NY calls for first right to a lawyer in the country in case of eviction

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The scene at 26 Federal Plaza in Manhattan, one of the nation’s busiest immigration courts, is often chaotic: On any given day, hundreds of people line the halls, waiting for their cases to be called. There are more than 20 courtrooms and the lack of adequate translation services prevents people who do not speak English from understanding what is being said and what the charges are against them.

Talia Peleg, co-director of the immigrant rights clinic at the City University of New York School of Law, regularly represents clients in this court and called it a “total mess” that is difficult to manage even with an attorney. But a lot of people there don’t have a lawyer, she said.

“When the judge calls your name, there’s a government-trained attorney in front of you,” Peleg said. “I’ve watched many, many hearings, where people are without a lawyer, where I’ve been present in the courtroom. It’s really devastating to watch.”

Nearly one in three noncitizens in New York immigration proceedings do not have a lawyer. A bill introduced in January would create a first nationwide right to counsel for those facing deportation and improve the chances for thousands of them to obtain redress.

If signed into law, the Access to Representation Act would require the state to appoint an attorney for anyone who has a case before an immigration judge or has a basis to appeal a former court order. deportation, as well as other immigrants who meet certain income requirements.

“This would ensure that no one would have to defend themselves against a qualified government attorney in order to protect themselves and their families from deportation,” said Nicole Catá, director of immigrant rights policy at the New York Immigration Coalition, which worked on drafting the bill, told Law360.

There are nearly 180,000 non-citizens in the state who have immigration proceedings pending. More than 52,000 of them are unrepresented, according to the Transactional Records Access Clearinghouse, a research institution based at Syracuse University.

The proposed legislation builds on existing programs that have been launched in New York over the past decade. In 2013, the New York Immigrant Family Unity Project, an initiative led by the Vera Institute of Justice, began representing people in New York who are facing deportation and who are detained. The program is covered by public funds.

In 2017, the program was expanded to the rest of the state. Since then, it has been replicated in over 50 other jurisdictions in 21 states. Most programs give priority to people in custody. In addition to New York, seven other states – New Jersey, Illinois, Colorado, Nevada, California, Oregon and Washington – have funded statewide programs provide legal representation people threatened with deportation.

States Invest Public Funds in Deportation Defense

More than 50 jurisdictions in 21 states fund programs that provide legal representation to people facing deportation. Eight states have statewide programs.

Source: Vera Justice Institute

So far, no jurisdiction has codified in law the effective right to counsel in eviction proceedings, which, unlike criminal cases, are civil in nature. This is where the bill proposed in New York would be revolutionary.

“It would be the first time in the country that you had a system where when a person is threatened with deportation, they automatically get a lawyer,” Assemblywoman Catalina Cruz, a former non-immigrant, told Law360. authorized who presented the bill in his room.

Shayna Kessler, head of state advocacy for the Vera Institute of Justice’s Advancing Universal Representation initiative, told Law360 that while the immigration system as a whole needs fixing, the bill would help alleviate some of its most harmful aspects.

“People are still left to fend for themselves in immigration court if they can’t afford to hire a lawyer,” she said. “Hopefully that’s something this bill will address and it won’t be the case in New York State anymore.”

A 2017 analysis of results by Vera showed that the New York Immigrant Family Unity Project was successful: access to lawyers resulted in a 48% success rate for detained New Yorkers, up from 4% before launch of this program, an 11-fold increase. . The findings are similar to a study by the American Immigration Council that examined case outcome data collected by the Executive Office for Immigration Review of the US Department of Justice.

Last year, the state spent $20 million on immigration legal services, a figure Catá called “historic” but still not enough.

The Access to Representation Act would create funding streams for immigration legal services on an ongoing basis, which has so far been lacking in the state. Eviction proceedings take years to unfold and lawyers regularly face the prospect of not being paid for their work. That uncertainty trickles down to their customers, many of whom have just arrived in the United States and face language barriers, Catá said.

The bill would guarantee $55 million for legal services in its first year. Funding would increase each subsequent year. A memo accompanying the bill says the program will cost $300 million a year when fully implemented, by year six.

Catá said the ramp-up period is necessary to set up the program with enough immigration lawyers, support staff and social workers to support ongoing cases.

“If the bill were to go into effect tomorrow upon full implementation, there simply wouldn’t be enough attorneys in New York State to provide everyone with representation in court in the United States. immigration,” she said. “We kind of built into the bill this mechanism by which the state would be able to build capacity.”

Legal service providers and community organizations would play a key role in implementing the bill, including setting up a pipeline feeding lawyers into the program. That would involve working with law schools, Catá said.

The cost analysis of the bill takes into account the number of people who must appear before an immigration judge and the number of lawyers needed to assist them. Implementing the program would also require securing an office space.

“We really thought about all the potential implications,” Catá said.

A coalition of immigrant rights advocates, which includes the New York Immigration Coalition, the Vera Institute and other nonprofits, has been pushing for years for the right to an attorney for those facing deportation. The Access to Representation Act was first proposed in 2020, but stalled. Its current version has 23 sponsors in the state Senate and 47 in the Assembly, all Democrats and mostly from New York.

State Senator Brad Hoylman, who introduced the bill in the New York Senate, said it was necessary to meet the high demand for immigration lawyers at a time when immigrants cross illegally the US border in numbers not seen in decades. He also called it an “antidote” to the vitriol directed at immigrants by Southern state governors who have recently transported thousands of them in New York and other Northeastern cities to protest President Joe Biden’s border policies.

“We are at a time in the history of our state and our nation where thousands of asylum seekers are arriving in New York and other parts of the country,” he said. “I really don’t see anything more important that we should be focusing on in terms of expanding legal representation.”

John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, a nonprofit organization that advocates for the right to legal representation in civil cases, told Law360 that while other similar bills do not ‘have failed to gain traction in the past, New York’s has a better chance of making the books, in part because the data on the success of the state’s pilot programs is so compelling.

Immigration rights advocates and clinic lawyers said they are often amazed at how many Americans are unaware of the implications of being a defendant in immigration court. Despite facing civil suits, more than 1.6 million immigrants are currently held by U.S. Immigration and Customs Enforcement in jails where they are often prevented from communicating with lawyers or their family members.

Even when not detained, the stakes are high for people, many of whom are fleeing extreme violence and hardship in their home countries, and many more who have lived in the United States for years or decades. and have built families and lives.

“It looks a bit like an administrative framework, but in reality the right decisions are made about life and death, deportation, being able to stay with one family, potentially being sent somewhere where someone fears for his or her life,” said Peleg, the co-director of the CUNY Law School Immigrant Rights Clinic.

The New York State Bar Association and the American Bar Association have called for the creation of a federally funded system of appointed attorneys for indigent immigrants in immigration court proceedings, but the idea has not not yet implemented.

Immigration law is notoriously complex and subject to continuous change by each administration. While browsing there, non-nationals encounter many obstacles in addition to language barriers. They face financial constraints, political fears and extremely long waiting lists.

“Some of them are literally children as young as three or four years old, and they go through these proceedings without a lawyer,” said Pollock of the National Civil Rights Coalition for a lawyer. “When you look at all of this, it becomes almost impossible to believe that this system was allowed to operate like this.”

He said there is a false public perception that people facing eviction have the right to a lawyer.

“People would assume, of course, that you get a lawyer for this,” Pollock said. “Actually, no. You don’t.”

–Edited by Emily Kokoll and Lakshna Mehta. Graphics by Ben Jay.

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