Additional time and resources will be needed to improve legal representation of the poor in immigration courts, participants in a discussion at last week’s annual meeting of the New York State Bar Association agreed.

“A startling number of detained and non-detained immigrants don’t have lawyers,” said Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit (See Profile), who has been spearheading an extended effort to alleviate what is regarded by many as a crisis.

Moreover, Judge Katzmann said that “detention policies and transfer policies have created significant obstacles” to adequate representation because Immigration and Customs Enforcement (ICE) has been sending almost two-thirds of New Yorkers facing deportation to far-away detention centers, most frequently in Louisiana, Texas and Pennsylvania.

Such issues were highlighted by a study published last month in the law review of the Benjamin N. Cardozo School of Law, which was distributed to attendees at the state bar’s Jan. 25 “presidential summit” on immigration.

According to the study on “Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings,” 60 percent of detained immigrants and 27 percent of non-detained immigrants in New York immigration courts do not have attorneys by the time their cases are completed.

Judge Katzmann told the conference that the two most important factors determining whether a person escapes deportation are whether they have counsel and whether they are free from detention.

Of those who were represented and released or never detained over several years in New York immigration courts, 74 percent have successful outcomes, the study found. That compared to 18 percent who are represented and detained, 13 percent who are unrepresented but released or never detained, and 3 percent who are unrepresented and detained.

Judge Kaztmann was joined at the state bar meeting by Daniel Olmos, senior counsel for the U.S. Justice Department’s Access to Justice Initiative, a broad effort to educate the public about the justice system.

Also participating were Juan Osuna, director of the Justice Department’s Executive Office for Immigration Review, which oversees the nation’s 59 immigration courts, 268 judges and the Board of Immigration Appeals; and Jo-Anne Wallace, president and CEO of the National Legal Aid and Defender Association.

Moderated by New York Times immigration reporter Julia Preston, the panel reflected on the obstacles to improving representation and the unprecedented level of detentions in the Obama administration. It also touched on the effect of Padilla V. Kentucky, 130 S. Ct. 1473 (2010), in which the U.S. Supreme Court held that criminal defense attorneys must tell non-citizen clients about the deportation risks inherent in a guilty plea.

In 2010, Judge Katzmann convened a study group on immigrant representation, launching a two-year inquiry into the nature and the scope of the problem. Preliminary findings were released last year at a Cardozo Law colloquium (NYLJ, May 4, 2011).

Even if immigrants manage to obtain counsel, they are not home free. Sarah Burr, assistant chief immigration judge for New York, told the gathering at Cardozo, “unfortunately, there are a number of private practitioners who are, frankly, incompetent.”

That sentiment was underlined in a survey of immigration judges contained in the law review study prepared by a steering committee chaired by Peter L. Markowitz, clinical associate professor at Cardozo Law.

The overall performance of immigration lawyers, the judges said in the anonymous survey, was “inadequate” 33 percent of the time and “grossly inadequate” in 14 percent of the cases.

Judge Katzmann explained in a phone interview what lies ahead following the report’s release.

“The second year of the study is an effort to use the data and develop an integrated plan that would facilitate representation in immigration cases—in other words, how do we pool the resources that are already being applied in a rational way? How do we work together to generate additional resources to satisfy the needs and how do we bring together existing service providers, non-profits, philanthropy, federal, local and state governments and law schools in an integrated effort?”

He added, “What you have now is you have work being done, but it’s being done pretty much individually rather than being done through comprehensive, coordinated efforts.”

Some coordinated efforts already are under way.

Last summer, hundreds of attorneys appeared at an event held at the New York City Bar on Aug. 17 and 18 and, promising to provide pro bono representation to immigrants in exchange, received free training from the federal government, the American Immigration Lawyers Association and the state bar, which has its own study group on immigrant representation.

But the Jan. 25 panel discussion at the state bar made it clear much remains to be done.

Citing the immigration judge’s survey, Judge Katzmann called poor representation “a severe problem that needs to be addressed.”

‘A Detention System’

Mr. Osuna described a system “where detention used to be rare” but is now overburdened by 300,000 cases and has “rapidly become a detention system” with only 11 percent of detainees having legal representation and many at the mercy of “fly-by-night lawyers.”

“Our judges have seen this representation problem for years, particularly in the detainee system,” Mr. Osuna said.

Ms. Wallace said that Padilla may have opened a “lever for change” in increasing the representation of the immigrant poor, much as the famous 1963 decision in Gideon v. Wainwright, 372 U.S. 335 (1963), had on the right to counsel for indigent defendants.

But Ms. Wallace cautioned that Padilla will add to the workload of lawyers and said that at this stage “training is an issue” as criminal lawyers need to get up to speed on the immigration consequences of guilty pleas and their obligations to their clients.

Mr. Olmos said the scale of the problem is enormous. He said “the situation in immigration cases is never going to be solved unless the federal government gets involved in a heavy way in paying for legal representation.”

Judge Katzmann was asked during the panel discussion what steps could be taken immediately to improve the situation.

“Administratively, I would like to see greater exercise in prosecutorial discretion as to review of existing cases that come before the Court of Appeals,” he said.

The Obama administration has been working on an experimental initiative to reduce staggering caseloads by using prosecutorial discretion to terminate low-priority deportation cases.

But Judge Katzmann said that the move to rely on prosecutorial discretion, outlined in a memorandum by ICE enforcement director John Morton, has yet to be fully embraced, he said.

“The circuit sees cases that, under that memorandum, would not be brought today,” he said. “When I ask the government why [and] would this case be brought under the Morton Memorandum, I get the answer that there is a task force” studying the issue, he said.

Judge Katzmann also emphasized that there clearly needed to be additional resources devoted to legal representation, that “more thought needs to be given to transfer policies” and that a real effort needs to be made to “integrate service providers.”

The judge said it is important to increase funding not just from government but also from private philanthropy to boost the number and quality of counsel while at the same time finding better ways to “root out inadequate counsel.”