NY Seeks First-In-The-Nation Right To Counsel In Deportations

By Marco Poggio | October 14, 2022, 8:20 PM EDT ·

The scene at 26 Federal Plaza in Manhattan, one of the busiest immigration courts in the country, is often chaotic: On a given day, hundreds of people crowd the hallways, waiting for their cases to be called. There are over 20 courtrooms, and a lack of proper translation services leaves people who don't speak English unable to understand what's being said there, and what the charges against them are.

Talia Peleg, the co-director of the immigrant rights clinic at City University of New York School of Law, is in that court regularly representing clients and called it "a total mess" that is difficult to navigate even with an attorney. But many of the people there don't have an attorney, she said.

"When the judge calls your name, there's a trained government lawyer across from you," Peleg said. "I've observed many, many hearings, where people are without counsel where I've been present in the courtroom. It's really devastating to watch."

Nearly one in every three noncitizens with pending immigration proceedings in New York lacks a lawyer. A proposed bill introduced in January would create a first-in-the-nation right to counsel for people facing deportation and improve the odds for thousands of them to obtain relief.

If passed into law, the Access to Representation Act would require the state to appoint an attorney for every person who has a case before an immigration judge or has a basis to appeal an old deportation order, as well as other immigrants meeting certain income requirements.

"It would guarantee that no one has to defend themselves against a trained government lawyer alone in order to protect themselves and their families from deportation," Nicole Catá, director of Immigrant Rights Policy at the New York Immigration Coalition, which has worked on the drafting of the bill, told Law360.

There are nearly 180,000 noncitizens in the state who have pending immigration proceedings. Over 52,000 of them are unrepresented, according to the Transactional Records Access Clearinghouse, a research institution based at Syracuse University.

The proposed legislation builds on existing programs that were pioneered in New York over the last decade. In 2013, the New York Immigrant Family Unity Project, an initiative run by the Vera Institute of Justice, began representing people in New York City facing deportation and who are detained. The program is covered through public funding.

In 2017, the program was extended to the rest of the state. Since then, it has been replicated in more than 50 other jurisdictions across 21 states. Most programs prioritize people in detention. In addition to New York, seven other states — New Jersey, Illinois, Colorado, Nevada, California, Oregon and Washington — have publicly funded statewide programs providing legal representation to people facing deportation.

States Investing Public Funding In Deportation Defense

Over 50 jurisdictions across 21 states fund programs that provide legal representation to people facing deportation. Eight states have statewide programs.

Source: Vera Institute of Justice

No jurisdiction has so far codified into law the actual right to an attorney in deportation proceedings, which unlike criminal cases, are civil in nature. That's where the bill proposed in New York would be groundbreaking.

"It would be the first in the nation that you have a system that when someone is facing deportation, they automatically get a lawyer," Assembly Member Catalina Cruz, a former unauthorized immigrant who introduced the bill in her chamber, told Law360.

Shayna Kessler, the state advocacy manager for Vera Institute of Justice's Advancing Universal Representation initiative, told Law360 that while the immigration system as a whole needs fixing, the bill would help alleviate some of its most harmful aspects.

"People are still forced to fend for themselves in immigration court if they're not able to afford to hire a lawyer," she said. "Hopefully, that's something that this bill will address and that won't be the case in the state of New York anymore."

An outcome analysis done by Vera Institute in 2017 showed the New York Immigrant Family Unity Project was successful: Access to lawyers has resulted in a 48% success rate for detained New Yorkers, compared to 4% before that program kicked off, an 11-fold increase. The findings are similar to those in an American Immigration Council study that looked at case outcome data collected by the U.S. Department of Justice's Executive Office for Immigration Review.

Last year, the state spent $20 million in immigration legal services, a figure Catá called "historic," but said is still not enough.

The Access to Representation Act would create funding streams for immigration legal services on an ongoing basis, something that has so far been missing in the state. Deportation proceedings take years to play out, and attorneys routinely face the prospect of not getting paid for their work. That uncertainty trickles down to their clients, many of whom have just arrived in the United States and face language barriers, Catá said.

The legislation would secure $55 million for legal services in its first year. Funding would increase each following year. A memo accompanying the bill says the program will cost $300 million a year once fully implemented, by year six.

Catá said the ramp-up period is necessary to field the program with enough immigration attorneys, supporting staff and social workers to take on pending cases.

"If the bill were to go into effect tomorrow at full implementation, there simply currently wouldn't be enough attorneys in the state of New York in order to provide everybody with representation in immigration court," she said. "We kind of built into the bill this mechanism by which the state would be able to build capacity."

Legal services providers and community-based organizations would play a key role in implementing the bill, including setting up a pipeline feeding attorneys into the program. That would involve working with law schools, Catá said.

The cost analysis for the bill takes into account the number of people who are scheduled to appear before an immigration judge and the number of attorneys needed to assist them. Implementing the program would also require securing office space.

"We really thought through all the potential implications," Catá said.

A coalition of immigrant rights advocates, which includes the New York Immigration Coalition, Vera Institute and other nonprofits, has been pushing for years for a right to counsel for people facing deportation. The Access to Representation Act was first proposed in 2020, but stalled. Its current version has 23 sponsors in the state Senate and 47 in the Assembly, all Democrats and mostly from New York City.

State Sen. Brad Hoylman, who introduced the bill in New York's Senate, said it is needed to address the high demand for immigration lawyers at a time when immigrants are crossing the U.S. border illegally in numbers not seen in decades. He also called it an "antidote" to the vitriol directed at immigrants by governors of southern states who have recently transported thousands of them to New York City and other cities in the Northeast to protest President Joe Biden's border policies.

"We're at a point in our state's and our nation's history where we have thousands of asylum-seekers coming to New York City and other parts of the country," he said. "I really can't think of anything more important that we should be focusing on in terms of expanding legal representation."

John Pollock, the coordinator of National Coalition for a Civil Right to Counsel, a nonprofit that advocates for the right to legal representation in civil cases, told Law360 that while other similar bills have failed to gain traction in the past, the one in New York has a higher chance to make it into the books, in part because the data on the success of the state's pilot programs is so compelling.

Immigration rights advocates and clinic attorneys said they are often stunned to see how many Americans don't know the implications of being a respondent in an immigration court. Despite facing civil proceedings, over 1.6 million immigrants are currently detained by U.S. Immigration and Customs Enforcement in jails and prisons where they are often prevented from communicating with attorneys or their family members.

Even when not detained, the stakes are high for people, many of whom are fleeing violence and extreme hardship in their home countries, and many others who have lived in the United States for years or decades and built families and lives.

"It feels sort of like an administrative setting, but really, decisions are being made about life and death: expulsion, ability to remain with one's family, potentially being sent somewhere where someone fears for their life," said Peleg, the co-director of CUNY law school's immigrant rights clinic.

Both the New York State Bar Association and the American Bar Association have called for the creation of a federally funded system of appointed counsel for indigent immigrants in immigration court proceedings, but the idea has not yet been implemented.

Immigration law is notoriously complex and subject to continuous changes by each administration. In navigating it, noncitizens encounter numerous obstacles in addition to language barriers. They face financial constraints, political fears and extremely long waiting lists.

"Some of them are literally children as young as three or four years old, and they're going through these proceedings without counsel," National Coalition for a Civil Right to Counsel's Pollock said. "When you look at all that, it just becomes almost impossible to believe that this system has been allowed to work like this."

He said there is a false public perception that people facing deportation have a right to an attorney.

"People would assume, of course, you get a lawyer for that," Pollock said. "Actually, no. You don't."

--Editing by Emily Kokoll and Lakshna Mehta. Graphics by Ben Jay.

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