Study Group Develops Solutions for Unrepresented Immigrants
By Pete Eikenberry and Lindsay Nash
When the Honorable Judge Robert A. Katzmann, then circuit judge for the U.S. Court of Appeals for the Second Circuit, delivered the Marden Lecture at the New York City Bar Association in February 2007, the statistics he detailed on the dearth of immigrant representation were grim. Immigration courts handled approximately 369,000 cases in 2005, and 186,000 noncitizens were deported from the United States in 2006: 65 percent of noncitizens facing deportation in 2006 were unrepresented. More than 200,000 immigrants were detained while facing deportation in 2006: 90 percent were unrepresented. Even among the immigration cases that reached the Second Circuit, 22 percent were handled pro se. The upshot of this widespread lack of counsel was that many, many people were forced to represent themselves in complicated legal proceedings in which the stakes could not be higher. They faced permanent exile, separation from their families, often torture or death, and lacked even the most basic protection – legal counsel – to help them make their cases.
The Study Group
Judge Katzmann sensed, based on his experience on the bench, that in many cases immigrants could have prevailed if they had been represented at the crucial initial stages of their case by competent counsel. With this in mind, he launched the Study Group on Immigrant Representation, a coalition of diverse actors in the field of immigrant representation dedicated to increasing the availability and adequacy of counsel. (The Study Group, which Judge Katzmann launched with the counsel of several other lawyers, is made up of some 75 lawyers from a range of firms; nonprofits; bar organizations; immigrant legal service providers; immigrant organizations; law schools; federal, state, and local governments; and judicial colleagues.) “I didn’t know what to expect,” Judge Katzmann observed, “but the response has been overwhelming, gratifying, and inspiring.”
Since its inception in 2008, the Study Group has worked to develop innovative solutions to the crisis in immigrant representation. Its work began with rigorous study of the systemic obstacles, the areas of greatest need, and models of excellent, efficient legal service delivery. This work served as the foundation of two models of service delivery that have been piloted in New York City – the New York Immigrant Family Unity Project and the Immigrant Justice Corps – and which, if brought to scale, could avert the disastrous effects of the dearth of counsel for our immigrant community members.
The New York Immigrant Family Unity Project is the first public defender-type system for immigrants facing deportation. It provides universal representation for New Yorkers who are detained and facing removal in New York City. Peter Markowitz, a clinical professor at the Benjamin N. Cardozo School of Law, has been at the helm of the Project. He credits its success to the collaboration that is the foundation of Study Group work and its relationship with New York City government. “Judge Katzmann definitely made it possible,” Markowitz recalled. “He pulled great people together and empowered and credited them and charged them with coming up with solutions to impossible problems. He expected that they would and gave them space to do it; he required collegiality, and he set expectations that we work together. These conditions enabled innovation.” Government allies proved critical, he explained, as the program has benefitted enormously from the support of Speaker Melissa Mark-Viverito, who has “made justice her personal mission. Because of the innovation of the mayor and the city council, we are able to say that any New York City family member who is locked up will have counsel.”
Unsurprisingly, this collaboration has borne fruit for actors throughout the system. Because of the cultural change in immigrant representation, immigration attorneys are collaborating, and the Department of Homeland Security is now put to its burden. Immigration judges are relieved because they no longer have to try to elicit the relevant facts from pro se defendants. Immigration Judge Noel Brennan explains that the “improvement in the quality of immigrant representation over just the last two years has had a profound effect on the administration of justice. For instance, now that all detained persons are represented, the judge does not have to try to wear two hats and be the advocate for the client in addition to being the judge. Now the lawyers are not only advocates but they provide the paperwork and witnesses necessary for the judges to make informed decisions.” In the long term, Markowitz predicts, “we will be able to show that, with counsel available from day one, there is a reduction in detention time and court time, and demonstrate improvement of the quality of justice and in the efficiency of ICE itself.”
Ultimately, Markowitz explains, this work has led to a “sea change” that has occurred in New York City: “Very recently, 60 to 80 percent of detainees had no counsel in deportation proceedings. There has been astounding change in the quantity and quality of attorneys and in the system.” In the first full year, the project served approximately one thousand immigrants and the results proved the importance of the project: nearly half of the clients were released from detention, and New York Immigrant Family Unity Project attorneys have won over two-thirds of the merits hearings (which are like immigration court trials) that they have handled.
Already, the New York Immigrant Family Unity Project model is being replicated. There has been a multi-million-dollar program in New Jersey and a smaller model in two locations in upstate New York. Allies in Boston, Chicago, and San Francisco are taking initial steps to implement public defender programs based on the New York pilot. One hopes that this effort will grow and provide counsel to the many New Yorkers who still face deportation without counsel and to unrepresented immigrants throughout the nation.
The other major Study Group-generated initiative, conceived of by Judge Katzmann – the Immigrant Justice Corps – is the nation’s first fellowship program dedicated to immigrant representation. It is modeled after the Peace Corps and AmeriCorps and followed those models in putting the most excited and capable young law graduates on a career-long path. As Markowitz, who helped design the program, explained, “[m]any who looked at the plan for the Corps before it happened thought it would be impossible, but, as Nelson Mandela said, ‘It always seems impossible until it’s done.’” Now, the Immigrant Justice Corps is a well-established source of immigrant legal services in the New York City area and the work of its fellows demonstrates its success. Markowitz noted that “the quality of people already in these coveted positions is outstanding and the Corps is getting a very high number of new very well qualified applicants. These young people see immigration rights as the civil rights issue of today. These inspired young attorneys are eager to fight the good fight and we provide that opportunity. It is public service at its best.” In addition, graduates of this program, led by Executive Director Rachel B. Tiven, appear likely to stay in the field, which will raise the quality of the immigration bar and the standard of representation for immigrants in New York—and hopefully throughout the nation.
The Immigrant Justice Corps’ viability depends on philanthropic support. In this regard, the support of the New York City legal community is essential. Judge Katzmann noted the important contributions of the Federal Bar Foundation and the law firm of Fragomen, Del Rey, Bernsen & Loewy, LLP, for each sponsoring an Immigrant Justice Corps Fellow. Tom Bezanson, President of the Federal Bar Foundation, said that “immigrants have been a proud and necessary heritage of this country. Supporting immigrant access to the courts is often crucial to the lives and well-being of recent arrivals. We are delighted to support the role that the Immigrant Justice Corps is fulfilling.” Michael Patrick, a partner at Fragomen, explained why such support would continue to be so crucial: “Although the past two years have seen remarkable success with the creation and solid start of the I.J.C., there is no question that there will need to be ongoing efforts to support and subsidize this effort. Over time, the ability of the I.J.C. to continue to positively impact the lives of hundreds – even thousands – of both detained and non-detained individuals facing immigration challenges will depend not only on top organization and recruitment, but on the legal and business communities stepping up with financial commitments.”
Together, the New York Immigrant Family Unity Project and Immigrant Justice Corps show the way forward: they serve as proof that collaboration among the public, private, and non-profit sectors, in-depth study, and a dedication to justice can generate creative solutions. These projects provide lifelines to the individuals served and their families. They also provide hope for the hundreds of thousands of immigrants in this country, many of whom are New Yorkers, who are forced to attempt to represent themselves in what one immigration judge described as “death penalty cases heard in traffic court settings” or otherwise navigate our immigration system alone. Hopefully, these Study Group projects can expand, replicate, and spur further growth in the effort to address the crisis of representation that affects our immigrant community members and undermines our justice system.