Lindsay Toczylowski on Due Process Violations and the Breakdown of U.S. Immigration Policy

Conducted and transcribed by Ande Troutman (CMC ’19), Staff Writer

As a founding member and executive director at the Immigrant Defenders Law Center, Lindsay Toczylowski has dedicated her career to advocating for and protecting immigrants’ access to a fair trial and due process. What challenges do immigration attorneys in today’s political climate face? How does the “good vs. bad” immigrant narrative affect access to legal representation? Toczylowski, who is also a member of the Board of Directors for the international refugee rights organization Asylum Access, discusses the ways in which the U.S. legal system systematically and unfairly denies basic legal principles to immigrants facing deportation.

CJLPP : Your work focuses on challenging systematic injustices that occur against immigrants and refugees in the U.S. legal system. How did you develop this expertise, and why do you think it is important in today’s legal climate in particular?

Toczylowski: I became interested in immigration law when I was still in law school at USC [the University of Southern California Law School], doing the immigration clinic there. One of the things that I realized right away, even during that clinic, was that I was doing it because there were not enough lawyers representing immigrants. Many people actually have to go to court without legal representation. And what you see when you go and stand in immigration court is that we have a system in the U.S. where little kids, adults who have mental health issues, sick people, people who don’t speak English—all of those people are expected to walk into court, in downtown LA and defend themselves and their lives against a highly trained government attorney. I started seeing these issues very early on when I was still a law student and decided to make it my career. I eventually founded the Immigrant Defenders Law Center to answer a fundamental issue within our legal system, a fundamental imbalance, and a fundamental violation of due process. If I told you there is a place where, if you visit without the correct paperwork, you could be put in a remote detention center without access to your family or a lawyer, and that you would be expected to defend yourself in another language, most people would never visit that place. But that is something that happens routinely across the U.S. everyday, and so I have made a career of trying to remedy that.

CJLPP : Speaking specifically about due process violations, for the cases that you work on, which part of due process do you find is most often violated?

Toczylowski: Immigration is extremely complicated. An example of this is a case I recently worked on where we had a client who had just turned 18-years-old, went into a adult detention center, and was deported because he could not figure out how to put together what is called an I-589, otherwise known as an asylum application. Because he was unable to physically figure out how to put it together, the judge ordered him to be deported. This means that even though he has a fear of returning to his home country, our system was set up in a way that did not allow him to present his own defense to deportation. We routinely see people who may be eligible for legal relief to remain in the United States with their families but are unable to do so because they are not entitled to representation. Right now in the United States, under the case of Gideon v. Wainwright, you are guaranteed a lawyer if your life or liberty is at risk. So, if they are going to put you in jail for a crime, then you are entitled to a government-funded attorney. However, for asylum seekers and others, the threat of being exiled to a place where you have never been or do not remember, the threat of separation from your family and friends, and of being taken from your home could be even worse than a year in jail.

CJLPP : Can you talk about a specific policy that systematically oppresses refugees? How does this policy accomplish this, and what are some ways to prevent or mitigate this oppression?

 

Toczylowski: The biggest one right now is part of the executive orders under Trump. There has been a cessation of refugees entering the U.S. entirely. So, while the U.S. used to accept a certain number of refugees to be resettled here, they are no longer accepting any refugees. If those policies continue under this administration and future administrations, the United States will become a place with no refugee population at all. However, there are litigation challenges to the refugee ban and to the Muslim ban. At the crux of the legal argument is that these bans have an animus and racial component. If the reason the Trump administration is moving forward with those executive orders is for discriminatory purposes, then they will not be upheld in the Supreme Court. But, for refugees sitting in refugee camps those changes may come too late.

Another important policy was the Supreme Court decision on February 271 that said the INA [the Immigration and Nationality Act] doesn’t require immigrants to have bond proceedings at the six-month mark––meaning that the government can detain people indefinitely. The only way for people to challenge that detention––it is important to note that people in this situation are often in private detention centers without access to their family or a lawyer––is if they have a federal habeas [corpus] petition and ask a federal court to intervene. This brings us back to the beginning of our conversation. How in the world would anyone do that if they did not have a lawyer? There just aren’t enough lawyers to file that in every single case. So that Supreme Court decision that came down, and the government’s continued position that they can continue to detain people as long as they want while deciding the case, systematically creates a subclass of people in the United States who do not have the same constitutional rights as the rest of us. That is something that our immigrant defenders and others will continue to fight against. This is a really disturbing turn of events––very discouraging—because in the current political climate, we have a president who, in every instance, has promoted detention. So, the idea that he is now going to take this Supreme Court decision and continue to hold people unconstitutionally is discouraging.

CJLPP : How can people without a law degree support immigrants or refugees?

Toczylowski: One of the biggest ways that people can contribute is get involved politically with advocates on these issues. We have a coalition of different participating organizations called ICE [Immigration and Customs Enforcement] Out of LA. There is also the LA Raids Rapid Response Network, which has a component for lawyers to agree to represent people, but it also has a component for people who are interested in organizing around these issues. So, when ICE goes to do a raid on a grocery store in south LA, it is important that community members will show up, and videotape what is happening. You don’t have to be a lawyer to do that. That information that you gather and those videos that you take could be used to build a legal case for a Fourth Amendment violation that leads to that person’s arrest which could save somebody from deportation.

We are always asking people to become involved with advocacy resources to increase access to justice for immigrants. That can involve following organizations like Immigrant Defenders, National Immigration Law Center, and the California Immigrant Policy Center on Facebook. Then, when they ask people to show up at city council meetings or make a visit to your state assembly member show up. Make sure you are engaged and that you encourage others to show up as well. Sometimes we ask people to tweet and push for specific policies, so there is a lot of ways to get involved in political advocacy. Southern California is a diverse place in terms of elected representatives and Congress, and one of the most important things for immigrant rights is going to be flipping the House [of Representatives,] come the midterm elections. Even if your district is solidly democratic, making phone calls and knocking on doors is important too. That may seem separate from immigrant rights, but the midterm elections are going to be so important for the immigrant rights movement because if Republicans retain the House and the Senate, the policies that are being predicted are dire.

 

CJLPP : Do you find that policy makers are adaptive in creating policy in response to international emergencies? How do you expect U.S. policy to change in the future in response to more immigration?

Toczylowski: The short answer is no, I don’t think that we have been very adaptive to the situation. Right now, we have a huge refugee crisis coming out of Syria and other places, and the U.S. has shut its doors to refugees. When it comes to asylum seekers who are already across the border, our immigration laws and asylum laws are far less lenient than the rest of the world. We look at cases coming from Central America, and they are usually asylum cases that are based on the fact that people are fleeing gangs, and our government creates policies that are specifically targeted to keep those people from getting asylum. If we wanted to be responsive, we should look at the most severe situations just south of us and ask how the U.S. can help work with this population, but instead we look for ways to do the exact opposite. Our policies should also look at what role the U.S. played in creating refugee situations. A lot of the gang issues that are happening in South and Central America right now are a direct result from U.S. deportation policies twenty years ago, where large numbers of gang members were deported from mostly Southern California to El Salvador. That created a transnational gang network, which refugees now are fleeing from.

CJLPP : Going back to what you said about there not being enough immigrant lawyers: how do you combat immigration issues effectively when there is such a lack of resources?

Toczylowski: One thing that we are doing as immigrant rights advocates is trying to educate the community, so that they understand their rights because everybody does have constitutional rights in the United States. We want people to understand their rights, so they can stay out of ICE detention in the first place. This involves making sure people know that they do not need to answer their door if the ICE comes. And, unless there is a judicial warrant for their arrest, they do not even need to open the door. People need to know that they have the right to remain silent; they don’t need to incriminate themselves. So, making sure that we can keep people out of the system is the most important. In terms of what we can do when people are already in immigration proceedings or detention, there are a few things we can do. In California we have created campaigns locally for additional funding to hire and train lawyers to do this work. Over the past year, coalitions have gotten the state to put forth 45 million dollars for immigrant defense. We got the city of Los Angeles and the California Community Foundation to put together the LA Justice Fund, which is a ten million dollar fund to provide immigration lawyers. Once the funding is in place, which luckily is starting to happen, the really hard work is getting young lawyers who want to make a career of publicly defending immigrants. So, we are continuing to recruit and hire young lawyers to come do this work.

CJLPP : As of June 2017, according to the UN Refugee Agency, 65.6 million people have been forcibly displaced from their homes. How have crises like the Syrian refugee crisis changed policy towards refugees coming to America?

Toczylowski: Unfortunately, U.S. refugee policy has been unchanged and remains indifferent to the actual refugee crises around the world. Most Syrian refugees and refugees of any humanitarian or environmental disaster will usually end up in a neighboring country as a refugee. Less than one percent are resettled to Europe or the United States. Amongst this one percent of refugees, the U.S. would traditionally take a very small portion of them, but given the Trump Administration’s executive orders in relation to the Muslim ban

and refugees, we are not taking any right now. Because of that, the refugee crises around the world have continued to grow while the U.S. has essentially closed its borders.

CJLPP : How has your work at the Immigrants Law Defense Center strengthened your skills as a lawyer? What assets has it built on?

Toczylowski: At the Immigrant Defenders Law Center, we consider ourselves to be rebel lawyers. So, we are using our law degrees to hopefully change the way that immigration court works all together. Founding the organization and having the audacity to think that a bunch of us could just set up shop and start working towards change taught me about the power of boldness. Recognizing that to truly be a rebel lawyer you need to put your own neck on the line in order to get the best result for your client. We have really created a different style of lawyering, which has not been seen in immigration court before. That has changed me as a lawyer because it has given me hope that many other young lawyers will become invested in these issues as well.

CJLPP : What is the greatest challenge you face as an immigration lawyer?

Toczylowski : The greatest challenge right now is that the Trump Administration and Jeff Sessions are systematically dismantling protections that took dozens of years to put in place. So, a lot of the progress that was made under the Obama Administration and even during the George W. Bush Administration––those protections are being dismantled. Whether that is being done through an executive order or through challenging the Board of Immigration Appeals cases, or through immigration ICE enforcement and policy, or through getting rid of DACA policies.2 These are our greatest challenges. Hurdles are being put up all around us. Immigration law is now much more challenging than it was a year ago. Because of that, there is a huge risk of burnout amongst advocates. Sometimes it feels like there is very little progress being made, but then we get those really amazing decisions like what happened in the Supreme Court with DACA this week, where they essentially told the Trump Administration that they would not hear the case, meaning that, for now, DACA will remain in place. The only thing we can do is keep fighting and hope that during the midterm elections we can wrestle at least one branch of government away from people who are determined on dismantling immigrant rights across the board.

CLJPP: Thank you for your time and expertise.

 

1 Jennings v. Rodriguez , No. 15-1204 (U.S. Feb. 27, 2018), available at https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf.

2 Deferred Action for Childhood Arrivals was a program that granted temporary relief from deportation and legal authorization to work/study for undocumented persons who arrived in the United States before a certain age

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