Legal Empowerment during COVID-19: from JusticePower to #FreeThemAll

A representative of the Keep Brayann Free Coalition—an collective working to protect an immunocompromised man from detention—delivers a petition to an ICE facility in Tuscon, Arizona. EFE/María León

COVID-19 has caused extreme suffering and disruption around the world, with marginalized communities bearing a disproportionate burden of the pandemic. In the United States, thousands of immigrants and asylum seekers are locked in crowded detention centers unable to physically distance or follow sanitation guidelines. As of June 4th, there have been 1595 confirmed cases of COVID-19 among people who are in Immigration and Customs Enforcement (ICE) detention, and less than 10% of those detained have been tested. The first death of an ICE detainee from COVID-19 was recorded on May 6th.. Beyond detention, many immigrants are essential workers without sufficient health and labor protections and are being excluded from federal COVID-19 relief packages—conditions which place them and their families at serious risk. 

And yet in the midst of this devastating human rights challenge, grassroots organizations continue to innovate and meet the needs of immigrant communities. Essential to this work is legal empowerment, a rights-based methodology that centers people in their own fight for justice and creates opportunities for people to know, use, and shape the laws that impact their lives. 

 It’s time for the broader legal community to learn from those working on the frontlines and create space for directly impacted people to lead. 

Recently the Bernstein Institute for Human Rights and the Global Justice Clinic at NYU School of Law launched JusticePower, a collaborative project that highlights legal empowerment strategies that immigrant rights organizations use to advance justice and build power. Since COVID-19, we’ve seen how these strategies stay steady amidst rising uncertainty and strife—from community-driven campaigns to #FreeThemAll, pro se (self-representation) tools and resources for the thousands of immigrants who navigate the system without a lawyer, to using technology to build flexible legal clinics and trainings to meet people where they are. It’s time for the broader legal community to learn from those working on the frontlines and create space for directly impacted people to lead. 

We Need to #FreeThemAll 

A coalition of organizations that work on criminal justice reform and immigrants’ rights have used the hashtag #FreeThemAll to demand the release of incarcerated people living in inhumane conditions in American detention centers. JusticePower organizations like New Sanctuary Coalition, Grassroots Leadership, Innovation Law Lab and Organized Communities Against Deportation (OCAD) are leading the charge to release people from the deadly conditions of immigration detention through community-driven campaigns. 

Immigrants and their communities have been decrying the use of detention as a way to deter migration for years, but the heightened stakes of the pandemic provide advocates with a new touch point in the collective social conscience. With increased media and policy attention on COVID-19, activists are using this platform to highlight the daily injustices that immigrants have faced for years—overcrowded facilities and poor access to health care—as grounds for release of all from detention. #FreeThemAll is a community-driven campaign that relies first on the moral premise that all immigrant detention is unjust—a preposition backed up by human rights law during the current crisis. Grassroots Leadership is using the pandemic to amplify its call for the release of those in detention at the T. Don Hutto detention center in Taylor, Texas—part of a longstanding campaign to permanently close the Hutto detention center. 

OCAD assisted one of its members, Francisco Silva to obtain his release from ICE detention due to the pandemic, and continues to call for the prosecutor to administratively close Francisco’s case. Innovation Law Lab organized with communities in El Paso to demand the release of detainees at the El Paso Service Processing Center after people started testing positive for COVID-19 on April 16th. These efforts by communities and organizations have led to the release of some immigrants already. But because of the pandemic, it is increasingly urgent to #FreeThemAll.  

Tech Innovation to Bridge Physical Distance

New Sanctuary Coalition (NSC) runs a weekly pro se legal clinic that supports immigrants as they fight for the right to stay in the United States. NSC refers to those seeking immigration services as “Friends,” not “clients.” The clinic brings hundreds of these Friends and volunteers together to discuss cases and share resources and materials. However, with physical distancing, in-person clinic nights are currently impossible. Realizing that their Friends still needed support, NSC moved all of their pro se legal support to remote operations. NSC also quickly transitioned their weekly in-person Community Meetings to an online space to ensure that Friends still had ways to connect with each other and build Friend-to-Friend solidarity. Using technology as a way to bridge distance, NSC continues to provide Friends with the tools necessary to fight for their right to remain. 

Before COVID-19, Organized Communities Against Deportation (OCAD) was running bi-monthly in-person Asambleas. Asambleas provide a space for those affected by deportation to discuss the injustices present in the immigration and criminal justice system and organize for change. Because the need for this work has not changed, OCAD shifted the Asambleas to a digital platform. This transition comes with a learning curve, but community engagement remains OCAD’s number one priority throughout this time.

Supporting Immigrants to Fight their Cases Pro Se 

Of all immigrants facing removal proceedings, 63% are pro se; this statistic rises to 86% for detained immigrants. The reality in America is that most immigrants fight for their rights without access to legal counsel or support. What’s needed are resources and opportunities that help immigrants and their families to navigate the system and fight for their right to remain.  

The reality in America is that most immigrants fight for their rights without access to legal counsel or support.

An example of this are legal toolkits developed by Innovation Law Lab, in partnership with the Southern Poverty Law Center (SPLC) and Freedom for Immigrants. These toolkits explain how to prepare pro se humanitarian parole requests in response to the COVID-19 outbreak and are for immigrants in detention as well as their friends and families on the outside. The toolkits describe in layman’s terms the arguments central to a parole request and offer examples of forms and letters that could be included in a pro se application. Materials like this bring the law closer to people and enable them to better know and use the law to protect their own rights and live with dignity. 

Designing community-centered justice programs and resources that are accessible and legally sound is no easy task; JusticePower organizations should be commended for their resilience and innovation. The regulation of legal practice, specifically rules about the unauthorized practice of law (UPL), make this type of work especially challenging. Existing rules make it difficult for even friends and family to guide someone they love with their experiences navigating a similar case or issue. A comprehensive evaluation of pilot programs in New York demonstrated positive legal and real life outcomes for pro se litigants when they had assistance from non-lawyer court navigators. The legal community should pursue this evidence further; in immigration court and all the other courts with pro se litigation. It is time to reform UPL rules and identify ways for lawyers to be better allies to directly impacted communities and their justice work. 

Community led advocacy remains as resilient as the communities themselves.  The legal community must reimagine its role and open up space for grassroots justice efforts. The fight to save lives during COVID-19 and beyond requires nothing less.