NY City Bar report: 39% of New York immigration detainees may have meritorious claims

The Justice Department is urging Congress to provide funds to support pro bono legal representation of persons facing deportation. Its Immigration Judges are overwhelmed by the burden of trying to provide a semblance of justice to pro se deportees.

But as the New Jersey Law Journal editorial board recently urged, a federally-funded "corps of competent lawyers" is needed to address the crisis of insufficient and incompetent representation. That requires Congress to amend federal law which bars such aid.

The aid measure is a $2,000,000 additional appropriation for the Executive Office of Immigration Review's "Legal Orientation" program which provides support (but not funds for direct representation) to pro bono representation of aliens in removal proceedings. The measure is contained in an amendment by Senator Charles Schumer to H.R. 2847, the appropriation bill for the federal departments of Justice and Commerce.

As the New York Times reports lack of representation, and overwhelmed judges are a big part of the picture.

Prof. Peter L. Markowitz of Cardozo Law School recently observed in his study BARRIERS TO REPRESENTATION FOR DETAINED IMMIGRANTS FACING DEPORTATION: VARICK STREET DETENTION FACILITY, A CASE STUDY, 78 Fordham Law Review 541 (2009):

One cannot exaggerate how overburdened and under-resourced the immigration courts are and how pro se cases tap those scarce resources disproportionately. In fiscal year 2008, the nation’s 214 immigration judges handled on average over 1500 cases apiece. To assist them with this enormous docket, immigration judges shared, on average, one law clerk for every six judges. This flood makes a mockery of federal regulations - 8 C.F.R. § 1240.11(a)(2) (2009) - which provides “The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter . . . .”).

The volunteer lawyers and law students of the City Bar's NYC Know Your Rights Project (a collaboration of the City Bar Justice Center, The Legal Aid Society and the American Immigration Lawyers Association, NYC Chapter) have issued a report which prompted the Times account. The executive summary follows:

The purpose of the collaboration is to increase access to legal advice and information for the detainees held at the Varick Facility by recruiting, training, and mentoring private law firm volunteers to staff a regularweekly clinic at the Immigration and Customs Enforcement detention facility in Lower Manhattan. The report is based on data on 158 detainees counseled at Varick by pro bono volunteers between December 11, 2008 through July 9, 2009.

We found 39.2% of the detainees had possible meritorious claims for relief from removal. The most common forms of relief were cancellation of removal; asylum; withholding of removal, and/or relief under the Convention Against Torture; nonimmigrant visas including U and S visas; 212(c) relief; and adjustment of status under 245(i) of the Immigration and Nationality Act.

In addition we found 10% of detainees we interviewed had been granted bond, but the amount was set so high that they could not raise the funds and thus remained housed in the facility. We also experienced detainees we met with being shipped to other parts of the country where access to counsel is even less likely than in the New York metropolitan area, sometimes

before the volunteer could finish researching the case. This report recommends that there be government-funded appointed counsel for all detained immigrants who cannot afford private counsel. Despite our best efforts and the diligence of our volunteers, we were only able to help 10 detainees a week at the NYC Know Your Rights Clinic.

Image: The New York Times - Varick Street detention center