigration client will speak to, lawyers should be aware of how their presence will affect the client. The words we choose, the tone of voice we use, and the characteristics of the setting in which we meet with the client all shape how the client views our legal system. As such, immigration lawyers should utilize all of the tools our court system has to offer to ensure that the immigration process is as smooth and stress-free as possible for the client. This will help ensure that our immigration legal system is as effective as possible, while not causing further trauma.
One thought on “Thoughts on Therapeutic Jurisprudence and Immigration”
Great post Meghan. I completely agree with your position. As we’ve discussed in class this semester and in other courses like professional responsibility, lawyers can be very one track minded. Sometimes this is good because it makes lawyers determined to get the best outcome for their clients, but it can be harmful to the clients when we don’t really listen to what they need. We need to understand how certain legal decisions may impact them especially when they are already so vulnerable to abuse like many clients in the immigration system are. TJ can ensure that lawyers are giving the clients the help they need and not just leaving them even more traumatized then they were when they entered the system.