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N.Y. Plan Would Provide Counsel to Immigrants Facing Removal
New York Law Journal
A task force assembled to meet the needs of poor immigrants facing deportation last week introduced a model program for providing counsel to immigrants in removal proceedings.
The group and its report, "Accessing Justice II," are the latest step in a five-year effort launched by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit, who began in 2007 to rally the legal community to study the problems of immigrants in removal proceedings and advocate a legal services support network at a time when record numbers of immigrants are subject to deportation.
"Basically, this is a blueprint for deeper discussion about how to secure access to the justice system with counsel," Katzmann said last week. "Bit by bit, we are trying to make a dent in a huge problem."
The report proposes a "New York Deportation Defense Project," which the authors hope will be a model for the nation.
The deportation project focuses first on detained immigrants, "the most underserved population with the greatest obstacles to representation and to a fair process."
A report released by the group in 2011, "Accessing Justice I," outlined the dire need for quality legal representation by immigrants who face removal and the splintering of their families but who have little knowledge of how the U.S. immigration system works.
That document detailed a radical disparity in outcomes in immigration courts for those who have lawyers and those who do not.
In New York, the first report stated, 60 percent of detained immigrants, and 27 percent of non-detained immigrants, did not have counsel. Seventy-four percent of non-detained immigrants with counsel were able to defeat deportation, but those without counsel had a mere 13 percent chance of remaining here.
For detained immigrants, the report said, those with counsel have an 18 percent chance of remaining but those without a lawyer have only a 3 percent chance of fending off removal.
The first report also highlighted the poor quality of some lawyers who represent immigrants, either through incompetence or lack of ethics.
The task force project was embarked on by law firms, nonprofits, immigration groups, bar associations, law schools and representatives from local, state and federal governments.
Peter Markowitz, a clinical associate professor at the Benjamin N. Cardozo School of Law and co-chair of the task force, said last week that, because of the efforts of Katzmann, the issuing of reports and "very good advocacy by institutional providers and heightened awareness of the immigration problem writ large, there is momentum and the time is ripe for some really bold steps forward."
The latest report depicts the scale of the problem in noting that the Department of Homeland Security (DHS) deported 392,000 foreign nationals from the United States in 2011, an 85 percent increase since 2005.
Over the past five years, the report states, more than 15,000 immigrants in New York faced the prospect of deportation without a lawyer.
The aim of the Deportation Defense Project is universal representation with screening only for income eligibility -- a quick examination of which would immediately trigger representation and increase, significantly, the chances the detainee will be released.
The project would operate through "a small group of institutional immigration legal services providers (SPOs) who are in a position to handle the full range of removal cases" and can capture efficiencies of scale.
The providers would conduct intake screenings and could be assigned a day of the week to interview and represent all eligible individuals at a particular master calendar in immigration court.
Savings and efficiencies would also be realized by contracting with a few providers capable of delivering a high volume of services and ensuring efficient attorney-client communications, timely access to critical documents and coordination of court calendars, through regular communication with Homeland Security, the Justice Department's Executive Office for Immigration Review and other institutions.
Efficiencies of scale are critical, the report states, because "the time and effort required to represent an immigrant in detention can be daunting for an attorney trying to navigate logistical obstacles alone."
The report details the difficulties faced by attorneys attempting to meet with their detained clients. Attorneys often travel a long way only to wait a full day for a short meeting or are obstructed from meeting their clients altogether.
Obstacles to obtaining documents and interpreters as well as other problems "combine to undermine the good-faith efforts of even the most committed volunteer lawyers who have many competing pressures from their full-time jobs."
The project also would provide basic legal support services such as access to experts, translators, social workers, mental health professionals and investigators.
The tough part is the money, which the project's authors estimate would require about $6 million annually to provide service to some 1,800 clients per year.
The money would come through "a reliable public funding stream," the report says, noting there are precedents for this, including New York City Council funding for nonprofits serving immigrants and the 2011 funding by New York state to hire 10 new immigration attorneys -- one each at New York City criminal defender borough offices, to ensure defendants know the immigration consequences of a guilty plea.
But the task force also has emphasized a role to be played by private foundations and grants.
Markowitz said the "philanthropic sector could play a critical role in launching the initiative," and establishing the groundwork in which government funding for indigent immigrants would become steady.
"A little by the way of analogy is the way the city has moved into funding institutional defenders in the family court context," he said. "When New Yorkers show up in Family Court, there are now institutional defenders and we are looking for the same kind of movement in the deportation realm."
The effort would be overseen and managed by a coordinating organization that would serve as the primary grantee and fiscal agent, determining reimbursement rates, selecting providers, negotiating and awarding subcontracts and coordinating training.
"This proposal recognizes that justice is strained when thousands of New Yorkers each year face banishment from their homes and families and must navigate, without counsel, a legal system our courts describe as 'labyrinthine,'" the report states. "By implementing the Project … we can protect New York families, lessen dependence on government safety net programs, ensure a measure of justice for New York residents, and become a model for other cities and states that value their immigrant communities."
Katzmann emphasized last week the important role that pro bono lawyers have played in helping immigrants facing deportation, but said they only meet a fraction of the demand.
"The needs are so vast that pro bono lawyers can't do it alone," he said.
The report also stresses the potential leadership role for New York and takes a shot at other states where the emphasis has been more on cracking down on immigrants, rather than giving them a fair shot in immigration courts.
"While a number of states have entered the immigration arena in ways generally hostile to immigrants, a more enlightened New York City and New York State could be among the first to use state and local power to preserve the rights of immigrants, to keep immigrant families intact, and to retain the vibrant immigrant character of its diverse communities," the report says.