NYC Bar Association Calls for Right to Counsel for Immigrant Detainees

November 2, 2009, New York — Finding that over one-third of immigrant detainees at the Varick Federal Detention Facility in New York City had reasonable claims for relief from removal, and considering the high financial and moral costs of maintaining the current detention system for immigrants, the New York City Bar urges that all immigrant detainees be provided with legal counsel. Currently, there is no right to counsel for immigrant detainees.

In a report issued today, the City Bar Justice Center, the nonprofit legal-services provider housed at the City Bar, describes its findings from the NYC Know Your Rights Project, a pro bono weekly clinic being conducted in collaboration with The Legal Aid Society and the American Immigration Lawyers Association’s NYC Chapter. The study covers the period between December 2008 and July 2009.

Based on data obtained through the counseling of 158 detainees by pro bono attorneys, the Justice Center found 39.2% had possible meritorious claims for relief from removal. In addition, although 10% of the detainees interviewed had been granted bond, the amount was set so high that all but two could not raise the funds and thus remained housed in the facility. Other detainees were shipped to other parts of the country where access to counsel is even less likely than in the New York metropolitan area, sometimes before the volunteer lawyer could finish researching the case.

The Varick findings support the conclusions of a separate report recently released by the New York City Bar’s Committee on Immigration & Nationality Law titled, “Report on the Right to Counsel for Detained Individuals in Removal Proceedings.” The Committee’s research found that detainees’ chance of a successful outcome was drastically reduced by lack of counsel. In Fiscal Year 2003, represented non-detained respondents secured relief in 34% of cases, while only 23% of unrepresented non-detained respondents were able to do so. Represented detained respondents received relief in 24% of cases, compared to 15% for unrepresented detained respondents.

The disparities in outcomes grow more pronounced for respondents who apply for political asylum before the Immigration Court, according to the Committee’s research. Non-detained represented asylum seekers received asylum 39% of the time, in contrast to only 14% of non-detained unrepresented asylum seekers. Represented detained asylum seekers were granted asylum 18% of the time, compared to 3% of detained asylum seekers who did not have counsel.

According to the Committee’s report, legal representation of detainees would have the added benefit of making the system more efficient and less wasteful:

“Beyond implicating basic fairness issues rooted in the constitutional rights of the individual, creating a right to appointed counsel in the immigration system actually benefits the government and expedites the administration of justice. Expenditures to increase representation rates for indigent respondents in removal cases would serve the purposes of the agencies’ general appropriations by leading to more efficient immigration court proceedings, reduced detention costs, and better-informed decision making by the IJ and BIA.”

Citing “serious due process concerns” based on Immigration and Customs Enforcement’s (‘ICE’) increased use of “detention as an enforcement policy,” resulting in more unrepresented respondents appearing before the Immigration Court, the Committee’s report concludes, “This glaring injustice can be remedied by recognizing the right to appointed counsel for indigent detained respondents.”

New York City Bar President Patricia M. Hynes said, “The work in Varick shows what the Committee’s report states, that removal proceedings are criminal trials in all but name. The adversary system only works as it should if the playing field is kept level with legal representation on both sides.”

The Varick project began when the City Bar Justice Center received a petition signed by 92 detainees in the facility, complaining of conditions, including inadequate access to medical care. The petition states:

“Firstly and most importantly despite the fact that upon admitting us in here, we are given a ‘detainee handbook’ which very nicely lists our rights and obligations in here, almost nothing is followed or applicable giving them the full power to change the rules as they go. Reducing us to silence by using force, mental torture (yes torture in America) if we try to put a complaint we are threatened to be moved to worse facilities around the country, (what can be worse then this?). So fear is a tool they like to use commonly to control us.”

The Justice Center found that the most common forms of relief for detainees were cancellation of removal; asylum; withholding of removal, and/or relief under the Convention Against Torture; nonimmigrant visas including U and S visas; 212(c) relief; and adjustment of status under 245(i) of the Immigration and Nationality Act.

Lynn Kelly, Executive Director of the City Bar Justice Center, said, “Bearing witness to the detention of people without access to counsel, particularly those who have lived, studied and worked in our community, in some cases for their whole lives but for their birth outside the country, is difficult. The wrenching costs of detention to spouses, life partners, children, parents, employers and communities is beyond the scope of this report, but the toll we witnessed on these cases is high.”

The Justice Center’s report makes eight recommendations to improve the procedures at the Varick Federal Detention Facility:

1. All indigent detainees should be assigned counsel.
2. Bond amounts for detained immigrants with family and ties in the NYC region should be set substantially lower.
3. The Varick Facility should be used to house detainees with family and other ties to the New York City community on a longer-term basis.
4. Detainees already consulting with attorneys based in the New York area should be kept at Varick.
5. If a detainee must be transferred, the attorney of record should be notified immediately, and all mail should be forwarded to the detainee.
6. Legal orientation presentations should be made available to the immigrants upon being detained at the Varick Facility.
7. Scheduling for the NYC Know Your Rights Project should be done by language group.
8. The Varick law library should be staffed with a law clerk to assist with research and writing.
9. Report links:
10. NYC Know Your Rights Project
11. Report on the Right to Counsel for Detained Individuals in Removal Proceedings