Protecting Rights of the Undocumented

While the U.S. has well-established legal protections for criminal defendants, the rights of undocumented immigrants are often murkier, an urgent problem in the Age of Trump, reports Dennis J Bernstein.

By Dennis J Bernstein

President Trump’s plans for tougher immigration enforcement is meeting opposition from California legislators who are considering ways to expand protections of the legal and human rights of thousands of undocumented people.

California Assemblyman Rob Bonta has urged the State Assembly’s Public Safety Committee to support AB3, a bill that would provide critical resources to criminal defense lawyers working with undocumented people in jeopardy. Bonta, himself a political refugee from the Philippines who came to this country as a child with his mother, calls for regional and statewide resource centers to provide immigration law training and legal advice for court-appointed criminal defense attorneys.

“We all know that sometimes worse than the criminal consequences for a defendant can be the immigration consequences,” Bonta said. “Families can literally be torn apart.”

I spoke with Assemblyman Bonta last week about his own family story as a political refugee from the Philippines and about the growing fears among many of his constituents in Oakland, California, who are undocumented or who have family and friends who are undocumented.

Dennis Bernstein: Before we get into the legislation, I want to talk to you a little bit about the atmospheric pressure, and what life has been like in this beginning age of Trump. He certainly has acted on some of his promises, his anti-immigrant promises, that have sent a lot of fear through these communities. You want to talk about that?

Rob Bonta: Absolutely. It’s a time like no other, Dennis. It’s a time where California’s values are under full-frontal, direct attack from the federal administration in Washington, D.C. And so, many things that we care deeply about and that we value and hold dear, including our immigrant community, are being threatened.

And I take the President at his word, for what he had said, and says he will do. We expect him to do the things that he says. And he has had very strong anti-immigrant rhetoric on the campaign trail and his actions have been very strongly anti-immigrant.

And immigrants are a critical part of who we are and who we’ve become as a state, in California. And so, many immigrants have come to California with a dream of improving their lives, and improving the circumstances for themselves and their families, and pursuing the California and the American dream.

And my mom is one of those people. She came here as an adult from the Philippines, as an immigrant. I was born in the Philippines and came here as a baby. And that story is told thousands and thousands of times over, as we have become [a] great state in the nation, the sixth largest economy in the world, the most diverse state in the nation.

And so, when we see these attacks, when we hear this rhetoric, when we hear and see the xenophobia, and intolerance and hate coming from Washington, D.C. – we haven’t asked for the fight, but the fight has come directly to us. Our values are under attack, and we must and we will stand up for, and defend, and protect our immigrants, with all of our power.

DB: Take us into the community a little bit. Talk about the kinds of things you’re hearing. Help us keep a human face on this. What has life been like? Are people hiding in their houses? Are they afraid to go to school? Give us a sense of what’s really… what this is looking like on the ground.

RM: Yeah, there’s… real lives are being negatively impacted in fundamental ways because of these attacks. And I think it started with words on the campaign trail which created worry, and concern, and anxiety, and anger. And it’s turned into action through executive orders and increased enforcement activities from ICE.

And so, we have parents who are dropping off their kids at school, and both parents and children are wondering if they’re going to see their family members again at the end of the day. We have victims of crime who are undocumented, who are so worried that they won’t report the crime.

And justice won’t be sought or served because of this fear that has been dropped over communities throughout the state of California, and the nation. Because of the actions of the federal government. We have folks who are afraid to go to work, or go to the places that have become routine places for social interaction and human connection.

So, the fear is everywhere, and it’s fundamental. And it’s folks waking up every day wondering if today is the day where and when they will be deported, or a loved one will be deported, and their family will be torn apart forever.

DB: And, we’ve heard about some fairly cruel tactics, where ICE agents, or related agents, are hanging out within a couple of blocks of schools or workplaces. I guess they can’t go within two blocks of the school but they’re grabbing the parents before or after they drop off the kids. This sounds rather terrifying.

RM: It is terrifying. And, again, as I indicated, a time like no other. And it’s not the state or the community, or the world that I, and hundreds of thousands of other Californians, want to live in. That’s why we’re fighting to change it.

But in some of the places that you would expect to be safe places, places of refuge, whether it be schools or churches or hospitals or courthouses, ICE is often not far away. And [ICE is] using those places as focal points for their enforcement, and their efforts to ensnare Californians, and tear families apart. And that’s wrong, and we need to change it.

DB: Well, let’s talk about some of the change that you want to bring, in terms of strengthening the ability for undocumented people to defend themselves, if they are confronted. [Undocumented immigrants] do have the right to a defense but there isn’t the personnel and there isn’t the training there, that can support this effort. So do you want to talk a little bit about what the rights are that every undocumented person has, and then some of the things you are suggesting in this new legislation, to be considered in the legislature here in California?

RM: Absolutely. Well, one of the ways we believe that we can provide additional support and resources to our California immigrant community is through legal resources. And we’ve acted on two separate tracks. One in the justice system, and another in the civil immigration proceedings process. And the bill I’m offering, AB 3, deals with the criminal justice system, in providing additional support and resources to our immigrants in that setting.

An immigrant in the criminal justice system has a right, under the constitution of the United States, to legal counsel, if they can’t afford it. And, in addition to having that counsel advise them on the potential criminal consequences of their case, and provide them a robust and zealous representation throughout their case, that attorney is required under the constitution, and specifically under the case of Padilla v. [Commonwealth of] Kentucky, and AB 1343, which codified in California v. Kentucky, they’re entitled to advice about the immigration consequences of their criminal disposition of their case, whether it be a plea or a conviction.

So, they are to be advised on whether, for example, a certain plea to a specific crime, or a conviction of a certain crime, would lead to immigration consequences, such as deportation. That’s required, right now, under the law. However, putting it into practice, and creating outstanding, uniform advice on that issue throughout the state, in every public defender’s office, requires resources and support.

I believe, and many of my colleagues believe, that we should be setting up our public defenders for success by providing them with the additional resources they need to provide that constitutionally required advice about immigration consequences. So, through AB 3, we’re setting up immigrant legal resource centers, which will be resourced throughout the state, where experts on immigration law, and all of its nuances and components, will be available to advise our public defenders on the immigration consequences for their specific cases.

Right now, our public defenders practice criminal law, and follow criminal procedures. So, they’re experts on criminal law and criminal procedures. Immigration law is a separate area of the law that is complicated and technical and nuanced, and not something that every public defender is fully trained on. So, we believe that, by providing these additional resources for our public defenders, it will help them provide the best defense and the best possible advice on immigration consequences to their immigrant clients.

DB: And, I guess it’s also a fact that there have been changes in the federal immigration law. […] Penalties have been increased … directives have been added, so there’s a lot of work here, in terms of that kind of defense that you’re talking about.

RB: Absolutely. This is a dynamic area of law that is often changing. And the need to be diligent in staying up-to-date with those updates and those changes, and making sure that they’re being applied to the cases of the clients that public defenders are working on.

DB: You said a little bit about this before but California is a very special case here when it comes to immigrants, and will be duly affected, in terms of what Trump is doing, in the most dramatic way. Correct?

RB: Oh, absolutely. We have the most immigrants of any state in the nation. As I indicated earlier, immigrants have been a critical part of building this state into the sixth largest economy in the world, and helping us succeed, and making us succeed. And the impact of these anti-immigrant, hate, and xenophobia, and intolerance fueled executive orders and actions by the federal government, and Mr. Trump himself, are absolutely offensive to who we are as a state, and have the potential for major damage to real people, and real Californians.

DB: And, I just want to come back to where we started. I believe you were the first Filipino-American to become a member of the California Assembly. You talked a little bit about [how] this is personal for you. Could you talk a little bit more about that role that you represent and what that means to you? I guess that’s a very special thing and you have a very special place in this.

RB: Well, thank you. I am the first Filipino-American state legislator in the history of California. I was born in the Philippines and came to California as a baby. My mom is an immigrant from the Philippines, who came here as an adult. And we left the Philippines as a family, my mother, father, my sister and I, in the wake of the declaration of martial law by Ferdinand Marcos. My mom was a political dissident and it wasn’t safe for us to stay there any longer.

So, we came to California to rebuild our lives, and that story is told thousands of times over, in this state. The story of a family, or a person or persons, who are fleeing a political environment where they’re not safe, and they need and deserve refuge. And California and the United States has given it to them.

Or someone who has sought better life circumstances, and has sought the Californian and the American dream, and has crossed borders to pursue that dream. And reached their full potential and created a better life for themselves and their children. That’s who we are. That is the dream that this state is based on.

And I’m not alone, as someone who’s an immigrant, or a child of immigrants, in this state legislature. There are others [of] my colleagues who are immigrants themselves, or the children of immigrants, and this is a deeply personal issue to us. It’s not conceptual, it’s not something that we’re trying to understand in concept, as a generic idea. It is real to us and to our lives and our families and to our communities that we care deeply about.

And this is not an issue that is important to only one community. It’s important to so many communities throughout this state, whether their heritage be Latino, or Asian-Pacific Islander, or African or what have you. The immigrant experience is an absolute critical part of who we are, as a state and as something that is built into our DNA.

And so, to have a president and a federal administration whose values are absolutely antithetical to those of California, the largest state in the nation, and the sixth largest economy in the world, and the strongest economic contributor to this nation, is tragic and it’s wrong.

DB: Is there a precedent… have other states passed this kind of legislation? Are they supporting creating structures to support this kind of defense of undocumented people? Is California going to be the model for other states?

RB: With this state-wide legislation coming from the biggest state in the nation, we believe that, as in so many others things, we will be a model for other states. And we will give truth to the statement, “As California goes, so goes the rest of the nation.”

This is not something that is totally unprecedented. In 2010, New York City became the first city in the nation to provide funding so that every one of its public defenders offices, in the city, was able to secure one or more immigration experts, to advise their colleagues about immigration consequences. And, in 2015, the New York State Office of Indigent Legal Services awarded a grant to counties across the state to accomplish the same thing and [to] insure, in this case, court appointed attorneys in criminal and family court have access to expert immigration advice.

So, this is an idea that is not totally new, but it has not been used widely. And, certainly, in today’s environment, this very dangerous environment, as created by the federal administration and Mr. Trump, this tool is needed more and more. And we’re seeking to move this forward and get it implemented in California as soon as possible. And we hope and believe that other states throughout the nation will follow.

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom. You can access the audio archives at www.flashpoints.net.