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Immigration Law

The First Immigration Public Defender System: New York City 2013

"On Friday, July 19, the New York City Council allocated $500,000 towards the “nation’s first public defender system for immigrants facing deportation,” as the New York Times described it.  $500,000 may seem small.  But New York’s pilot project shows that immigration appointed counsel is achievable, politically, financially, and logistically.  More importantly, the New York model is a first step towards a nationwide immigration public defender system.

Imagine yourself as an immigration detainee.  Not only in deportation proceedings, at risk of being separated from your family—but jailed, like 34,000 other immigration detainees today and 429,000 over a year, in facilities routinely denounced for substandard conditions.  Imagine excessive force, shackles, or solitary confinement, poor food and exercise, restrictive phone access and visitation, and inadequate law libraries containing English-only books.  Imagine all this in a rural place like Lumpkin, Ga. or Florence, Ariz., far from your family who might help by collecting documents or witnesses.

Yet unlike criminal jail, no one has ever told you “You have the right to an attorney.  If you cannot afford an attorney, one will be provided for you….”  So to stay in America, imagine arguing by yourself—in English, without evidence, against a trained government lawyer—Byzantine immigration issues so complicated that Justice Samuel Alito called it “unrealistic” for criminal lawyers to advise on them.  (For starters: whether the correct statutory test is a “strict” or “modified categorical approach,” depending on whether the criminal statute is “divisible” and the immigration statute is “generic” or “specific.”)  Given all this, some detainees still fight deportation in jail for years.  Others simply give up.

New York’s pilot project, called the New York Immigrant Family Unity Project, seeks to fix this.  Second Circuit Judge Robert Katzmann spearheaded the effort.  His group’s two reports—Accessing Justice and Accessing Justice II—identified New York’s “immigrant representation crisis.” As Judge Katzmann found, lawyers make all the difference.  97 percent of immigrants detained without counsel lost their deportation cases.

The New York pilot establishes a model immigration defender system to represent detainees, and California cities have already called about starting similar projects.  Importantly too, the pilot should demonstrate the cost-effectiveness of immigration defenders. ... " - Professor Mark Noferi, Aug. 1, 2013.