Professor Mark Noferi teaches a Civil Rights and Immigration Seminar at Brooklyn Law School, as well as legal writing. http://www.brooklaw.edu/faculty/directory/facultymember/biography.aspx?id=mark.noferi
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. Oren Root, of the Vera Institute for Justice, estimated that representation for indigent detainees with viable claims would cost about $3,000 per case. This is lower than federal criminal public defender costs, which averaged $4,178 per case in FY 2010.
Thus, pilot projects like New York’s serve as a model for nationwide representation. As I wrote in Slate, and the New York City Bar called for, Congress should at least provide counsel to detainees in deportation proceedings—now. While other elements of immigration reform spark controversy, providing lawyers to detainees “would be a surprisingly easy sell politically.” (This HuffPost Live panel discussion has more information).
A national consensus is emerging that lawyers for the jailed reflect American due process values, no matter who the jailed and what their citizenship. No citizenship test exists in America for appointed counsel. Those words “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you” do not include “only if you are a citizen.” So, without political blowback, Congress has extended the right to appointed counsel to accused violent felons at bail hearings (1984), convicted sex offenders at civil commitment hearings (2006), and suspected al-Qaida supporters in military detention hearings (2012), whether citizens or not.
Today, this bipartisan support extends to immigration proceedings. 76 percent of Americans, including 67 percent of Republicans, support counsel in deportation proceedings. A 2009 report recommending appointed counsel for immigration detainees was signed by conservative policymakers like Asa Hutchinson, Bush administration Homeland Security undersecretary, and David Keene, later National Rifle Association president. Immigration judge Paul Grussendorf recently called detention without appointed counsel un-American. As New York City Bar President Carey Dunne said, representing his organization’s 23,000 lawyers, “it’s hard to see why appointed counsel is still denied to non-citizen residents facing detention and deportation.”
Moreover, cost analysis of immigration appointed counsel can be a positive talking point, not a negative. Immigration public defenders would provide economic and social benefits that outweigh their costs, by reducing costly detention, increasing court efficiency, and reducing societal costs due to the splitting up of families and the resulting abandonment of children. The New York City Bar’s Immigration & Nationality Law Committee is currently preparing a report to more specifically articulate these benefits. As Congress considers increased detention in immigration reform, Congress should at the least give those detainees lawyers.
The momentum is building towards a nationwide immigration public defender system. It is up to Congress to put one into action.
Read Mark Noferi’s recent article on immigration detainees, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrant Pending Removal Proceedings, 18 Mich. J. Race & L. 63 (2012). He also chairs a subcommittee of the New York City Bar studying immigration detention, which is actively advocating Congress for appointed counsel and reduced detention in immigration proceedings. He can be reached at email@example.com