Study, Forum Stress Plight of New York’s Unrepresented Immigrants

By Mark Hamblett

The majority of detained immigrants in New York who face removal from the United States lack legal representation, according to the preliminary findings of a study on the needs of the indigent in immigration courts.

The New York Immigrant Representation Study released Tuesday reports that 60 percent of detained immigrants in New York City do not have lawyers, that having counsel can make a world of difference in removal proceedings and that there is a serious shortage of competent counsel in the immigration field.

The study is the result of two years of combined work by the Katzmann Immigration Representation Study Group, led by Judge Robert A. Katzmann of the 2nd U.S. Circuit Court of Appeals, and the Vera Institute of Justice, a nonprofit policy and practice center that provides research, demonstration projects and technical assistance.

The results of the study formed the basis for the agenda Tuesday at a colloquium at Benjamin N. Cardozo School of Law that addressed the challenges of improving access to attorneys for immigrants facing removal and the quality of that representation.

Katzmann told the colloquium that the goal is to forge partnerships with city, state and federal agencies, nonprofit groups, bar associations, law schools, law firms and philanthropies to raise awareness and provide incentives and training.

Katzmann formed a study group of some 50 lawyers who meet periodically at the federal courthouse at 500 Pearl St. and work on increasing pro bono activities of law firms, improving mechanisms of legal service delivery and look at ways to root out inadequate counsel or those who prey on the poor.

On Tuesday, the judge outlined several steps that have been taken, including U.S. Attorney General Eric Holder’s announcement of the creation of the Legal Orientation Program in New York that enables attorneys at nonprofits to counsel immigrants and the commitment by Mayor Michael R. Bloomberg of $2 million from the city for the Immigration Fellows Program, where experienced members of the immigration bar mentor young attorneys.

The study group also has worked with other organizations on training sessions for deferred law firm associates, has prompted the creation of law school clinics, including one at Cardozo, and is working with the Vera Institute and the Governance Institute on a needs assessment funded by the Leon Levy Foundation.

Judge Katzmann said Tuesday that the study group is also launching a pilot project that will focus on asylum representation.

“We hope that, if successful, our model can be replicated in other parts of the country,” Katzmann said.

The preliminary findings of the immigrant representation study were derived from data from the Executive Office for Immigration Review and on immigration court proceedings from October 2005 through July 2010. The data was matched against a list from U.S. Immigration and Customs Enforcement (ICE) of people apprehended in New York from October 2005 through December 2010.

The study looked at representation at the immigration courts at 26 Federal Plaza and at Varick Street, as well as three removal program sites north of New York City. It also looked at immigrants apprehended in New York but transferred elsewhere.

The conclusion was that the two biggest factors in removal rates were whether someone had been held in a detention facility and whether they had counsel.

The study found that an immigrant who had a lawyer and had been released or never detained had a 74 percent success rate in removal proceedings. An immigrant who had been represented but detained had an 18 percent success rate.

Without counsel, an immigrant who had been released or never detained had a 13 percent success rate and those without counsel who are in detention get relief only 3 percent of the time.

The study also shows that the lack of representation is exacerbated because ICE transfers almost two-thirds of those detained in New York to detention centers in other states, usually in Texas, Louisiana and Pennsylvania, “where they face the greatest obstacles to obtaining counsel.”

The preliminary findings state that 92 percent of legal representation for immigrants in New York is by private attorneys, 7 percent by nonprofit groups, 1 percent by pro bono attorneys and less than 1 percent by law school clinics.

The findings also highlight a lack of competent counsel, an issue Katzmann said came to his attention during a wave of asylum appeals in the last decade. The 2nd Circuit has decided more than 14,000 immigration cases since 2006.

“One indicator of the extent of the problem is that there are currently 52 New York attorneys who have been either expelled or suspended by [the Executive Office for Immigration Review] from the practice of law before the immigration courts and the Board of Immigration Appeals,” the study states.

The report also takes note of the role immigration judges play in filling the gap. There are 29 judges serving at 26 Federal Plaza, three more at Varick Street and a total of six judges assigned to Batavia, Buffalo, the Downstate Correctional Facility in Fishkill and the Ulster Correctional Facility in Ulster.

“In all too many cases, the already overburdened immigration judge expends considerable effort doing what the lawyer is supposed to do, for example, developing the record where the lawyer simply lacks experience or, even in the case of experienced counsel, fails to submit documents corroborating a non-citizen’s account, fails to prepare a witness, or to rehabilitate a respondent after a problematic cross-examination,” the report states.

The colloquium was launched Tuesday by retired U.S. Supreme Court Justice John Paul Stevens, who spoke of the importance of pro bono work and urged the gathering to advocate for reform in Congress because “deportation is an absolutely required result in a whole host of cases.”

During a plenary panel that followed, Assistant Chief Immigration Judge Sarah Burr agreed that the shortage of lawyers for people in removal proceedings was lamentable and put a strain on the court.

Burr also said “unfortunately, there are a number of private practitioners who are, frankly, incompetent.”

It is “not uncommon,” she said, that immigration lawyers fail to articulate a theory of the case, fail to lay foundations for the introduction of evidence, and fail “to object to the most objectionable questions imaginable.”

“The bottom line is, it’s not enough to have a lawyer in the courtroom,” she said, and immigration judges in New York, some 14 or 15 of whom were in attendance, would be happy to help with training. She also urged more pro bono efforts, because the quality of the representation is good, but the lawyers often don’t come back.

The panel was moderated by Peter Markowitz, clinical associate professor of law at Cardozo, who said of the shortage of qualified lawyers for those facing removal “the scale of the crisis is staggering and the consequences are enormous.”

The panel included Juan Osuna, the acting director of EOIR; Janet Sabel, executive deputy attorney general for social justice; Fatima Shama, the city’s commissioner of immigrant affairs; Jonathan Mintz, the city’s commissioner of consumer affairs; Chung-Wha Hong, executive director of the New York Immigration Coalition; and Robert Juceam, of counsel at Fried, Frank, Shriver, Harris & Jacobson.

The discussion ranged from enforcement efforts to weed out bad lawyers or prosecute lawbreakers who prey on immigrants, training programs to increase competency, community advocacy and the need to dramatically expand the number of attorneys willing and able to represent immigrants in removal proceedings.

Juceam said there were 425,000 immigrants detained last year under administration policy, in distant locations with hardly any lawyers around, making it extremely difficult for a detainee to prepare a case.

“The crisis in representation in immigration is overwhelming,” he said.

Juceam said the Katzmann study group has commitments from four large firms that will work with Human Rights First to coordinate, supervise and mentor young lawyers on screened cases of asylum.

The panel was followed by a number of breakout sessions focusing on the results of the study, law firm initiatives, rooting out fraud, and constitutional issues arising in immigrant representation.

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