Immigration Justice Requires Legal Representation – Debra L. Raskin

Debra L. Raskin

President’s Column, September 2014

At the New York City Bar Association, we consider one of our strengths to be the close collaboration between our committees, which have long worked to reform the law and improve public policy, and the City Bar Justice Center, which provides pro bono legal services to those who can’t afford a lawyer.

This symbiotic relationship is only natural, because the Justice Center—which grew out of the City Bar’s Robert B. McKay Community Outreach Law Program —has its roots in the work of certain of our committees in the early 80s. One of them, the Immigration and Nationality Law Committee, co-sponsored day-long clinics where volunteer lawyers helped Haitians with asylum claims. After a 1986 law offered undocumented immigrants a one-year amnesty to apply for residency, the Committee trained volunteer lawyers to staff clinics for applicants at neighborhood associations and churches.

While the Justice Center’s immigration projects have worked closely with the Immigration Committee over the years, the Justice Center’s leadership has been integrally involved in policy as well. Suzanne Tomatore, who directs the Justice Center’s Immigrant Women & Children Project, is on the steering committee of the Freedom Network, a national anti-human trafficking organization. Jennifer Kim, who directs the Justice Center’s Refugee Assistance Project, is a member of Judge Robert A. Katzmann’s Study Group on Immigrant Representation, as is Justice Center Executive Director Lynn Kelly.

If there has been a common thread in all of the City Bar’s immigration work over the years, it is with respect to the issue of legal representation for immigrant detainees, who have no right to an attorney even though they face consequences as serious as those affecting many criminal suspects who are entitled to counsel by law. In 2008, Lynn Kelly received an envelope containing a petition from 100 immigrant detainees decrying conditions at the Varick Street Federal Detention Facility in lower Manhattan. Teaming up with the American Immigration Lawyers Association and The Legal Aid Society, the Justice Center launched the NYC Know Your Rights Project, sending volunteer attorneys into the facility to interview detainees. The Justice Center and its volunteers found that 39% of the detainees had possible meritorious claims for relief from deportation, and volunteer lawyers won release for 21 detainees and cancellation of removal claims for 18 of them. In what was not an extraordinary coincidence, the Immigration and Nationality Law Committee released a report right around that time entitled “Report on the Right to Counsel for Detained Individuals in Removal Proceedings.” The Justice Center’s work on Varick was the subject of a front-page article in the New York Times.

Recently, the Committee, now chaired by Lenni Benson, has been extremely active in issuing reports and writing to government leaders on the issue of legal representation in immigration proceedings. On a national level, the Committee has worked with members of both Houses of Congress to include a right to counsel in any immigration law reform efforts. On the local level, earlier this year, the Committee testified before the New York City Council in support of the City’s allocation of $4.9 million to fund the nation’s first public defender system for detained immigrants.

The Committee’s arguments are bolstered by research it requested last spring, through WilmerHale, from NERA Economic Consulting, an independent consulting firm. The NERA report found that a national immigration federal public defender system would essentially pay for itself through cost savings in detention, foster care, and transportation. In a June 16th editorial headlined “Innocents at the Border: Immigrant Children Need Safety, Shelter and Lawyers,” the New York Times wrote, “The Dickensian absurdity often seen in immigration courts — little children propped up before judges and government lawyers with no idea of what is going on — must not be tolerated. Concerns about the cost of providing lawyers should by eased by a recent study from the New York City Bar Association showing that free legal representation for indigent migrants pays for itself, mainly by reducing the costs of unnecessary detention.”

Today the urgent immigration topic before the nation is what to do about the “Border Kids,” many of them fleeing the epidemic of crime and gang violence sweeping Guatemala, El Salvador, and Honduras. Fortunately, our Immigration and Nationality Law Committee has had an active subcommittee working on immigrant youth issues with the Family Law and Family Courts Committee and the Children and the Law Committee. In fact, ten members of the immigration committee work in the area of immigrant child protection. The subcommittee has participated in research on family court practices and conducted several citywide trainings to build skills and resources in the immigration and family law bars. Last year, the committee held five trainings inside the family courts, offering free CLE credits to attorneys interested in learning about Special Immigrant Juvenile Status, which affords legal status to children who have been abused, abandoned, or neglected by a parent.

In late July, urgent concerns arose with respect to the fast-track “surge docket” strategy the federal government is implementing that provides only perfunctory hearings into detainee’s claims that returning home means a return to the grave danger they just fled. The Committee wrote to Congress to support, among other things, appropriations for appointing counsel for children in removal proceedings, and to urge access to full hearings for these children as provided by the Trafficking Victims Protection Reauthorization Act. The Committee cited a recent study showing that nearly half of the children in removal proceedings are unrepresented, and that only one in ten unrepresented kids won relief from removal compared to 47 percent who had counsel. In a Huffington Post op-ed on July 31st, the Committee also took its message to the public, a significant majority of which, a recent poll shows, supports legal representation for immigrants facing deportation.

Last month, Lenni Benson and I wrote to President Obama about reported denials of due process and access to counsel in the detention facility in Artesia, New Mexico, urging the Administration “to take immediate action to ensure that these families, many of whom have fled persecution and extreme violence in their home countries, are afforded fundamentally fair hearings that comply with U.S. and international law, rather than being detained and processed rapidly for deportation without the fair procedures necessary to determine whether they are entitled to protection in the United States.”

With thousands of border kids being transferred to New York, our Immigration Committee will continue to provide trainings and in October, Lenni Benson will speak to the Office of Court Administration about systemic issues and possible reforms in the family courts. Further, the Justice Center will train pro bono attorneys to handle cases, will take on 10 cases in-house, and will provide technical assistance to pro bono attorneys who email questions to And the Justice Center will work with the Immigration Committee on a report on the constitutional right to counsel for unaccompanied, indigent, immigrant children facing removal.

As the border kids issue plays out, and as the next immigration issue inevitably presents itself next month, next year, or next decade, I know that our Immigration and Nationality Law Committee and City Bar Justice Center, their ideas informed and their credibility strengthened by their work on the ground, will continue their extraordinary work as both thought leaders and action leaders for increasing access to immigration justice.