New York provides every immigrant detainee with a free lawyer: how it works

Deportation can have serious consequences. An immigrant may have to leave their family, sever years of ties with their community, and return to a country where they may have previously faced threats to their lives and livelihoods - even those that could qualify them for humanitarian protection in USA, if they could prove it. New York provides every immigrant detained with a lawyer, and US President Joe Biden wants to introduce such a rule throughout the country. How New York came to this and how the system works, the publication told Vox.

How New York Created the Universal Representation Model

New York was the first state to recognize the importance of ensuring universal representation of immigrants in detention, and has since inspired similar initiatives by states and local authorities across the country. There are currently 11 local anti-deportation programs in 43 states.

It all started with Chief Justice of the Second Circuit, Robert Katzmann, who gathered a group of lawyers to investigate the matter in 2011, noting that many immigrants who appeared before him on appeal missed potential opportunities to challenge deportation because they did not have a lawyer. ...

The group released a report which found that nearly two-thirds of immigrants in New York were unrepresented, and only 3 percent of unrepresented immigrants detained were successful. He also identified a shortage of talented lawyers able to meet this need.

The report was the catalyst for a New York City immigrant family reunification project that began at Immigration Court on Varick Street in Manhattan.

Sarah Dery Oshiro, who is now the Managing Director of the Immigration Practice at Bronx Defenders, worked on deportation protection for five years prior to implementing the program. She saw a grim reality for detained, unrepresented immigrants, despite the city's well-developed legal services network.

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“Given the time-consuming and resource-intensive nature of presenting detainees and conducting trials in very complex cases where an immigrant has the burden of proof to get help and the laws are against them, people simply didn’t have the resources,” she said.

The situation changed in 2013. Lawyers from several New York City Council-appointed nonprofits - Bronx Defenders, Brooklyn Defender Services, and the Legal Aid Society - chose a few days a week to take on each case when the person had at least 200 percent income. below the poverty line.

This was an important statement to the city, private sponsors and society that an immigrant's right to stand up for their cause should not be based on whether they are eligible to remain in the United States, said Deri Oshiro, who was part of the Bronx Defenders. And it made lawyers become the best lawyers.

“We were able to take on more complex cases and really change the way judges interpret the law,” she said. "We were creating a new, better law."

They were also able to win the trust of Department of Homeland Security lawyers and immigration judges and bring them to justice.

They did not take every case to trial - some people were simply not eligible for assistance, and in these cases they did not inspire false hopes. In the first two years of the program, 30 to 40 percent of their clients agreed to deportation at their first or second immigration court hearings, Deri Oshiro said.

This increased efficiency is critical as the country's immigration courts currently have more than 1,3 million cases pending, on average, about two and a half years pending.

But for those who were eligible for exemption from deportation, they were able to achieve better results. The Institute of Justice estimates that by 2017 the success rate of immigrants in the program was 48 percent - more than 1000 percent more than immigrants before the program. Immigrants who participated in the program were released from custody almost twice as often as unrepresented individuals in comparable immigration courts.

The program also helped maintain community and family ties. At the time of deportation, clients had, on average, resided in the United States for 16 years and were the parents of 1859 children living in the United States, the vast majority of whom had US citizenship or some other form of legal immigration status.

The program eventually expanded to New York, and in 2015 to immigration courts located in three prisons in the upstate: Fishkill Correctional Facility, Ulster Correctional Facility in Napanoch, and Bedford Hills Correctional Facility.

Breaking into the prison system is challenging, Rosa Cohen-Cruz said, and she helped oversee the expansion process as a senior immigration attorney at the New York City Prisoner Justice Service. Immigrants were often brought to these courts for hearings from other correctional facilities within hours, making it difficult for lawyers to meet with their clients.

These cases were also inherently more complex because immigrants who were prosecuted or with a criminal record were limited in their ability to be released and receive assistance from deportation.

Today, there is full universal representation for all immigrant detainees or imprisoned persons facing deportation in New York State.

“Our organizations are clearly committed to providing legal remedies for people who have had the most serious criminal convictions you can imagine,” said Deri Oshiro. "We still believe they deserve protection."

Biden wants to expand the program

The Sixth Amendment to the Constitution, which guarantees a public defender to anyone charged with a crime, does not apply in immigrant cases.

The Biden administration is trying to fix this problem. The President signed a presidential memorandum aimed at increasing access to legal representation and courts, including for the poor, immigrants and asylum seekers.

But the Biden administration doesn't have to look far for possible solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides funded attorneys for every detained or imprisoned immigrant in the state, offers a useful model.

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Advocates and experts say the New York project has inspired similar efforts at the local level across the country.

Biden now has the opportunity to take advantage of this.

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The New York City Immigrant Family Unity Project (NYIFUP) can serve as a model for other programs across the country and for the Biden administration as it seeks federal solutions to the crisis of representation.

Many local governments are already starting to push for deportation, but could expand with more funding.

“The NYIFUP model is definitely scalable,” said Jojo Annobil, executive director of the Immigrant Justice Corps.

Important lessons have been learned from NYIFUP's work. The main task was to convince patrons in the New York City Council that lawyers cannot attract as many clients as they expect from defense lawyers in the criminal system. There is no plea negotiation system in immigration courts, and the burden of proof falls on the immigrant, not the government. This increases the workload and limits the number of cases they can handle and how quickly they can resolve them.

“We were sorely lacking funds because of the amount of work that our staff had to do for each client over a long period of time,” said Deri Oshiro.

The program began to rely not only on competent lawyers, but also on a range of support staff: social workers, translators, administrators, and mental health providers to effectively substantiate cases. All of them are necessary to build an effective system.

If the federal government implements a federal system of public defenders to protect against deportation, it will have to ensure that there are competent lawyers in areas where there is not yet a reliable network of protection services against deportation.

“If they fund it properly, I don't think the lack of experience in legal services for immigrants will be an obstacle,” said Deri Oshiro.