Accompaniment in Court: The Legal Fellow Program

Two years ago, the KBI added to its direct aid, advocacy, and education programming by collaborating with the Florence Immigrant & Refugee Rights Project to create a Legal Fellow position dedicated to representing asylum seekers served by the KBI. The program has extended the reach of accompaniment, reinforced advocacy efforts, and saved lives.  

In recent years, the KBI has encountered increasing numbers of asylum seekers at the comedor—primarily Central Americans and Mexicans passing through Nogales en route to presenting themselves for protection in the U.S. including people wrongfully deported or pushed back into Mexico. Many fled extreme violence and persecution, and while the KBI offered information about the asylum process, it was clear that these individuals would benefit immeasurably from sound legal advice and representation.

To address these concerns, the staff of the KBI and the Florence Immigrant & Refugee Rights Project discussed ways to creatively respond to the legal needs of migrants in southern Arizona. The KBI offered a binational advocacy perspective, a presence on the U.S.–Mexico border, and direct aid programs that helped identify asylum seekers; the Florence Project provided extensive legal expertise, social services, and interdisciplinary resources for adults detained in Florence, Arizona and Eloy, Arizona, where the KBI conducts a visitation program, as well as for unaccompanied minors in southern Arizona shelters. Together, they established the jointly–funded Legal Fellow Program in August 2017 to expand legal services by providing orientations and consultations to migrants in the KBI’s comedor, and extending that accompaniment to adults detained in Arizona after presenting for asylum in the U.S. The program allows both organizations to respond more directly to the urgent and growing need at the border.

IMPACT OF REPRESENTATION: The asylum process is a complicated and arduous endeavor, holding out the hope of safety, but fraught with challenges, hurdles, and misinformation. Most applicants are denied—for every approved applicant, there are ten applicants for whom asylum is not granted. In FY2018, when a record-breaking number of applications were filed, 65% of them were denied. Proving persecution requires fastidious evidence collection; particular judges can be unsympathetic (denial rates vary from court to court); and with most applicants representing themselves, a lawyer can make all the difference. Applicants with legal representation are five times more likely to be granted asylum, and it’s even more difficult to win asylum when trying to mount a compelling case from detention. At the Florence and Eloy facilities, the denial rate is 94%.

The timing of legal assistance is also an important factor, not only for establishing important details and a consistent narrative during a period of emotional upheaval and trauma recovery, but also for collecting evidence and building cases. “We’re interacting with folks at a critical moment when they’re figuring out how to approach the asylum process and what it looks like,” says Alex Miller, the KBI–Florence Project Legal Fellow since January. “If they decide to pursue asylum, the best time for them to prepare their case is before they find themselves in detention.” As she points out, asylum seekers can scan or photograph evidence—medical records, police reports, letters, and other documents—using their cell phones, and email them to attorneys, advocates, or family members, before the devices are confiscated (and typically not returned) at detention facilities. Such organized and well-prepared evidence is essential to winning cases.

SCOPE AND STAFFING: In her work as the KBI–Florence Project Legal Fellow, Alex represents asylum seekers first encountered at the KBI and detained in Eloy and Florence facilities. (The position was first held by Rocío Castañeda, now the Special Projects Attorney with the Florence Project.) With the support of a half-time legal assistant and a summer intern, Alex handles not only their asylum or removal proceedings, but also all related matters, such as hearings for bond and parole, credible fear preparation, or civil rights complaints. The team also documents cases of wrongful removal, when people who have expressed fear are deported instead of being referred to the asylum process; conducts bi-weekly legal orientations and individual consultations for people in Nogales, Sonora who plan to present at the border; and offers information and referrals. Anthony Pelino, a long-tenured pro bono attorney with the Florence Project and current Managing Attorney, oversees their work. Though the target workload for the program is 15 matters each year, Alex and her colleagues are on pace to exceed that goal—three asylum hearings; one voluntary withdrawal of application (to avoid the penalties of an official deportation order); six parole requests; and 3–4 pending asylum cases.

In addition to meeting the criteria already mentioned, selected cases are often ones in which the asylum applicant has endured violent, life-threatening persecution or suffered abuses traveling through Mexico. In 2018, more than 8% of people served by the KBI cited violence as their primary reason for migration. Cases for applicants with specific vulnerabilities (a medical condition, for instance, or gender identity) receive special consideration, as do cases for Mexican asylum seekers. The number of Mexican migrants seeking asylum has increased dramatically in recent years—in 2018, one in five claims came from Mexican applicants—yet asylum is granted in only 13% of these cases (compared with 35% overall). Finally, cases in which representation is crucial—when legal counsel can make the difference between winning or losing—are prioritized. In the first year and a half of the program, 17 cases were litigated by the Legal Fellow.

EXPANDING LEGAL SERVICES: The Legal Fellow has forged new terrain for the KBI, building on its humanitarian presence at the U.S.–Mexico border and its advocacy efforts, and has enhanced the already well-established and extensive legal services offered by the Florence Project. Today, this unique collaboration is more necessary than ever, and it’s already expanding, building on the resources of the KBI and the Florence Project. The number of legal orientations has multiplied to serve the large numbers of people (sometimes well over 100 waiting outside the ever-busy comedor) who wish to attend, 20 at a time, and the half-time legal assistant will be a full-time position starting in September.

As Joanna Williams, KBI Director of Education and Advocacy, explains, “The program gives us the adaptive capacity to respond to changes at the border, in part because its structure is already in place and we can expand or reorient as needed.” The KBI’s new facility in Nogales, Sonora, set to open this fall, adds to this ability and will accommodate more growth. The building will house a Legal Fellow office (in addition to the one in Tucson), classrooms for orientations, and dedicated spaces for consultations that afford the privacy required for such sensitive meetings. Through the KBI–Florence Project Legal Fellow Program and all its programming, the KBI remains ready to serve—strategically, directly, and compassionately—the many migrants and asylum seekers who turn to the KBI in their time of greatest need.