Fordham Law Review: Overcoming Barriers to Immigrant Representation

America is torn between the Statue of Liberty - the icon of welcoming the immigrant - and the immigration raid, between "give me your tired and your poor" and the demand that "illegal immigrants" be barred from federally assisted health care.

A dramatic legal expression of the contradiction is the statute which recognizes a right to counsel for those facing deportation but requires that it be "at no expense to the Government". 8 U.S.C. 1362

R.P.C. 6.1 says that "every lawyer has a professional responsibility to render public interest legal service." The current issue of the Fordham Law Review explores, in the words of 2d Circuit Judge Robert A. Katzmann, "deepening the profession's commitment to the immigrant poor".

FORDHAM LAW REVIEW

Vol. 78 November 2009 No. 2 LECTURE THE ROBERT L. LEVINE DISTINGUISHED LECTURE OVERCOMING BARRIERS TO IMMIGRANT REPRESENTATION: EXPLORING SOLUTIONS DEEPENING THE LEGAL PROFESSION’S PRO BONO COMMITMENT TO THE IMMIGRANT POOR Hon. Robert A. Katzmann REPORT OF SUBCOMMITTEE 1: INCREASING PRO BONO ACTIVITY THE REPRESENTATIONAL AND COUNSELING NEEDS OF THE IMMIGRANT POOR Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam & Lewis J. Liman REPORTS OF SUBCOMMITTEE 2: ENHANCING MECHANISMS FOR SERVICE DELIVERY INTRODUCTION Claudia Slovinsky THE IMMIGRATION REPRESENTATION PROJECT: MEETING THE CRITICAL NEEDS OF LOW-WAGE AND INDIGENT NEW YORKERS FACING REMOVAL Jojo Annobil BARRIERS TO REPRESENTATION FOR DETAINED IMMIGRANTS FACING DEPORTATION: VARICK STREET DETENTION FACILITY, A CASE STUDY Peter L. Markowitz REPORT OF SUBCOMMITTEE 3: ADDRESSING INADEQUATE REPRESENTATION

The crisis of unrepresented persons in removal proceedings

Cyrus Mehta, immigration attorney and Adjunct Professor at Brooklyn Law School, has summarized effectively HERE the crisis of representation of those in removal proceedings: a diffuse labyrinth that some 400,000 detainees will enter this year, some for long stays. It is a second, parallel prison system administered by the Department of Homeland Security.

The largest government agency, DHS bears a name with a Prussian ring. It is a bureaucratic monument to America's stunned, unifying, sometimes excessive, reactions to bolts from the blue, the brutal surprise attacks of September 11, 2001.

Of the 300,000 who now face deportation every year only 40% are represented by counsel. Of those detained only 10% are represented Mehta cites the powerful observation of Federal Appeals Judge Robert Katzmann in Aris v Mukasey, 517 F.3d 595 (2d Cir. 2008):

The importance of quality representation is especially acute to immigrants, a vulnerable population who come to this country searching for a better life, and who often arrive unfamiliar with our language and culture, in economic deprivation and in fear. In immigration matters, so much is at stake – the right to remain in this country, to reunite a family, or to work.

Katzmann, himself inspired by the experience of his grandparentst who fled the Nazis, addressed the City Bar, calling for a competent corps of volunteer attorneys has inspired a movement among lawyers to provide volunteer assistance to those who are unrepresented. The Varick Street Project was born, as recounted in the Times HERE.

Our borders cannot, of course, be open the way they were when my great grandparents arrived from Galway at Castle Clinton at The Battery. But the fact is that millions are here, their lives entwined with ours in blended families of immigrants and native born, trapped in the labyrinth that self-defense, aspiration, evasion, ineffective immigration controls, xenophobia, and harsh enforcement have created.

Fortunately the pro bono efforts of many lawyers makes a difference. But there is no just alternative to the politically unlikely demand we on the Editorial Board of New Jersey Law Journal have VOICED: create a federally-funded corps of competent attorneys to represent those facing removal from the United States.

"Deportation without Representation" NJ Law Journal calls for "corps of competent lawyers" to represent immigrants in removal proceedings

The New Jersey Law Journal Editorial Board has called on Attorney General Eric Holder to go beyond his reversal of Bush Administration policy which denied that deportees were entitled to 5th Amendment due process.

The crush of cases is such and immigration law's complexity so great that pro bono volunteers lawyers, non-profit advocacy groups, and immigrants themselves will never be able to furnish enough competent lawyers to assure an adequate hearing for those facing deportation, said the Board in its September 3 editorial:

Deportation Without Representation

New Jersey Law Journal

Every year, 300,000 aliens face removal from the United States in proceedings before 200 immigration judges. Many are in detention pending deportation; others are granted the privilege of voluntary departure. Many appeal to the Justice Department's Board of Immigration Appeals (BIA) and then petition the circuit courts for review.

Circuit judges have responded critically. Second Circuit Judge Robert Katzmann described as a "tsunami" the flood of immigration cases, which had gone from 4 percent to 39 percent of the Second Circuit's docket. In 2006, John Mercer Walker, then chief judge of the Second Circuit, pointed out, "For the BIA to keep current on its docket, even with streamlining so that the disposition is by a single judge, each judge must dispose of nearly 4,000 cases a year — or about 80 per week — a virtually impossible task."

The problem is compounded by the fact that many immigrants cannot afford lawyers and that frequently the quality of the lawyers retained leaves much to be desired. Judge Katzmann said last year, "By the time we get the case, it's often too late. It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good."

The problem was mitigated by the BIA's 1988 ruling, in Matter of Lozada , that ineffective assistance of counsel could be a basis for reopening or setting aside an adverse removal or deportation order. Most circuit courts have embraced that approach, including the Third Circuit, which held in Fadiga v. Attorney General, 488 F.3d 142 (2007), that incompetence of counsel may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due-process objection.

Although former Attorney General Michael Mukasey repudiated Lozada , Eric Holder has reversed that position in a formal opinion, 25 I&N Dec. 1 (A.G. 2009), and has embraced the Fifth Amendment assurance of a fair hearing, which may be jeopardized by ineffective assistance of counsel.

But although there is a statutory "privilege" to hire a lawyer, 8 U.S.C. 1362, the law provides that it must be "at no expense to the government." Reviewing courts therefore have no ability to provide counsel at public expense.

Volunteer attorneys and the financial resources of often impoverished immigrant aliens will never adequately assure the availability of competent counsel to those facing deportation. Many of those facing removal are children who know only America. Others are noncitizen parents who gave birth here to children who are natural-born American citizens. The complications are many, the rules complex and the consequences of removal often drastic.

To deal competently and fairly with the millions of foreign nationals living here who may be subject to removal, a competent corps of lawyers is needed. No court order will bring about such a corps. That is the province of Congress. We know how grave are the budget issues facing the nation. But we know too that democracy depends on the ability to effectively assert rights. We therefore urge the attorney general to bring the problem to the attention of the Congress, and to study how competent assistance of counsel can be afforded to persons facing removal from the United States.

Republished here with permission. c. 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is prohbited.