Reflections on the Right to Counsel

By DeAndre Augustus.

My week working with Southeast Immigrant Freedom Initiative (“SIFI”) has truly shown me the importance of the legal representation that immigrants need while fighting for an opportunity to stay in America. I volunteered to do a court observation, but little did I know how this observation would impact me and how it would assure me of how much we—volunteers, law students, attorneys, humanitarians—are needed by immigrants.

I found out that the court case I would be observing would be that of Andrea, a trans-woman who fled her home country in Central America due to violence. At the very beginning of the hearing, the U.S. Immigration and Custom Enforcement (“ICE”) Attorney asked Andrea what her preferred pronoun was. She answered that although she did not really mind, she would prefer to be called what she is now, a woman. I sat there while she shared her story of being sexually assaulted at a very young age, and then realizing that she was gay and the persecution she would then begin to receive. She continued her story by further sharing her realization that, not only was she gay, but that she was a Trans-woman, living in fear of transitioning while in her home country.

I instantly became overwhelmed by her story. However, I also observed that the simple request this woman had, was being ignored - the judge continuously referring to her as “him”, “he” and “sir.” Please note, she was wearing very beautifully done make-up so that there should have been no confusion as to what she is now – a woman.

As Andrea continued her story, she stated that she was not just openly living her life as a then gay-man but she also became an activist in her community, fighting for LGBT+ rights. She showed us pictures of herself doing such activism. She described being harassed, threatened, and roughed up by a local gang because she was living as an out gay man. She shared how she went to the police to report the incident, but described the police as not being focused on her victimization but more so focused on why she was living her life like that at the time. After feeling victimized again, this time by the police, she left in frustration and decided she would fight back her own way. She then described how she contacted the media to call out the local gang for its behavior. She stated that soon after, she saw the local gang on the street again, but that she was so overwhelmed by fear to the point that she stopped what she was doing and fled in her car.

When she got home, she described the incident to her mother—her single mother who was raising her and her two siblings. It was then that her mother’s fear became unbearable for the safety of her daughter and the rest of the family. Her mother then told her it was best if she fled to the U.S. for safety. The United States of America, being the one place her mother KNEW as a place that would allow not only for a gay man to live in peace but would also allow that gay man to thrive and become a valuable member of society. However, the one thing her mother did not account for is the strong opposition, almost hate, that much of the U.S. has for non-European immigrants.

Andrea stated that while in the U.S., she first felt comfortable enough to make her transition to be the woman she always wanted to. Andrea was able to proudly live her life as the woman she knew she was. Unfortunately, this new freedom was short-lived, for briefly after entering the U.S., Andrea was captured by officials and, now here she was pleading for her liberty.

While she was speaking, I observed the judge question her and continuously attempt to poke holes in her story in order to hope to find discrepancies and invalidate her fears. The empathy I felt for her overcame my body as I came to a simple realization - this woman needed one thing, representation. I realized how the things she was saying in Spanish could have been translated into something different when translated into English. I noticed how with a little preparation her story could have come across so much smoother and stronger. I noticed how if someone was there to comfort her during her frustrations, the answers being sought could have been presented in a more direct manner. I noticed that for this woman to present a case that could have swayed the judge, all she truly needed was an Attorney. Unfortunately, Andrea had none of this. Because of this Andrea was forced back to her home country, where those same bigots that tormented her are still roaming and lawlessly owning the streets.

At the age of six years old, just from watching almost any television show I could recite your Miranda Rights with my eyes closed. One of those principles for a criminal defendant is the "right to have to an attorney, and if you cannot afford one, one would be appointed to you." The Right to Have an Attorney . . . one of the most important Due Process rights this wonderful country prides itself on. Regrettably, as Andrea and I learned, immigrants fighting for asylum in this country simply don't have those "wonderful" rights.

*In order to protect the person’s true identity, the individual’s true name has been changed to Andrea.