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Right to Legal Counsel for Immigrant Detainees: A Progress Update

On September 30th, the New York Law Journal reported on the two public defender organizations that will form the New York Immigrant Defenders (NYID), a unique pilot project to provide universal legal representation to indigent detainees facing deportation. Through funding from the New York City Council, NYID will begin in early November and take on 166 cases in the next year at the Varick Street Immigration Court. Potential clients will be screened only for economic need, with anyone making under 200 percent of the poverty limit receiving a court-appointed lawyer.

This announcement is of particular interest to the City Bar Justice Center because we operate programs serving low-income New Yorkers in ICE detention and have long advocated for the right to government assigned counsel for anyone facing removal. In addition to our work on community education regarding immigration rights, the Justice Center has three main pro bono immigration programs. The Justice Center’s Immigrant Women & Children Project assists survivors of violent crimes in applying for immigration relief, the Refugee Assistance Project helps those who have fled violence in their own countries to obtain asylum, and the Varick Removal Defense Project specifically matches pro bono attorneys to New Yorkers who are detained and cannot afford attorneys to enable them to raise cancellation and other defenses in the Immigration Court.

Additionally, research by a study group convened by Second Circuit Judge Robert Katzmann demonstrated the inability of immigrant detainees to represent themselves, with only three percent of them achieving success in their cases without counsel. Lynn Kelly, the Executive Director of the City Bar Justice Center, participated in Judge Katzmann’s efforts. The Justice Center is hopeful that the NYID model is a first step towards a nationwide immigration public defender system that will ensure fairness and the opportunity for all residents of New York City to have their day in court with lawyers who will assert their rights.

The launch of this innovative pilot project is particularly timely in light of a recent report that calls into question the way in which many individuals end up in ICE detention in the first place. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University has newly obtained data from Immigration and Customs Enforcement (ICE) that shows a startling difference between the agency’s stated goals and its actual performance. Specifically, the report focuses on ICE detainers, which are notices issued by ICE and other Department of Homeland Security (DHS) agencies that ask local, state and federal law enforcement agencies not to release suspected non-citizens held at their facilities in order to give ICE an opportunity to take them into custody. While these detainers have became a primary tool that ICE uses to apprehend the suspects it is seeking, there is no legal obligation for state and local law enforcement agencies to honor these detainers and some jurisdictions have begun refusing to hold individuals arrested for minor violations or those who pose little to no risk to public safety. The case-by-case data received by TRAC reveal that, despite ICE setting new, stricter detainer guidelines in December 2012, fewer than one in nine of the ICE detainers actually met the agency’s stated goal of targeting individuals who pose a serious threat to public safety or national security. Further, only one third of the individuals against whom detainers were issued had any record of a criminal conviction, including minor traffic violations. Equally troubling, common offenses like simple traffic violations can sometimes lead to the placement of an individual in the highest threat-level category.

The Justice Center, whose clients cover a broad spectrum of New York City’s neediest and whose mission is to provide lawyers to those unable to adequately represent themselves, salutes the City Council’s commitment to fund lawyers to represent the underserved community of non-citizen residents facing detention and deportation.

The City Bar’s reports on right to counsel for immigrant detainees can be read at the following links:

Varick Removal Defense Project’s Report

Immigration & Nationality Committee’s Report

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