It is only though honoring our enduring traditions that we can successfully meet the emerging challenges of law in the 21st century. These traditions begin with the fundamental principles of the rule of law and access to justice that are woven into our Constitution. It will be our challenge to apply these principles to an evolving United States.
Perhaps the most striking feature of our country is the ever increasing percentage of our population with roots in other countries. Nearly all of us, of course, can trace our own roots back to other countries, and this nation’s strongest national resource is the influx of talented and motivated people.
Our treatment of immigrants has been front page news for years, and how to address the large undocumented population has been a particular flashpoint. But beyond the basic policy decisions that have to be made is the fundamental issue of how we treat individuals who are caught up in our immigration detention system or who must use our courts. In both areas, there are injustices that lawyers should not countenance.
Immigrants in detention have no right to counsel, as the detention system is deemed “civil” rather than “criminal.” However, anyone deprived of liberty for extended periods, experiencing sometimes shocking treatment, as often happens to immigrant detainees, should have the right to counsel, with counsel being appointed if a defendant cannot afford to pay, just as in criminal matters.
Our City Bar Justice Center recently issued a report, based on clinics for immigrants at the Varick Street detention facility, which showed that nearly 40 percent of detainees interviewed had possible meritorious claims. Yet, without a lawyer to help them navigate our complex immigration laws and procedures, they would remain detained and risk deportation.
Many of those detained risk deportation because they committed one of an expansive list of offenses that would subject them to deportation under federal law. Thus, an immigrant who may have committed a relatively minor offense as a teenager and then gone on to turn her life around and raise a family here could be picked up, detained and deported without redress, leaving behind her family and having to face life in a country she may know little or nothing about.
Particularly unfortunate is when a defendant takes a plea without being advised that pleading to that offense could result in deportation.
For years the City Bar has urged the courts to make sure defendants are advised of this possibility, and we have been training criminal lawyers on the importance of so advising their clients. The U.S. Supreme Court has now found, in Padilla v. Kentucky, the failure to advise a client of deportation consequences to be grounds for an ineffective assistance of counsel appeal.
Finally, in order to have true access to the courts, immigrants must understand what is being said there. We have worked for several years with the Office of Court Administration to bolster the courts’ ability to provide interpreters to non-English-speaking litigants.
While much progress has been made, our institutions must do more to fulfill the promise of meaningful access to justice for all on our shores, and we must all do our part to achieve it.
Patricia M. Hynes is senior counsel in the New York office of Allen & Overy.