This article originally appeared in LAist on May 3, 2017.

 

W hen he was a teenager, Phal Sok lost his father to cancer. Then his life started to go sideways. “I got involved in the streets,” he told me, on his way out of a check-in appointment with immigration authorities. He held up a sewing shop, and was tried and convicted as an adult. He served 15 years in prison.

 

Sok was born in Cambodia, but he was just an infant when he was brought to the United States by his parents, who fled the country’s savage civil war. Now, at 35 years old, he faces the prospect of deportation. “I came here when I was 61 days old. I don’t know any other life than this,” he said.

 

On an afternoon in early April, Sok was among about 30 immigrant rights activists gathered outside of the office building of the Los Angeles County Board of Supervisors, in downtown L.A. The group was there to meet with Hilda Solis, the former Labor Secretary for the Obama administration who is now a County Supervisor. They did not have an appointment.

 

They were received without enthusiasm. Even though the building is public, for about ten or fifteen minutes, the group was forced to face off against a sheriff’s deputy. “The Sheriff was up in arms,” was how Solis described the scene to me. “They treated us pretty disrespectfully,” was how Andrés Kwon, an attorney with the ACLU of Southern California who was part of the group of activists, put it.

 

Two days earlier, the activists had gotten word that Solis was behind a proposal to bar anyone with a prior violent felony conviction from accessing the L.A. Justice Fund, a $10 million legal defense fund for undocumented immigrants in deportation proceedings that is in the process of being set up (unlike in criminal proceedings, defendants are not guaranteed counsel in immigration court). When the fund was announced last December, partly in response to Trump’s election, immigrant rights leaders envisioned it as being universally accessible: as long as you were under threat of deportation and couldn’t afford private counsel, the fund would provide you with a lawyer. “What we’re saying is they should just have access to due process,” Sok, who, under the proposed rule, would be denied access to the fund, said.

 

Now, activists feared that politicians were adopting the framework of the Trump administration, and the Obama administration before it, by dividing immigrants into categories: good versus bad, deserving versus undeserving, law-abiding versus criminal. The City of Los Angeles, which is jointly financing the L.A. Justice Fund along with the County and private philanthropic groups, had already adopted a similar restriction to what Solis had proposed, as had state lawmakers, who were establishing a California-wide fund. Now Solis was bringing the county in line with these carve-outs. “We were concerned that it seemed there was no room to negotiate on a fundamental issue that would undermine the integrity of the L.A. Justice Fund,” said Emi MacLean, an attorney with the National Day Laborers Organizing Network. “We hoped and still hope to have room to discuss this with Supervisor Solis.”

 

For several months following Trump’s election victory, there was an easy consensus on the part of California politicians and the immigrant rights movement of uncompromising opposition to Trump’s deportation regime. But now that political rhetoric is being put into policy, that unity has begun to unravel, especially over the question of the rights of immigrants with criminal histories. The California State Senate recently passed its $12 million statewide counterpart to the L.A. Justice Fund. Originally known as the “Due Process For All Act,” Senate Bill 6 was renamed the “Expanding Due Process Act” after its author, Senator Ben Hueso of San Diego, agreed to compromises that excluded eligibility by immigrants with violent felony convictions. Immigrant rights groups that had initially championed the bill, including the American Civil Liberties Union, withdrew their support for it.

 

In the state legislature, the compromise was necessary to achieve the two-thirds majority required for the bill’s passage. In the Los Angeles County Board of Supervisors, where progressives hold 4 out of 5 seats, the political arithmetic is much simpler. Yet elected officials in Los Angeles are insisting on adopting the Senate’s language for the local measure nevertheless. “The City of Los Angeles should not be following the lead from the most conservative parts of the state,” MacLean told me. “Our elected officials should be responding to the demands of our population here, which is an incredibly diverse and progressive population that is deeply affected by the egregious immigration enforcement policies coming from Washington.”

 

“In L.A., the reasoning is full of s**t,” Kwon said.

 

To immigrant rights activists, the carve-out for defendants with violent felony convictions is anathema not only because it violates the basic moral principle of equal protection under the law, but also because, they believe, it will put legal representation out of reach for immigrants who do not qualify as “dangerous criminals” under any intuitive understanding of the phrase. Victims of domestic violence, for example, are frequently charged with domestic violence themselves, when their abusers accuse them of battery for fighting back in self-defense. Even when an immigrant is unquestionably guilty of the crime they had been convicted of, no statute of limitations has been proposed after which the charge is considered no longer relevant to the determination of eligibility for legal representation sponsored by the fund.

 

“Why is it that if I did something 10 or 15 years ago and I served my time, and I’ve been a good person since, haven’t committed any crimes, then why does it come back and haunt me?” Maria Elena Durazo, a veteran labor and immigrant rights leader in L.A., wondered.

 

There are other problems with the exclusion. Defendants in criminal court who are charged with crimes that, under federal immigration law, result in automatic deportation (such as petty shoplifting), routinely “plea up” to more serious charges that may invite longer sentences but are “immigration-safe” (such as commercial burglary). For these defendants, unless they can afford private attorneys, the carve-out would force a choice between expedited removal on the one hand, and going to immigration court without a lawyer on the other. Moreover, under the carve-out language, if a defendant were to show up to a removal proceeding without a lawyer and explain to the judge that she was ineligible for the fund, the judge could easily surmise that she must have a prior violent felony conviction and should be deported. “It essentially outs their criminal history,” said Meeth Soni, an attorney with the Immigrant Defenders Law Center. These defendants would be better off if the fund didn’t exist at all.

 

ILos Angeles implements the L.A. Justice Fund as it is currently being conceived, it will be the third metropolitan region in the country to establish a defense fund for undocumented immigrants, after New York and San Francisco. But it will be the first to fall short of universal representation.

 

Oren Root of the Vera Institute of Justice is one of the designers of the New York Immigrant Family Unity Project (NYIFUP), the L.A. Justice Fund’s predecessor in New York, which has been up and running since 2013. NYIFUP is a universal program, available to any immigrant in detention in New York who cannot afford counsel. The very idea of the carve-out seemed bizarre to Root, especially given that those with criminal convictions are, almost by definition, those most in need of guidance from an attorney. “The law that involves what criminal convictions will make one deportable is very complex,” he said. “There are any number of decisions that are made, often late in the appellate process — which is a sign of how complicated this is — that a given decision does not make someone deportable. But those are the kinds of claims that by and large only an attorney is going to be knowledgeable enough to make.”

 

“It goes against the whole purpose behind the program,” said Bridget Kessler, an immigration attorney with Brooklyn Defender Services. “It’s like saying that because your case is complicated, we won’t take it.” Kessler has represented numerous clients with criminal histories who the court determined were eligible to remain in the United States, often because the circumstances behind their crimes painted a much different picture than their charges suggested. In one case, a victim of domestic violence threw an object at her abuser, and was charged with felony assault with a deadly weapon. She pled guilty out of fear that her children would be put in foster care if she remained detained while fighting her case. On paper, the violent felony charge told a simple story; in court, attorneys were able to provide a context that showed a more complex reality. But under the carve-out, the L.A. Justice Fund would only recognize the former. “Once you make a decision on some bright line rule, there’s no ability to know who they are or what happened,” Kessler said.

Being provided with legal representation, both Kessler and Root pointed out, does not mean that a defendant will be allowed to stay in the United States. Indeed, having a lawyer often expedites deportation for those without a credible case for remaining in the country. “If people are told from a trusted source that they don’t have any viable claim, one of the things that they’ll often do is just say, well, there isn’t a lot of point sitting in detention for a few months, fighting a futile case and ending up with the same result as if I accept the inevitable now,” Root said.

 

Instead, the carve-out will leave these defendants to make complicated legal decisions based on fear and hope alone, and keep the courts stuck with a cookie cutter approach to administering justice. “It’s buying into a really false framework — the idea that there are good immigrants and bad immigrants,” Kessler said, “and you can tell it from some magical formula of what’s on their rap sheet.”

 

E ventually, the activists outside of the Los Angeles County Board of Supervisors office building were allowed inside. They met with Cindy Chen, Solis’ chief of staff. “It was a powerful meeting,” said Carlos Amador, Organizing Director with the California Immigrant Policy Center. It mostly consisted of immigrants in the group sharing their stories, and urging Solis not to betray the fund’s initial promise of universal representation. “Her staff was receptive to hearing what we had to say,” Sok told me. “I think she was sympathetic to us,” he said of Chen.

 

At one point, one of the participants remarked, “If the intention of the County Supervisors is to stand with the Trump administration, this motion does this.” Chen bristled at the insinuation. As a state legislator, a Congresswoman and an Obama administration cabinet member, Solis has long been a vocal advocate of immigrants’ rights, which made her position on the L.A. Justice Fund even more confounding to the activists in the room. “She’s a champion of immigrants, this, that and the other, but I think she’s taken a different view,” Sok said. “I think it’s just that they’re trying to keep their political careers alive,” he remarked about local elected officials in Los Angeles.

 

If the carve-out is included in the final version of the fund, outside initiatives will take on an enhanced importance. The local labor movement in L.A. is setting up a separate network of attorneys, accessible online, to provide counsel to immigrants who are union members or members of union households. It does not discriminate by criminal history. “Everyone, regardless of background, deserves equal access to the justice system,” said Rusty Hicks, the head of the L.A. County Federation of Labor. “For some, universal representation is the only path to a real second chance.”

 

Its reach, however, will be limited to the resources available to it. “We want to help anyone who steps through our door, but the need is always greater than our resources,” Hicks explained.

 

Another alternative is a compromise provision. The city’s version of the measure includes language that allows for the “legal service provider” — the private law firm or non-profit organization that provides the attorneys to represent immigrants covered by the fund — to override the carve-out, if a person has a meritorious claim to remain in the United States. Immigrant rights activists are fighting to protect that language from being cut by the city, and for it to be added to the county’s version.

 

The provision falls far short of universal representation, but it bridges the gap for Durazo, whose voice is critical in any debate in L.A. regarding immigration. “Without a doubt universal representation is what I believe in,” she told me, but she could live with the compromise measure.

 

In the meantime, county officials seem to be waiting to see what the city does, rather than pushing forward in the face of mounting criticism from immigrant rights leaders. “I don’t think people have been very fair to the County and to my efforts,” Solis told me. A few days after her staff’s meeting with the activists, however, Solis pulled her measure from the agenda of the Board of Supervisors meeting at which it was scheduled for a vote. No new date has yet been set.

 

If the measure ends up moving forward with the county’s previously proposed language, immigrant rights leaders fear that the L.A. Justice Fund, which began as such a bold rejection of Trump’s demagoguery, could end up being co-opted by Trumpian assumptions.

 

“Donald Trump’s simple-minded thinking is not what Los Angeles should be basing its policies on,” MacLean said.

 

“We’re defining who’s a good immigrant and who’s a bad immigrant? We’re falling into that trap,” Durazo said. “I thought we’d moved on from that.”