Toward a Public Defender System for Immigrants, by Lynn M. Kelly

A terrific leap forward for justice has happened in New York City. 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 is going 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 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.