A post published today on the Huffington Post, by the chair of the City Bar’s Immigration & Nationality Law Committee, Lenni Benson, along with the two co-chairs of the Subcommittee on the Right to Counsel and Due Process for Migrants, Farrin R. Anello and Michael D. Cooper, addresses “the refugee crisis unfolding on our southern border.”

The piece argues that the crisis is not about disrespect for the law, or lack of enforcement, as some have suggested. “These children are not eluding authorities; they are seeking out authorities. They have come here not to evade U.S. law, but rather to embrace U.S. law and the protection it offers to victims of persecution, human trafficking and torture,” the post states.

The authors push back against what they see as an emerging consensus “between the White House and Congress to diminish the protection and due process rights of children.” Rather, under the Trafficking Victims Protection Reauthorization Act, and with evidence that nearly 60 percent of children entering the U.S. may have a valid claim to international protection, due process requires that we determine who among these kids has a valid right to stay here, they write.

That task is easier said than done: “[P]arsing through a child’s case is no easy task, especially when the child is a victim of serious crime, or sexual or domestic abuse, or has grown up surrounded by extreme violence, or suffers from shock or trauma.”

The authors propose that the best way to get to the bottom of each child’s case, and to resolve the overall crisis, would be to provide government-appointed counsel to these children. And the authors cite recent research from the economic consulting firm NERA that shows that “the savings to the Federal government from detention, foster-care and transportation outlays alone would pay for most if not all of the cost of providing lawyers.”

Read the full piece on the Huffington Post here.

 

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The New York City Bar Association presented its Norman Redlich Capital Defense Distinguished Service and Pro Bono Awards on July 14th. James S. Liebman, a litigator and scholar who has worked to abolish the death penalty and to prevent the execution of numerous prisoners sentenced to death, received the Distinguished Service Award, and Kaye Scholer LLP, which has advocated for death-row inmates since the early 1990s, received the Pro Bono Award. Representing Kaye Scholer was Lori B. Leskin.

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International Justice Day is a particularly appropriate time to acknowledge the importance of having international and hybrid courts, as well as domestic courts, available to prosecute genocide, war crimes and crimes against humanity.

Tribunals such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon have been important tools in the fight against impunity.

A significantly more important component of the system of International Justice is the International Criminal Court (ICC), a tribunal currently prosecuting genocide, war crimes and crimes against humanity in The Hague, Netherlands.

The New York City Bar Association was one of the earliest leaders in endorsing the ICC, with a statement in 1997 towards the end of the negotiations to create the Rome Statute that established the court.  The City Bar also went on record as supporting accession by the United States to the Rome Statute in 2002.

The ICC is now a fully established and permanent institution.  In its 21 cases, of which two have now resulted in convictions, the Court has already made important progress in clarifying and implementing international law as to the core crimes in its jurisdiction.

The Court is especially important for lawyers to advance the rule of law internationally, for setting and applying high standards of due process, and for developing ways for victims to participate and have a voice in trials.

One hundred and twenty-two countries are parties to the ICC’s Rome Statute.  While the U.S. is not yet a party, the City Bar is pleased by the effective and increasingly close relationship between the U.S. and the Court and calls for the progressive removal of legislative obstacles to full U.S. engagement.

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The City Bar Justice Center applauds the New York City Council’s allocation of $4.9 million in new funding for the New York Immigrant Family Unity Project (NYIFUP) in this year’s city budget. The funding will establish the nation’s first public defender system for detained immigrants. By 2015, NYIFUP should be able to provide deportation defense to over 1,300 immigrants. The funding will go to three public defender organizations with experience in the overlap between criminal and immigration law and to Vera Institute for Justice, which coordinates the project.

The creation of the NYIFUP is the result of dozens of groups—and much of the legal community, including law schools, bar associations like the New York City Bar Association and pro bono groups like the Justice Center, along with private attorneys—working together with the Katzmann Study Group to find a solution to the growing number of immigrant New Yorkers deported without access to counsel. This problem had existed for a long time, but under the Obama Administration the number of immigrants detained and deported, including in New York, has soared. As of January 2014, there were 49,539 pending cases in New York City immigration courts—nearly double the amount at the end of fiscal year 2008.

The Justice Center responded to the lack of counsel for detainees by starting a pilot pro bono project in 2009, which included a weekly clinic in the Varick Street detention facility. We issued a report on the cases reviewed, finding that 39% of detained immigrants had a possible legal claim but no attorney to represent them. Thanks to the global immigration law firm Fragomen, a series of Fragomen Fellows at the Justice Center have managed collaborations with AILA NYC Chapter, The Legal Aid Society, NYU School of Law’s Immigration Clinic and others to train dozens of volunteer attorneys from leading New York City law firms to staff the clinic and handle cases on pro bono assignment from the City Bar Justice Center.

The Justice Center and our pro bono volunteers have together won release of 21 immigrants from detention and won cancellation of removal claims for 18 of them, reuniting loved ones with their families. This showed us what a difference trained counsel could make, a conclusion arrived at by many other recent studies of the unfairness in the immigration removal system, where many poor clients lose their cases because they cannot afford counsel.

Just a few weeks ago, the New York City Bar Association welcomed the issuance of NERA Economic  Consulting’s report “Cost of Counsel in Immigration: Economic Analysis of Proposal Providing Public Counsel to Indigent Persons Subject to Immigration Removal Proceedings.” NERA’s report, by Dr. John Montgomery, affirms the City Bar’s longstanding support for appointed counsel in immigration removal proceedings. The report finds that a national immigration federal public defender system’s benefits could offset the federal government’s costs, through detention, foster care and transportation savings, even without quantifying other likely fiscal, social and administrative benefits. As Dr. Montgomery said, “When we conducted our analysis, we found that under plausible assumptions, providing counsel to indigent respondents could pay for itself.”  We congratulate the City Bar Immigration and Nationality Law Committee, chaired by Lenni Benson, for requesting this report, and WilmerHale LLP for retaining NERA and providing extensive pro bono assistance to the City Bar in its immigration reform advocacy.

Building a local immigrant defender system will prove to be a wise move for New York City. The cost savings that will accrue may be enough to convince Washington and the rest of the country not to continue denying due process rights to family members that become ensnared in the tangle of our complex immigration laws. Sometimes doing the right thing is also the cost effective course of action, and that is all the more reason to provide representation to detained immigrants.

Lynn M. Kelly is Executive Director of the City Bar Justice Center.

 

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The New York City Bar Association’s Committee on Legal Services for Persons of Moderate Means, in conjunction with the City Bar Justice Center, seeks volunteer attorneys to staff the Monday Night Law (MNL) clinic, which begins its 24th year in September. MNL is designed to address the public’s need for affordable, accessible legal assistance by holding clinics every Monday evening at the City Bar. At the clinics, volunteers meet with clients who have been screened by the Association’s Legal Referral Service, which coordinates MNL’s scheduling. Volunteers must attend two training sessions in September and commit to attend a clinic one Monday evening per month from October 2014 through August 2015.

During 30-minute appointments, clients and attorneys discuss issues in the areas of housing, employment, family law, consumer law, small business and personal bankruptcy. The volunteers do not take any cases, but will distribute materials and provide explanations and suggestions to help clients understand and find solutions to their legal problems on their own, or, where appropriate, make referrals for representation back to the Legal Referral Service or other legal services providers.

Volunteer attorneys must commit to attending two training sessions at the City Bar, on Monday, Sept. 8, 2014, and Monday, Sept. 22, 2014, from 5:45 p.m. to 9:00 p.m. in the Meeting Hall on the second floor of the Association. Continuing legal education credit is available upon completing the requirements for the trainings and attendance at the MNL clinics; pro bono CLE credit is also available for the MNL clinic work.

No prior experience in the topics covered is necessary. To participate in the program, volunteer attorneys must (1) be admitted to practice in New York, and (2) have been practicing law for at least two years in the public sector, private practice, as in-house counsel, or in some other capacity, or have had some significant related experience. There are limited roles for non-admitted attorneys. For a copy of the full clinic description and an application to participate, please email here by Friday, Aug. 15, 2014.

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The City Bar strongly supports the Vulnerable Immigrant Voice Act, which would provide counsel to unaccompanied children and the mentally disabled in deportation proceedings. This is a crucial first step toward ensuring fairness and justice for those incapable of representing themselves. Moreover, as the report we requested from NERA Economic Consulting demonstrates, a national public defender system for immigrants facing deportation would pay for itself through savings in the cost of detention, foster care and transportation. We support Representative Hakeem Jeffries’ leadership in working to provide much needed counsel to these vulnerable groups.

Debra L. Raskin, President

 

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The New York City Bar Association applauds the Legislature for passing a bill that, with the Governor’s signature, will increase the number of Family Court judges throughout New York State. This greatly needed legislation will immediately benefit children and families, helping to ease the strain on an overburdened Family Court. We commend the legislative leaders and members of the Senate and Assembly, the Office of Court Administration and the coalition of advocates who have worked tirelessly to achieve this victory for New York’s justice system.

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Anticipating that targeted killings by drones may increase in the future, both by the United States and by other countries, the New York City Bar Association today released a report analyzing the legality of targeted killings by drones launched by the United States in the context of international law.

While noting that there are serious constitutional, moral and policy issues associated with targeted killings using drones, some of which the City Bar has addressed elsewhere, today’s report—titled “The Legality Under International Law of Targeted Killings by Drones Launched by the United States”—deals strictly with the legality of drone strikes under current international law. The 181-page report characterizes the international legal issues as “complex,” and the analysis “complicated” because, among other reasons, “although the analysis of the legality of a drone strike is highly fact-specific, the facts surrounding the strikes are unclear.”

Based on the facts in the public record, the report concludes that while the U.S.  invasion of Afghanistan was a legitimate act of self-defense in response to the 9/11 attacks by al-Qaeda, those attacks no longer supply a legal basis for additional measures, such as drone strikes, against al-Qaeda or its alleged affiliates. Rather, under international law, “If the continued use of force is to be justified on the basis of self-defense, it must be justified by current armed attacks,” the report states.

Under international law, the Report concludes, “the inherent right to self-defense is available against non-State actors, such as terrorist groups…if there is an actual or threatened ‘armed attack’ by the non-State actor.”  In exercising the right of self-defense, the State may use force against a non-State actor, constrained by the principles of necessity and proportionality, within the territory of another State so long as force is directed against that actor and not another State, even in certain circumstances before an armed attack has occurred if the State has “no choice of means” to protect itself short of the use of force.  The report observes, based on publicly-available information, that many States appear to have consented to U.S. drone strikes, making unnecessary any self-defense analysis.

The use of force in another State’s territory without its consent, based on a claim of “self-defense,” triggers a duty to make disclosures to the United Nations Security Council under Article 51 of the UN Charter, the report explains.  “[I]f Pakistan currently denies consent to U.S. drone strikes, as it has stated publicly, the U.S. has a duty to report to the Security Council on its invocation of Article 51 with respect to those strikes,” the report states. “Consistent with its prior practice, the U.S. should disclose the armed attack(s) giving rise to the right to act in self-defense and the measures that the U.S. is taking in the exercise of that right. It does not appear that the U.S. has met its disclosure obligations under Article 51 with respect to Pakistan.”

Even if the use of force on another State’s territory is lawful, the report explains, the legality of killing a particular individual depends upon the existence of an armed conflict.  According to the Report, “Except in extreme circumstances, a targeted killing outside of an armed conflict is almost certain to be contrary to [International Human Rights Law], which guarantees to each individual the right to life.”  Whether an “armed conflict” exists is a determination that must be made on a State-by-State basis by considering the “intensity of the conflict” and “whether the individual non-State organizations in those countries have the structure required to qualify as ‘parties’ to an armed conflict.”  The report explains that the issue of an alleged “global war” is irrelevant under international law if the United States is involved in domestic armed conflicts within individual States, even against different parties.

The Report states that where it is determined that the United States is involved in an armed conflict with a non-State actor, “we follow the [International Committee of the Red Cross] Guidance that the principle of distinction permits the United States to target and kill a member of the non-State actor’s ‘armed forces,’ i.e., a member of the armed group who performs a ‘continuous combat function,’” the report states.

Beyond the Article 51 requirements concerning the use of force on another State’s territory, the report concludes that “the United States is not required to make further disclosures on targeted killings under international law, no matter how desirable such disclosures might be as a matter of policy or ethics.”

The Report makes clear that it “does not address the legality of the targeted killings under domestic U.S. law. Nor does it discuss the appropriate policy that should be followed even if that policy is not prohibited by law. However, we recognize that decisions regarding the U.S. targeted killings policy must be considered in the context of this nation’s democratic process. There are serious constitutional and other implications of conducting a largely secret war, and policy issues on its wisdom and morality. Thus, this Bar Association has urged that the U.S. Government make public the legal justification of its targeted killings policy. In a 2012 letter to President Obama, Association President Carey R. Dunne said, ‘Given the importance and relative novelty of the drone strategy, we believe this program should be the subject of informed public discussion and that, so long as the program is in use, decisions to use drone strikes should be made with the strictest of scrutiny and in a manner best calculated to avoid collateral damage.’”

For the full report, click here: http://bit.ly/1lKPEuV

For the introduction and executive summary only, click here: http://bit.ly/1oLzERD

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