JURIST Guest Columnist Makousse Ilboudo of St. John’s University School of Law Class of 2016 is the third author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Makousse discusses the need for regulation to ensure fair and humane treatment of immigrant pregnant women in detention… In 2014 five-month pregnant Sugey Carrazco was apprehended at a US border and held in a detention center in San Diego, Texas. She was seeking asylum from Mexico and escaping an ex-husband who assaulted her. She did not have a criminal history. She and others like her complained they were severely underfed and lacked basic medical treatment. Throughout her confinement, she did not have access to legal counsel.

Sadly, Sugey’s story is not rare. There are hundreds of undocumented pregnant women who have not committed heinous crimes and yet are held in detention for months without access to legal representation or trial. According to Immigration and Customs Enforcement (“ICE”), at least 559 pregnant women, apprehended while crossing the US border, were detained in six facilities throughout the US since 2012. During this time, they did not receive appropriate prenatal care. Undocumented pregnant detainees have limited access to programming or activities appropriate for their conditions and they are subject to routine strip searches and are shackled during transport.

The worst part of their ordeal is that they do not have access to legal representation. Unless they can afford it, they are left alone without resources or legal venue to express their grief. They are treated like criminals but, unlike criminal defendants, are denied the most fundamental right under the Sixth Amendment: assistance of court appointed counsel.

Under the main provision of the Immigration and Naturalization Act (“INA”) § 292, an individual in an immigration proceeding has the privilege of being represented (at no expense to the Government) by such counsel, as he or she shall choose. Thus, pregnant detainees like Sugey may retain private attorneys only if they can afford to or may seek to retain pro bono legal services if they can find one. Why, you ask? Because the Sixth Amendment’s “assistance of counsel” applies only to criminal defendants and immigration removals are civil, not criminal in nature.

Most persons in removal proceedings appear pro se and the lack of counsel has a pronounced negative impact on case outcomes. Now imagine being pregnant and not speaking the language—what impact these difficulties might have on case outcomes? In appearing pro se, the pregnant detainees face overwhelming barriers in presenting their cases. They are unfamiliar with the laws and procedures and yet are expected to present their cases for relief while facing opposition from government lawyers who specialize in the particulars and intricacies of immigration laws and regulations. If they lose their case, some of them will be removed to a country where they, along with their newborn, may face persecution, torture or even death.

This system must change. More than 50 years ago, the US Supreme Court found in Gideon v. Wainwright an “obvious truth” that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” By doing so, the court recognized the need to provide assistance to those who could not obtain it themselves—a constitutional right to counsel for criminal defendants in order to help those most in need. This right is the backbone of the American judicial system. To that end, the promise of Gideon needs to be afforded to pregnant detainees as well because they are a group that is in need—the most vulnerable.

The Pregnant Immigrant Protection Act (“PIPA”) as a proposed amendment to INA § 292 will mandate legal representation for all pregnant detainees to protect against mistreatment and ensure that the government carries out its immigration mandate with regard to these women in a way that warrants a fair outcome. Legal counsel will give them an advocate to ensure access to health services such as adequate and constant onsite prenatal care and visits to specialty clinics for conditions such as diabetes, repeated pregnancy losses or preterm births. Furthermore, such legislation is essential to educate the detainees on the different types of relief available and to ensure more humane treatment.

Despite the government’s position that detaining these women will guarantee that they will appear in court and not leave town, they should still have access to an attorney to appear at those court appearances to make sure the process is fair. Even if they are found to be deportable, they at least would have had an attorney.

It is crucial to remember that the immigration detention system is a civil system and the pregnant women within this system are not awaiting criminal trials or threatening national security. Yet, they are treated worse than those in the criminal system. It is very hard to reconcile the idea of judicial fairness with treating pregnant women this way. The system guarantees legal representation for indigent murderers, rapists, terrorists, child abusers and serial killers yet, it turns its eyes away from defenseless pregnant women whose crimes are defined as “attempting to enter the US illegally.” The government is trying to deport them—which may be the proper solution—but to do so without giving them legal counsel is unconscionable and against American values. It is not a matter of stopping deportations. It is a matter of treating the women fairly and humanely.

How can we allow a terrorist and murderer like Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the September 11 attacks, to have court appointed counsel and not extend the same right to a pregnant woman who faces removal to a place where she and her baby may be killed? Where is the justice in that? Pregnant women in immigration detention do not have the right to counsel; that is wrong, and something must be done about it. Without PIPA ensuring legal representation, they will continue to be mistreated.

Makousse Ilboudo is a fourth-year evening division law student at St. John’s University School of Law. She is a senior staff member for the Journal for Civil Rights and Economic Development. Over the summer, Makousse was a Summer Associate with the corporate immigration firm, Fragomen, Del Rey, Bernsen & Loewy in New York City, and in the Fall, she returned there as a Law Clerk. She is a candidate for J.D. in 2016 and will sit for the February 2016 bar exam.

Suggested citation: Makousse Ilboudo, Hiding Behind the Veil of the “Civil System” to Perpetuate Inhumane Treatment Against Pregnant Women, JURIST – Student Commentary, Oct. 21, 2015, http://jurist.org/student/2015/10/Makousse-IIboudo-immigrant-rights.php.