This article is excerpted from a lecture given at the Federal Bar Council’s presentation of its Learned Hand Medal to Second Circuit Judge Robert A. Katzmann. For the complete lecture, click here.
This evening I speak to you about what we, together, bench and bar, can do to help meet an urgent, pressing need—the need for adequate representation for a vulnerable population of human beings—immigrants. Immigrants often come to this country in fear, fleeing from persecution, escaping from poverty, not knowing the language, not knowing to whom to turn for competent legal advice, all the while working to make a better life. In all too many cases, the dearth of adequate counsel all but dooms the immigrant’s chances to realize the American dream. And, what would the American dream have been, what would the United States be, without the dreams, the sweat, the reality, the culture, food, music, the dynamism of millions of immigrants who have enriched and do enrich this nation?
The plight of immigrants is not a new judicial concern. Consider these words of frustration of a long-serving judge of the last century, anguished about what he viewed as the harsh system of immigration adjudication: “I feel very earnestly about his case because the result seems to me cruel and inhuman. I must say I am shocked and disgusted down to my boots.” In another matter, the judge lamented to his panel colleagues about “a particularly mean and heartless case.” “These aliens are to be sent back to Greece because of a lot of damned red tape… Doesn’t it make you both ashamed?” And, in another, the judge wrote: “I am a little sensitive in these Chinese cases: the jury goes into the box committed against them and the lawyers take their money and ‘submit on our briefs.’” And, distressed about deportation of those who had been in this country since early childhood, he would exclaim: “It is a cruel law to exile a person who has been here since infancy.”
In each of these cases and others, the judge was none other than Learned Hand. Hand’s biographer, Gerald Gunther, writes that his subject felt helpless, bound as he was to follow laws he deemed imprudent and a bureaucracy he deemed insensitive. Going beyond his opinions to express his concerns about the law, Hand, Gunther reports, “engaged in lengthy, eloquent correspondence with the commissioner of immigration and with members of Congress who he pressed for legislation to ameliorate these injustices, and indeed drafted language toward these ends.”
The caseload volume in Hand’s time paled in comparison to the large docket of the present day. But, until recently, immigration cases were a very small part of the work of the Second Circuit. In 1999, when I started as a Court of Appeals judge, the immigration docket was a minuscule percentage of our workload. But within a few years, the immigration docket of the Second Circuit approached 40 percent of the caseload—and, as a result, our court developed procedures to manage such cases, devised largely by Jon Newman under the chief judgeship of John Walker, a system that continues today under the chief judgeship of Dennis Jacobs. Since 2006, the Second Circuit has adjudicated more than 16,000 immigration cases. In all too many cases, I could not but notice a substantial impediment to the fair and effective administration of justice: the too-often deficient counsel of represented noncitizens. In all too many cases, I had the sense that if only the immigrant had competent counsel at the very outset of immigration proceedings where the record is made with lasting effect —long before the case reached the Court of Appeals where review is limited—the outcome might have been different, the noncitizen might have prevailed. But, until data were collected—more on that later—I only had my own observations to go on.
Wanting to do something, I took the opportunity of the Marden Lecture of the New York City Bar in 2007, to challenge the New York legal establishment and others interacting with that establishment —law firms, bar associations, nonprofits, corporate counsel, foundations, law schools, state and local government, the media, the immigration bar, senior lawyers and retirees, providers of continuing education and training, and think tanks—to step up activity to help address the large, and largely unmet, need in noncitizen communities. Justice, I said, should not depend upon the income of immigrants.
I did not know what the reaction would be, but the response was, and has been, very gratifying. With the guidance of several outstanding lawyers, beginning with Peter Eikenberry and Robert Juceam, I started a working group in 2008, the Study Group on Immigrant Representation, consisting of some 50 lawyers and Judge Denny Chin. For me, it has been deeply inspiring to work with such dedicated attorneys, whose only motive is to assist those in need.
Study Group activities have concentrated on three areas: (1) increasing pro bono activity of firms; (2) improving mechanisms of legal service delivery; and (3) extirpating inadequate counsel and improving the quality of representation available to noncitizens.
Our method is to bring together key participants from the private bar, bar associations, non-profits, legal service providers, immigrant organizations, government, philanthropies, and law schools as part of a collaborative effort to promote the fair and effective administration of justice. This interdisciplinary initiative has been productive as it has been galvanizing.
Over the past four years, Study Group activities have included these 10 initiatives:
(1) We have undertaken two major conferences, one at Fordham Law School and Cardozo Law School, the latter with retired Supreme Court Justice John Paul Stevens participating, out of which we have produced a series of studies and reports published in the Fordham and Cardozo law reviews, with coverage in the The New York Times, the New York Law Journal, and El Diario;
(2) In 2010, the Study Group launched an assessment of the representational needs of indigent noncitizens facing removal in the New York Immigrant Representation Survey (NYIRS);
(3) We met with Attorney General Holder, Senator Schumer and others, after which, in 2010 the attorney general announced the creation of a Legal Orientation Program in New York, enabling non-profit providers to counsel immigrants;
(4) We devised a pilot project to stimulate increased law firm pro bono activity;
(5) We have advanced the creation of an Immigrant Representation Fellows program, an immigrant representation corps, consisting of young lawyers and senior lawyers, who would serve for one or two years, mentored by experienced immigration lawyers. I am very hopeful that this fellowship program, will soon become a reality;
(6) We have joined with bar organizations to recruit, successfully, more pro bono lawyers;
(7) We have developed, in collaboration with other organizations, training sessions for
deferred law firm associates so that they could devote their deferral years to immigrant representation. This way, new lawyers enter law firm practice with a knowledge of immigration law, and, hopefully, a commitment to pro bono work;
(8) We have spurred the creation of law school clinics—the prime exemplar being the Kathryn O. Greenberg Immigation Justice Clinic at Cardozo.
(9) Study Group members have worked with state, local and federal governments to explore ways that consumer law could be used to root out fraudulent legal service providers;
(10) Responding to federal initiatives to combat immigration fraud, the Study Group, in concert with the American Immigration Lawyers Association and other organizations, in 2011 sponsored two days of intensive training in immigration law for non-immigration lawyers.
A lot more could be said about each of these initiatives. With your indulgence, I’d like to say more about two of them.
Senator Daniel Patrick Moynihan often said that, you’re entitled to your own opinion, but not to your own facts. I couldn’t agree more. Thus, I thought it important that the Study Group move from anecdote to comprehensive data, so that the problem could be better defined and addressed. The immigrant representation study, published in December 2011 in the Cardozo Law Review, provides, for the first time ever, comprehensive data about the scope of the immigrant representation challenge in New York (part one, year one) and is working to provide a plan for addressing it (part two, year two). A few findings powerfully show the depth of the problem:
1. A striking percentage of detained and nondetained immigrants appearing before the New York Immigration Courts do not have representation.
In New York City:
• Sixty percent of detained immigrants do not have counsel by the time their cases are completed.
• Twenty-seven percent of nondetained immigrants do not have counsel by the time their cases are completed.
2. The study found that the Department of Homeland Security’s detention and transfer policies create significant obstacles for immigrants facing removal to obtain counsel.
• Until recently, Immigration and Customs Enforcement (ICE) transferred almost two-thirds (64 percent) of those detained in New York to far-off detention centers (most frequently to Louisiana, Pennsylvania, and Texas) where they face the greatest obstacles to obtaining counsel.
• Individuals who are transferred elsewhere and who remain detained outside of New York are unrepresented 79 percent of the time.
3. The two most important variables affecting the ability to secure a successful outcome in a case (defined as relief or termination) are having representation and being free from detention.
The absence of either factor in a case—being detained but represented or being unrepresented but not detained—drops the success rate dramatically. When neither factor is present the rate of successful outcomes drops even more substantially.
• Represented and released or never detained: 74 percent have successful outcomes.
• Unrepresented but released or never detained: 13 percenthave successful outcomes.
• Represented but detained: 18 percent have successful outcomes.
• Unrepresented and detained: 3 percent have successful outcomes.
I think we can all agree that having a lawyer, preferably a good one, makes a substantial difference.
4. Grave problems persist in regard to deficient performance by lawyers providing removal-defense services.
New York immigration judges rated nearly half of all legal representatives as less than adequate in terms of overall performance.
5. According to the providers surveyed, detained cases are least served by existing removal-defense providers.
6. The two greatest impediments to increasing the capacity of existing providers are a lack of funding and a lack of resources to build a qualified core of experienced removal-defense providers.
These dramatic findings give us a sense of the immensity of the task before us.
A Creative Pilot Project
I am deeply grateful to the Federal Bar Council for its support for the work of the Study Group. Its Public Service Committee with the support of the Study Group, undertook a series of highly successful training sessions in immigration law, showing to any doubters that immigration law can be learned just like any other area of law. Indicative also of the contribution is a creative pilot project to increase the pool of pro bono lawyers in asylum cases. A grant from the Leon Levy Foundation provides funding for a non-profit, Human Rights First (Lori Adams and Gina DelChiaro), to use its expertise to work with pro bono lawyers from firms on immigration cases. The hope, through this two-year fellowship program, is to challenge the private bar to take on more pro bono asylum cases and increase firms’ ability to do so. In this pilot effort, the Public Service Committee has secured the commitment of Cleary Gottlieb, Sullivan & Cromwell, Fried Frank, Morrison & Foerster, and Wilmer, Hale to assist with the screening of potential asylum clients at the N.Y. Immigration Court, and to have those law firms take asylum cases pro bono. This pilot project could serve as a model for an expanded program.
You might be wondering what can you do? I encourage and welcome the involvement of all of you here: firm leaders who set the tone, partners who serve as mentors for young lawyers, senior lawyers and associates alike. Any lawyer who has successfully represented a noncitizen can tell you of the deep satisfaction of helping a person in need, of helping to keep a family intact, of frankly becoming a hero to that immigrant and immigrant family, with the not insubstantial additional benefit to the attorney and firm of honing legal skills through that representation.
Such honing of skills can enhance lawyering in other areas of practice. If you are not already, please become involved. You can find out more about our activities by googling Study Group on Immigrant Representation, by downloading our Fordham and Cardozo symposia and reports, by contacting the Study Group at firstname.lastname@example.org, or the FBC’s Public Service Committee, or other organizations noted in our materials, all doing great work.
If you’re not convinced by my words, tonight, just talk to these lawyers: Jennifer Kroman, Carmine Boccuzzi, Alex Bean, Alida Lasker, Ayana Free, Cathleen Gordley and Andrew Ungberg of Cleary Gottlieb; or Conray Tseng or Natalie Blazer of Weil Gotschal; or Anne-Laure Allehaut, Kelly Russotti, Laurent Weisel and Nizan Geslevich of Skadden; or Barbara Camacho, a Fragomen fellow at the City Bar; or Jorge Castillo, Jennifer Colyer, Maribel Hernandez-Rivera, Peter Cobb, Robert Juceam, and Jonathan Forman of Fried Frank; or Jeannie Chung of Simpson Thacher; or Melanie Baptiste of Paul, Weiss; or Morgan Clark, Kristin McNamara Pauley, Nicole Naples, Mei Lin Kwan-Gett of Willkie Farr; Aileen McGill and Stephanie Teplin of Patterson Belknap; or Noah Gitterman of Proskauer. With deep respect, I follow the contributions of the many pro bono lawyers and firms assisting immigrants.
We are all shaped by our personal histories. As I reflect on my subject tonight, immigrant representation, my own family’s past no doubt plays a part. My father is a refugee from Nazi persecution, my mother the child of Russian immigrants. I can still hear the accents and voices of my own relatives, who escaped persecution, who wanted to become part of this great country, and who, through their toil and belief in the American dream, made this great nation even greater. When we work to secure adequate representation for immigrants, not only are we faithful to our own professional responsibilities, not only do we further the fair and effective administration of justice, but we also honor the this nation’s immigrant experience.