When Legal Representation is De½cient: The Challenge of Immigration Cases for the Courts

Robert A. Katzmann

Abstract: When the quality of lawyering is inadequate, courts are frustrated in their adjudicative role. Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 Nowhere is this more apparent than in cases involving immigrants hoping to fend off deportation. As an appellate judge on a court whose immigration docket reached 40 percent of our caseload, I have too often seen de½cient legal representation of immigrants. Although courts are reactive, resolving cases before them, judges can systematically promote the fair and effective administration of justice. With the aid of some outstanding legal talent, I created the Study Group on Immigrant Representation to help address the immigrant representation crisis. Our work has encompassed a variety of activities, including: publishing symposia; conducting studies documenting the enormity of the problem and proposing solutions; creating initiatives to expand pro bono representation; facilitating the ½rst local government funding of direct immigrant legal services; creating legal orientation programs for immigrants; and developing the Immigrant Justice Corps, an innovative fellowship program. These initiatives represent some steps towards easing the crisis in immigrant legal representation.

A courtroom has multiple players with different roles, but all would agree that adequate legal repre- sentation of the parties is essential to the fair and effective administration of justice. De½cient repre- sentation frustrates the work of courts and ill serves litigants. All too often, and throughout the country, courts that address immigration matters must con- ROBERT A. KATZMANN, a Fellow tend with such a breakdown in legal representation of the American Academy since –a breakdown of crisis proportions. 2003, is Chief Judge of the United In brief, the nation’s immigrant representation States Court of Appeals for the Sec - problem is twofold: 1) there is a profound lack of rep- ond Circuit. His publications in- resentation, indicated by the fact that more than 40 clude Judging Statutes (forth coming percent of non-citizens in deportation proceedings 2014), Courts and Congress (1997), lack representation nationwide; and 2) in far too In stitutional Disability: The Saga of Transportation Policy for the Disabled many deportation cases, the quality of counsel is sub- (1986), and Regulatory Bu reaucracy: standard. Immigrants are easy prey for unscrupu- The Federal Trade Commission and An- lous law yers, who gouge their clients out of scarce titrust Policy (1980). re sources and provide shoddy legal services. Apart

© 2014 by Robert A. Katzmann doi:10.1162/DAED_a_00286 37 The from the representation problem, there are prove the administration of justice for non- Challenge also issues relating to the functioning of citizens, thereby addressing a grave prob- of Immi- gration the immigration adjudication system it - lem of profound human consequence that Cases self (a subject worthy of its own examina- has tested the federal courts’ ability to ren- for the 1 Courts tion). der justice. I ½rst offer some background My views are shaped by experience as a on the representation issue, and then give judge on the United States Court of Ap - a sense of the activities of the Study Group peals for the Second Circuit, where our on Immigrant Representation, based in workload nearly doubled as a consequence City, which I had the privilege of of an avalanche of immigration cases (rang- creating. ing from thirty-two to forty-eight cases per week at the peak). My perspective is also In the past decade, the number of immi- Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 informed by new research, described be- gration cases–that is, proceedings in low, on immigrants and the impact of rep - which the federal government seeks to de - resentation on case outcomes. I write, I port an individual residing in the United should emphasize, in an individual capac - States–has increased dramatically. These ity, not as an of½cial representative of my cases begin when the Department of Court. In my work on immigrant represen - Homeland Security (dhs) charges a non- tation, I have been guided by Canon 4 of citizen as deportable. The case is then the Code of Conduct for United States heard by an immigration judge in immi- Judges, which encourages judges, to the ex- gration court, based in the Department of tent that their time permits and impartiali- Justice (doj). In adjudicating the matter, ty is not compromised, to contribute to the the immigration judge may conduct a trial- law, the legal system, and the administra- like hearing. The immigrant is entitled to tion of justice. defend him or herself, but because depor- Immigrants are largely a vulnerable pop- tation charges are not criminal, the gov- ulation of human beings who come to this ernment does not provide the immigrant country in the hopes of a better life, often with a lawyer. Because many immigrants entering without knowledge of the En - cannot afford to pay thousands or tens of glish language or American culture, in eco- thousands of dollars to an attorney, a signif - nomic deprivation and in fear. Too often, icant portion of them must go it alone, try- the lack of adequate counsel for immi- ing to navigate our complex immigration grants all but eliminates their hopes to ex - system without the aid of legal counsel. perience the American dream, to live with If either the immigrant or dhs want to their families openly and with security, to challenge the immigration judge’s decision, contribute to their new country.2 This fail- the next step is to appeal to the Board of ure should be a concern for all of us: I think Immigration Appeals (bia), which is an we can all imagine our own ancestors or administrative adjudicatory body within the ancestors of friends and relate to the the doj that oversees the immigration anxieties of today’s newcomers. We are a courts. The party making that appeal must na tion of immigrants, whose contributions explain why the immigration judge’s de - have been vital to who we are and hope cision was legally or factually wrong; for to be. immigrants who may lack education, lan- What follows is a description of my ef- guage skills, and legal training, appealing forts, working with the legal community without the help of counsel is a tall order. both in and outside of government and These cases reach federal courts of ap - philanthropic organizations, to help im - peals like mine if, after the bia decides the

38 Dædalus, the Journal ofthe American Academy of Arts & Sciences case, the immigrant seeks review again. As cases rather than the usual three-member Robert A. before, the party seeking review makes the panels, and permitting single board mem - Katzmann appeal must explain why the bia’s decision bers to decide appeals through summary was legally or factually wrong. There are dismissals and af½rmances without issu- procedural hurdles associated with nav- ing an opinion explaining their reasoning. igating this process, facts to marshal into As bia decisions greatly increased, the evidence, and complexities of law that can number of petitions for review in federal make this process dif½cult for those with- court grew exponentially and began to out legal training. overwhelm our dockets. As my colleague Judge Jon O. Newman put it: “It’s as if a Until the 2000s, immigration cases were dam had built up a massive amount of water over the years, and then suddenly a small percentage of the workload of my Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 court, the Court of Appeals for the Sec- the sluice gates were opened up and the ond Circuit (which encompasses New water poured out.”6 Indeed, by 2005, ap - York, Connecticut, and Vermont). In 1999, pellate courts were receiving about ½ve when I began working as an appellate times as many petitions for review as they judge, the immigration docket was a min - were before 2002. As Judge Walker re - uscule percentage of our workload. But marked: “What we thought was a one- within a few years, that changed dramat- time bubble has turned into a steady flow ically. In 2000, 255,420 cases were initiated of cases,” in excess of 2,500 a year,7 which in immigration courts and 28,104 cases was about a 50 percent increase in our total were appealed to the bia nationwide.3 By annual ½lings.8 Most of these cases were 2012, those numbers had grown signi½ - asylum matters, which involve claims that cantly: 410,753 cases were initiated in im - the individual will be persecuted if he or migration courts and 31,489 cases were ap- she returns to the home country, and there- bia 4 pealed to the . This means that each fore require careful review of often lengthy immigration judge must review nearly rec ords. 1,500 cases each year, which amounts to The vast majority of these appeals are more than ½ve cases each business day. con centrated in two circuits. Half are lo - Consequently, the burdens on all actors in cated in the Ninth Circuit, which covers the im migration system are now extraor- Alaska, Arizona, California, Hawaii, Idaho, dinary and the challenges for any judge, Montana, Nevada, Oregon, Washington, however conscientious, to dispose of all and the territories of Guam and the North- these cases with due care are overwhelm- ern Mariana Islands. Twenty percent are ing. As Chief Judge John M. Walker, Jr., ob- located in the comparatively smaller Sec- served in 2006 in his testimony before the ond Circuit. The massive in crease in the Senate Judiciary Committee: “I fail to see immigration docket of the Second Circuit, how Immigration Judges can be expected which approached 40 per cent of the case- to make thorough and competent ½ndings load of an already busy court, meant that of fact and conclusions of law under these 5 our Court had to develop procedures to circumstances.” manage such cases. This system was de- In order to reduce a backlog of some vised largely by Jon Newman under the 56,000 cases that had accumulated nation- 9 bia chief judgeship of John Walker, contin- ally by 2002, the began disposing of a ued under the chief judgeship of Dennis signi½cant number of the appeals through Jacobs, and continues today. The new sys- stripped-down procedures, such as allow- tem, instituted by the Second Circuit in ing single board members to adjudicate October 2005, added a non-argument

143 (3) Summer 2014 39 The calendar (nac) for immigration cases and presenting legal evidence to the im - Challenge whereby cases are decided on the papers migration judge or bia in a hearing con- of Immi- gration unless any judge on the panel seeks oral ar- text and the skill in advocacy regarding Cases gument. The nac runs parallel to the reg- legal issues and their preservation for ap- for the rac Courts ular argument calendar ( ). In the ½rst peal can make all the difference between year under that procedure, three-judge deportation and the right to remain in panels of our court adjudicated be tween the country. It also means that getting ef- thirty-two and forty-eight nac cases per fective counseling before, not after, applying week, in addition to one or two immigra- for relief or getting immersed in proceed- tion cases per sitting day on the rac. This ings provides the best chance for fleshing review was especially important with re- out the merits of the case, avoiding false or spect to decisions af½rmed by the bia prejudicial ½lings, and securing lawful sta- Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 with out opinion (a practice that has since tus or appropriate relief for the immigrant. largely been curtailed). The Court of Ap- In all too many immigration cases, I peals became effectively the ½rst line of re- could not help but notice a substantial view (however limited) in a system where obstacle to the fair and effective adminis- the immigration judges and the bia are un- tration of justice: the frequently de½cient der extraordinary pressure to resolve cases. counsel of represented non-citizens. For Pursuant to the nac/rac process, the Sec - instance, the briefs of the lawyers too often ond Circuit resolved more than 17,400 im - were boilerplate submissions, with little migration cases between January 1, 2006, attention to the facts of the individual and July 30, 2013, and the immigration case cases: sometimes the briefs were virtually backlog has been essentially eliminated. identical, with only the name changed. At The sheer volume of immigration cases times, the name in the body of the brief gives a sense of the substantial impact on did not even match the name of the im - the work of an appellate court, but more migrant because the lawyer had not both- needs to be said about the task of the judge ered to change the name of the party. Far in those cases and the effects of inadequate too frequently, the lawyers had failed to counsel on the decisional process. As I am keep their client apprised of developments an appellate judge, immigration cases tend in the case, documents the client was re- to come before me in a legally circum- quired to ½le, and even hearing dates that scribed context. An appellate judge’s role their client was obligated to attend (but is to review the administrative record and missed because of the lawyer’s lapse). decision; absent legal error or lack of sub - stantial evidence supporting the decision, For immigrants, the stakes could not be the Court is largely constrained to defer to higher: these cases determine whether the agency’s ruling. Therefore, the record they can remain in the country or whether made by the immigrant and the legal they will be separated from their loved points preserved therein for review are crit - ones–often including their children–and ical to the outcome, especially where the barred from returning for many years. I immigrant has the burden of coming for- often had the feeling that if only the im - ward with evidence and the burden of migrant had competent counsel at the very proof of entitlement to status or relief. beginning of immigration proceedings Even if an appellate judge would have ruled (where the record is made with lasting differently in the ½rst instance, he or she im pact) long before the case reached the has no authority to do so on appeal. Thus, court of appeals (where review is limited) quality legal representation in gathering the result might have been different, and

40 Dædalus, the Journal ofthe American Academy of Arts & Sciences the non-citizen might have secured relief the large–and largely unmet–legal needs Robert A. that would have allowed her or him to re - in non-citizen communities. I stated there Katzmann main in the United States. what I reiterate here: justice should not The importance of quality representa- depend upon the income level of immi- tion is especially acute for immigrants, not grants.15 A lawyer’s duty to serve those only because they stand to lose what Jus- unable to pay is not an act of charity or tice Brandeis described as “all that makes benevolence, but rather one of professional life worth living,”10 but also because there responsibility, reinforced by the terms un - is a wide disparity in the success rate of der which the state has granted to the le - those who have lawyers and those who gal profession effective control of the legal proceed without counsel. For example, system. sev eral studies have shown that asylum When I gave the Marden Lecture, I was Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 seekers are much more likely to be granted not sure what the response would be, but asylum when they are represented in im- the reaction was, and has continued to migration proceedings.11 These ½ndings be, incredibly supportive. In 2008, I started are particularly noteworthy because they a working group, the Study Group on Im- do not even take into account the varying migrant Representation, with the counsel quality of representation that asylum seek- of several outstanding lawyers. The Study ers receive. While differences in success Group is made up of some seventy-½ve law- rates do not by themselves tell us about yers from a range of ½rms; nonpro½ts; bar causation, these data make the uncomfort- organizations; immigrant legal service able suggestion that outcomes can be af - providers; immigrant organizations; law fected by whether the immigrant can af - schools; federal, state, and local govern- ford a lawyer or has the ability to access ments; and judicial colleagues. It has been free legal services. Immigrants can secure an honor to work with lawyers so devoted their own legal representation in immi- to helping those in need and it has been gration proceedings, but generally “at no wonderful to see their eagerness in a city expense to the Government.”12 For immi- where over one-third of our community grants with limited means, the dif½culty is foreign-born.16 Study Group work has of securing legal representation may be focused on three areas: 1) increasing pro compounded by regulations forbidding bono activity of ½rms, especially at the out- them from working during the initial pen- set of immigration proceedings; 2) improv - dency of their claims, thus depriving them ing mechanisms of legal service delivery; of the capacity to earn money to hire a law - and 3) rooting out inadequate counsel and yer.13 improving the quality of representation Hoping to raise awareness and to effect available to non-citizens. Our diverse change, I took the occasion of the 2007 group gathers together in the early morn- Marden Lecture of the Bar14 ings at the courthouse in downtown New to challenge the New York legal establish- York City to share ideas, collaborate on ini - ment and others interacting with that es - tiatives, and help think through solutions tablishment (law ½rms, bar associations, to challenges to immigration represen - nonpro½ts, corporate counsel, founda- tation. The industriousness, intelligence, tions, law schools, state and local govern- follow-through, and accomplishment of ment, the media, the immigration bar, se - group participants have been remarkable nior lawyers and retirees, providers of con- and exciting. I have been inspired by the tinuing education and training, and think range of the Study Group’s activities and tanks) to increase efforts to help address how its members (even those who might

143 (3) Summer 2014 41 The be adversaries in court) come together young lawyers and senior lawyers of re- Challenge around the core value we all share: safe- tirement age, as well as trained college of Immi- gration guarding the integrity, fairness, and ef½ - graduates, to provide pro bono legal Cases ciency of our system of justice–which de- ser vices to immigrants for two to three for the Courts pends on adequate and effective counsel. years. Our method is to bring together key • We have partnered with bar organiza- participants from the federal, state, and tions to recruit more pro bono lawyers. city governments, the private bar, bar as- For example, the Second Circuit recently sociations, nonpro½ts, legal service pro - sought to facilitate representation for in - viders, immigrant organizations, philan- dividuals possibly eligible for relief pur - thropies, and law schools to foster the fair suant to recommendations by the De- and effective administration of justice. partment of Justice. The Federal Bar Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 This interdisciplinary approach has been Coun cil’s Public Service Committee, fruitful and energizing; we have produced chaired by Study Group member Lewis reports, pilot projects, colloquia, and train- Liman, gathered and trained a cadre of ing sessions. Justice Ginsburg and Justice lawyers who offered pro bono represen- Stevens have publicly praised our project, tation to ½fteen to twenty immigrants and Justice Breyer and Justice Sotomayor who could not afford counsel. have also offered encouragement.17 Our Study Group concept is serving as a model • Working with other organizations, we for other jurisdictions, such as New Jersey, devised training sessions for deferred seeking to ½nd ways to provide adequate law ½rm associates so that they could counsel for immigrants. spend their deferral years representing Over the past ½ve years, Study Group immigrants. Young lawyers would thus work has included numerous initiatives: enter law ½rm practice with an under- standing of immigration law and a com - Data-Driven Study: mitment to immigration pro bono cases.

• The New York Immigrant Representa- • We created a pilot project to foster greater tion Study, a foundational Study Group law ½rm pro bono activity.18 The hope initiative, began in 2010. We hoped to is that this two-year fellowship program document the areas of the most urgent will challenge the private bar to take on representational needs of indigent non- more pro bono asylum cases, as well as citizens facing removal in New York, increase ½rms’ ability to do so by creat- with the eventual goal of advancing rec- ing a greater capacity to screen potential ommendations about necessary re- clients, conduct intake interviews, place sources and strategies. Our ½ndings new pro bono cases with law ½rms, and about the scope of the need were pub- mentor the attorneys in those cases. This lished in 2011, and were followed by a pilot project could serve as a model for report in 2012 that set forth a solution an expanded program and encourage ac- to address this need: the creation of a tion by other foundations and ½rms. sys tem of institutionally provided coun - Facilitating Collaboration: sel for those facing deportation. • We have promoted the creation of law Increasing Pro Bono Representation: school clinics, the leading example being • One of our most recent initiatives, the the Kathryn O. Greenberg Immigration Immigrant Justice Corps, is a fellowship Justice Clinic at the Benjamin N. Car- program I proposed, which enables dozo School of Law. The Cardozo Law

42 Dædalus, the Journal ofthe American Academy of Arts & Sciences clinic has been so successful that it has Although much more could be said about Robert A. recently received signi½cant multi-year each of these initiatives,22 I will now fo - Katzmann funding from our philanthropic part- cus on two in particular that have signi½ - ners for its work. cant potential to influence the system of immigration adjudication in the United • We worked with Attorney General Eric Holder, Senator Charles Schumer, and States. others in addressing the immigrant rep- resentation problem; and in 2010, the At - The ½rst of these is the New York Immi- nyirs 23 torney General announced the creation grant Representation Study ( ). In of a Legal Orientation Program in New the immigration law ½eld, it was a com- York, which gives not-for-pro½t pro - mon refrain that having an attorney makes

viders greater opportunities to advise a signi½cant difference for people who risk Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 immigrants in groups and individually. being deported. But, as my great mentor Senator said, • Study Group members have joined with “You’re entitled to your own opinion, but state, local, and federal government to not to your own facts.” In that spirit, I be - examine how consumer law could be lieved that the Study Group needed to as - used to attack the problem of fraudu- semble comprehensive data so that the lent legal services. problem could be better de½ned and ad- • In 2011, in response to federal efforts to dressed. To that end, Study Group mem- address immigration fraud, the Study bers undertook the nyirs, which was Group, together with the American Im - chaired by Professor Peter Markowitz of migration Lawyers Association and oth - Cardozo Law, Professor Stacy Caplow of er organizations, sponsored two days of Brooklyn Law School, and attorney Claudia intensive training in immigration law Slovinsky. The study, conducted with the for non-immigration lawyers. support of the Leon Levy Foundation and

• Recognizing the substantial unmet needs the Governance Institute, was a two-year in upstate New York,19 Study Group project in collaboration with the Vera In - members have supported the work of stitute of Justice. The two reports that were Albany Law School and Prisoners’ Le - issued as a prod uct of that study provide, gal Services of New York in their joint for the ½rst time ever, comprehensive data project to provide pro bono representa- about the scope of the immigrant represen- tion at the Ulster, New York Immigration tation challenge in New York (published in Court. the 2011 report) and a plan for addressing it (published in the 2012 report).24 Below Publications and Events: are a few ½ndings from the 2011 report that

• We have organized two major confer- most strikingly show the depth of the ences, one at Fordham Law School and prob lem: one at Cardozo Law (the latter with re - • A signi½cant percentage of immigrants tired Justice John Paul Stevens), which appearing before the New York immigra- led to a series of studies and reports tion courts do not have representation. published in the Fordham Law Review and  60 percent of immigrants who were Cardozo Law Review.20 Reporting in The detained during the pendency of New York Times, the New York Law Journal, their deportation proceedings did not and El Diario has brought our activities have counsel by the time their cases to the attention of a larger audience.21 were completed.

143 (3) Summer 2014 43 The  27 percent of immigrants who were not  Unrepresented but released or never Challenge detained during the pendency of their detained: 13 percent have successful of Immi- gration deportation proceedings did not have outcomes. Cases counsel by the time their cases were  Represented but detained: 18 per- for the Courts completed. cent have successful outcomes.

 According to the providers surveyed,  Unrepresented and detained: 3 per- cases in which non-citizens are held in cent have successful outcomes. detention during the deportation pro- It is clear from the data that having a law - ceedings were least served by exist- yer makes a substantial difference. But the ing immigration attorneys, particularly report also found that de½cient perfor- non-pro½t or pro bono resources. mance by lawyers providing deportation- Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 • The dhs’s detention and transfer poli- defense services create more problems for cies have created signi½cant obstacles for non-citizens facing deportation. In its sur - immigrants facing removal to obtain vey, New York immigration judges rated counsel. nearly half of all legal representatives as inadequate in terms of overall perfor-  dhs transferred almost two-thirds (64 percent) of those detained in New mance, meaning that the attorneys did not York to far-off detention centers (most investigate the case, could not respond to frequently in Louisiana, Pennsylvania, questions about the facts or the law, did and Texas) where they faced the great - not meet deadlines to ½le documents, and est obstacles to obtaining counsel, a sometimes even failed to appear in court. practice which subsided when dhs The study also showed that the two changed its detainee transfer policy greatest impediments to increasing the in 2012.25 availability and quality of legal services for immigrants are a lack of funding and a  Individuals who were transferred else- lack of resources to build a quali½ed core where and who remain detained out- of experienced attorneys who can provide side of New York were unrepresented deportation defense. These dramatic ½nd- 79 percent of the time. ings underscore the immensity of the task • The two most important variables af- before us and help us understand where fecting the ability to secure a successful to focus resources most immediately. outcome in a case (de½ned as relief or The second part of the New York Immi- termination) are having representation grant Representation Study, released in and being free from detention. November 2012, was devoted to develop- ing concrete proposals to address the immi-  The absence of either factor in a case– 26 being detained but represented or grant representation crisis in New York. being unrepresented but not detained The study’s steering committee (a group of experts from diverse legal institutions) was –decreases the success rate dramati- nyirs cally. When immigrants are detained tasked with using the data from ’s and unrepresented, the rate of success- ½rst report and other available information ful outcomes decreases even more sub- to make realistic short- to medium-term stantially. The success rates are as fol- proposals. The committee set forth a blue - lows: print for a system whereby a small group of competitively selected pro viders would  Represented and released or never deliver public defender–type universal detained: 74 percent have success- rep resentation to indigent de tain ees fac- ful outcomes. ing deportation.

44 Dædalus, the Journal ofthe American Academy of Arts & Sciences The project they proposed would en - for immigrants.28 Since then, our group Robert A. sure universal representation, with screen- has been contacted by organizations across Katzmann ing for income eligibility only; as well as the coun try interested in implementing providing basic support services such as our model in other cities and states. translation and interpretation services, social work, and mental health services. It Another major initiative of the Study would also be implemented through ex - Group is a project I proposed called the Im- isting institutional providers to minimize migrant Justice Corps (ijc), launched in administrative complexities and would January 2014 with substantial planning, work in cooperation with other key insti- support, and initial funding from the Rob in tutional actors such as dhs and the im - Hood Foundation and subsequent addi- migration court system. Finally, it would jpb 29 tional funding from the Foundation. Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 be overseen by an organization that could The ijc is the nation’s ½rst fellowship pro - provide centralized oversight and project gram dedicated to meeting the need for management, and would derive its fund- legal assistance for immigrants seeking cit- ing primarily or signi½cantly from a reli- izenship and ½ghting deportation.30 The able public revenue stream. ijc concept is based on the supposition that This model, created by the nyirs steer- the need for effective counsel for immi- ing committee, became the basis for a pi - grants will only increase in the years ahead. lot project of deportation defense in New If there is comprehensive immigration leg- York City, called the New York Immigrant islation, the imperative of having an ex- Family Unity Project. When fully funded, panded pool of quality counsel will be this effort will provide representation to greater because virtually every person eli- approximately 2,750 New Yorkers each gible for relief will need legal assistance. year who face exile from their homes and Moreover, to the ex tent that the executive families. It would increase the likelihood of branch exercises greater discretion about keeping these New York families togeth- whether or not to pursue a case at the out- er by as much as 500 percent, and provide set of its immigration deliberations, there a general roadmap for how communities will be a greater need for lawyers to provide like New York can address critical problems advice to non-citizens. Fiscal circum- in our immigration system. With this in stances are tight, and adequate public sup- mind, Study Group members brought to - port for counsel will be dif½cult to realize gether a community of relevant actors to on a national lev el; in that climate, the fair make this system a reality and achieved a and effective administration of justice will major milestone in June of 2013. In a his- depend on broad thinking about how to toric action that af½rmed governmental supplement whatever resources may be com mitment to fund legal ser vices for available to provide counsel to non-citi- immigration, the City Council of New York zens possibly eligible for relief. To that end, City announced funding of $500,000 for I urged the creation of the ijc,31 which the New York Family Unity Project, “the unites re cently minted and senior lawyers nation’s ½rst assigned counsel system for in a com mon cause across the generations. immigrants.”27 Christine Quinn, then- It al lows young lawyers at the outset of speaker of the New York City Council, ac- their careers to do something signi½cant knowledged the work of the Study Group for themselves and for those in need, and in devising the New York Family Unity se nior lawyers, eager to share their expe- Project and called for other such collabo- rience, to give back to the system that has rative efforts to ensure access to counsel supported them. The ijc also includes

143 (3) Summer 2014 45 The young college graduates, who will be By populating the ½eld of immigration Challenge trained in immigration law and work es - law with a cadre of dedicated lawyers, the of Immi- gration sentially as paralegals in support of com- ijc will change the immigrant represen- Cases munity based organizations. tation arena in much-needed ways. It will for the ijc Courts The proposal borrows from other create leadership for the next generation fellowship program models that call to help meet the legal and policy challenges young people to public service, such as in the years ahead. It will also summon Teach for America, the Peace Corps, and lawyers to serve the noblest purposes of Americorps, as well as such private law fel- the law: to assist those in dire straits and lowship programs as Equal Justice Works, in this way address a national problem. the Liman Program, and the Skadden For young lawyers, the experience will have Foundation. Through a selection process, a lasting impact on their careers since they Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 lawyers are chosen to participate in a two- will experience how human beings bene½t to three-year program and trained–with from their counsel and how families in the aid of nonpro½ts and law school clinics danger of being torn apart can stay to - –in a boot camp of intensive courses on gether. Some ijc lawyers will stay in the immigration law. ijc lawyers are then nonpro½t world, while others who decide placed with local immigrant service pro- to enter private practice or work in gov- viders and provide legal counsel to non- ernment may become advocates for their citizens in immigration proceedings. ½rms’ in creasing pro bono involvement. The project is funded through philan- They will also be leaders of individual phil- thropy, and over time, we expect a mix of anthropic giving as their careers progress. philanthropy and government support. They will contribute to public policy dis- One great virtue of the project is its ad - cussions with sophistication in the years ministrative simplicity. As the ijc expands ahead; and their own experience will add from New York to a national effort, the to a body of knowledge that will enrich fu- ijc will be administered through an inde- ture research and analysis. pendent 501(c)(3). For senior lawyers, who often have few This program has many bene½ts. Pri- outlets to direct their energies and skills, marily, of course, it makes a fundamental the ijc will provide opportunities to serve difference in the lives of immigrants and the public good in the face of un wanted their families. The ijc’s very existence retirement. As a consequence of their ijc raises awareness of the crisis of represen- experiences, both recently minted and se- tation and encourages efforts to meet that nior lawyers could provide insight about crisis. It facilitates the resolution of cases approaches to ensure greater access to jus- and promotes the fair and effective admin - tice, not only through individual represen- istration of justice, thereby aiding already tation but also through systemic innova- busy courts. As a model of ef½cient legal- tion. Most important, as I have said, the services delivery, the ijc could stimulate ijc could make all the dif ference to those public funding streams for other projects, without resources, those who seek to re- such as the New York Immigrant Family alize the American dream and contribute Unity Project. For law schools, the ijc pro- to this nation’s vitality. vides new ways of thinking about how to To date, the concept has received sup- provide legal services while at the same port from a variety of sectors, including time enhancing job prospects for gradu- some top New York City of½cials. Then- ates at a time when the law market is tight- mayor Michael Bloomberg, for instance, ening. convened a session of foundations urging

46 Dædalus, the Journal ofthe American Academy of Arts & Sciences their involvement.32 Foundations, such as forcement priorities, refrain from initiat- Robert A. Robin Hood and the jpb Foundation, have ing deportation actions against certain Katzmann been generous with support. Law schools non-citizens who have contributed to the have been very encouraging as well.33 Law community; who have ties, including fa- ½rms have expressed interest in sponsor- milial relationships, to the community; ing ijc fellows, and American Bar Associ- and who are not threats to public safety. ation President James Silkenat convened a Internal reforms within the dhs and doj meeting in New York of leading lawyers to can also bear upon the adjudication of im- draw attention to the program. migration matters. But whatever the fu - ture number of cases, the stakes for those The volume of immigration cases before facing deportation are high and the dire need for quality representation will not a court is largely beyond the judiciary’s Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 control.34 The litigation docket will be change. All of us involved in the adminis- affected by congressional action and by the tration of justice have a responsibility to way the executive branch sets enforcement seek to ensure its fairness and effective- priorities. This may determine, for exam- ness. In that effort, I welcome the opportu- ple, whether dhs will exercise greater dis - nity to collaborate further with colleagues cretion and, consistent with its stated en - both within and outside of government.

endnotes 1 See, for example, Lenni B. Benson and Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration and Removal Adjudication, http://www.acus.gov/sites/default/½les/documents/ Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-½nal-June -72012.pdf (accessed May 12, 2014); Russell R. Wheeler, “Practical Impediments to Structural Reform and the Promise of Third Branch and Analytical Methods: A Reply to Professors Baum and Legomsky,” Duke Law Journal 59 (2010): 1847–1882; and Commission on Immigration and Arnold & Porter, llp, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Ef½ciency, and Professionalism in the Adjudication of Removal Cases (Washington, D.C.: American Bar Association, 2010), http://www.americanbar .org/content/dam/aba/migrated/Immigration/PublicDocuments/aba_complete_full_report .authcheckdam.pdf. 2 On the impact of immigrants’ legal and socioeconomic status on their children, see Hirokazu Yoshikawa, Immigrants Raising Citizens: Undocumented Parents and Their Young Children (New York: Russell Sage Founda tion, 2012). 3 Of½ce of Analysis and Planning for the Executive Of½ce for Immigration Review, Statistical Yearbook 2001 (Falls Church, Va..: Department of Justice, 2002), A-1, E-1. 4 Of½ce of Analysis and Planning for the Executive Of½ce for Immigration Review, Statistical Yearbook 2012 (Falls Church, Va.: Department of Justice, 2013), A-1, S-1. 5 See statement of the Honorable John M. Walker, Jr., United States Court of Appeals for the Sec - ond Circuit, Immigration Litigation Reduction?: Hearings Before the Senate Committee on the Judici- ary, 109th Cong. 6 (2006). Although very substantial challenges remain within the immigra- tion adjudication system, there have been improvements in recent years. There has been some increase in resources, though the need is still vast. There are far more precedential opinions by the bia, which aid the federal courts in their deliberations. Largely gone are single-member bia decisions, and, as I indicated above, the bia no longer issues summary af½rmances. 6 Libby Lewis, “Appeals Courts Flooded with Immigration Cases,” All Things Considered, National Public Radio, November 19, 2004, http://www.npr.org/templates/story/story.php ?storyId=4179087.

143 (3) Summer 2014 47 The 7 See statement of the Honorable John M. Walker, Jr., United States Court of Appeals for the Challenge Second Circuit, Immigration Litigation Reduction?: Hearings Before the Senate Committee on the of Immi- Ju diciary, 109th Cong. 5 (2006). gration Cases 8 Administrative Of½ce of the United States Courts, Federal Judicial Caseload Statistics March for the 31, 2005, Table B1. Courts 9 Judge Jon O. Newman, “The Second Circuit’s Expedited Adjudication of Asylum Cases: A Case Study of a Judicial Response to an Unprecedented Problem of Caseload Management,” Brooklyn Law Review 74 (2008): 429. 10 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). 11 Donald M. Kerwin, “Revisiting the Need for Appointed Counsel,” Insight (4) (April 2005): 1–6, http://www.migrationpolicy.org/insight/Insight_Kerwin.pdf. In political asylum cases, 39 percent of nondetained, represented asylum seekers received political asylum, compared with 14 percent of nondetained, unrepresented asylum seekers. Of all detained, represented asylum Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 seekers, 18 percent received asylum; compared with 3 percent of detained, unrepresented asylum seekers. See ibid; United States Commission on International Religious Freedom, Asy- lum Seekers in Expedited Removal, http://www.uscirf.gov/images/stories/pdf/asylum_ seekers/execsum.pdf (accessed May 12, 2014); and Andrew I. Schoenholtz and Jonathan Jacobs, “The State of Asylum Representation: Ideas for Change,” Georgetown Immigration Law Journal 16 (2002): 739–740. 12 Immigration and Nationality Act, 8 U.S.C. sec. 1362 (2012). 13 Code of Federal Regulations, Title 8, sec. 208.7(a) (2004). “[A]sylum seekers–who by de½nition have fled from their homes and, as a result, their means of income–generally cannot pay for legal representation.” See also Eleanor Acer, “Making a Difference: A Legacy of Pro Bono Rep- resentation,” Journal of Refugee Studies 17 (2004): 349; and Schoenholtz and Jacobs, “Asylum Representation,” 747. 14 Robert A. Katzmann, “Orison S. Marden Lecture: The Legal Profession and the Unmet Needs of the Immigrant Poor,” The Record of the Association of the Bar of the City of New York 62 (2) (2007): 287–311. A slightly revised version with footnotes can be found in Robert A. Katzmann, “The Marden Lecture: The Legal Profession and the Unmet Needs of the Immigrant Poor,” Georgetown Journal of Legal Ethics 21 (2008): 3–20. 15 Katzmann, “The Marden Lecture,” 20. 16 We have been guided by an outstanding steering committee, including: Jojo Annobil of Legal Aid, Immigration Judge Noel Brennan, Judge Denny Chin, Peter Cobb, Peter Eikenberry, Philip Graham, Robert Juceam, William Kuntz (then in private practice and now District Judge for the Eastern District of New York), Lewis Liman, Peter Markowitz, Liman Fellow Lindsay Nash, Michael Patrick, Careen Shannon, and Claudia Slovinsky. 17 Pro Bono Institute, “Words of Wisdom,” The Pro Bono Wire, http://pbi.informz.net/admin31/ content/template.asp?sid=15374&brandid=4063&uid=1012842200&mi=1465561&ptid=1053 (accessed May 12, 2014); and Tony Mauro, “Sotomayor: Lack of Diversity on Bench is ‘Huge Danger,’” Legal Intelligencer, November 21, 2013, http://www.thelegalintelligencer.com/id= 1202629016315/Sotomayor:-Lack-of-Diversity-on-Bench-Is-’Huge-Danger’?slreturn= 20140311124034 (accessed April 11, 2014). 18 A grant from the Leon Levy Foundation provides funding for the nonpro½t Human Rights First to work with pro bono lawyers from ½rms on asylum cases. Lori Adams and Alida Y. Lasker, “The Asylum Representation Project & Leon Levy Fellowship at Human Rights First: An Innovative Partnership to Increase Pro Bono Representation to Indigent Asylum Seekers,” Car- dozo Law Review 33 (2011): 417–436, http://www.cardozolawreview.com/content/33-2/Adams _Lasker.33-2.pdf. In this pilot effort, the Federal Bar Council Public Service Committee (with appreciation to Jamie Levitt, Alida Lasker, and Lewis Liman) has secured the commitment of Cleary Gottlieb, Sullivan & Cromwell, Fried Frank, Morrison & Foerster, and Wilmer Hale

48 Dædalus, the Journal ofthe American Academy of Arts & Sciences to assist with the screening of potential asylum clients at the New York Immigration Court, Robert A. and to have those law ½rms take asylum cases pro bono. Katzmann 19 Denny Chin, “Representation of the Immigrant Poor: Upstate New York,” Cardozo Law Review 33 (2011): 351–356. 20 The Robert L. Levine Distinguished Lecture with articles, reports, and commentaries of the Study Group, Fordham Law Review 78 (2) (2009): 453–640, http://law.fordham.edu/fordham -law-review/15905.htm; Mark Hamblett, “Lawyers Target ‘Assembly Line’ Practice, Abuse of Poor Immigrants,” New York Law Journal, January 4, 2010, 1, http://www.law.com/jsp/nylj/ PubArticleNY.jsp?id=1202437343741&hbxlogin=1; and “Symposium, Innovative Approaches to Immigrant Representation: Exploring New Partnerships,” Cardozo Law Review 33 (2011): 331–490, http://www.cardozolawreview.com/index.php?option=com_content&view=article &id=188&Itemid=7. 21 See Nina Bernstein, “In a City of Lawyers, Many Immigrants Fighting Deportation Go It Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 Alone,” The New York Times, March 13, 2009, http://www.nytimes.com/2009/03/13/nyregion/ 13immigration.html; Sam Dolnick, “As Barriers to Lawyers Persist, Immigrant Advocates Ponder Solutions,” The New York Times, May 4, 2011, http://www.nytimes.com/2011/05/04/ nyregion/barriers-to-lawyers-persist-for-immigrants.html; Kirk Semple, “In A Study, Judges Express a Bleak View of Lawyers Representing Indigents,” The New York Times, December 19, 2011; “For Want of a Good Lawyer: Deportation Without Representation,” The New York Times, December 24, 2011, http://www.nytimes.com/2011/12/25/opinion/sunday/deportation -without-representation.html; Kirk Semple, “Plan Would Add Lawyers to Fight Deportation Cases,” The New York Times, November 27, 2012, http://www.nytimes.com/2012/11/28/ nyregion/plan-would-add-lawyers-to-contest-deportation-cases.html?_r=0; Hamblett, “Abuse of Poor Immigrants,” 1; Mark Hamblett, “Study, Forum Stress Plight of New York’s Unrep- resented Immigrants,” New York Law Journal, May 6, 2011, http://www.law.com/jsp/law/ international/LawArticleFriendlyIntl.jsp?id=1202493130604; and Mark Hamblett, “Summit Participants Discuss Effort to Find Competent Lawyers for Poor N.Y. Immigrants,” New York Law Journal, January 30, 2012, http://www.newyorklawjournal.com/PubArticleFriendlyNY .jsp?id=1202540386731&slreturn=1. 22 To learn more about our Study Group activities, you may download our Fordham and Cardozo symposia and reports, contact the Study Group ([email protected]) or the Federal Bar Council Public Service Committee, or contact the organizations featured in our materials, who are all doing excellent work. 23 nyirs Steering Committee, “Accessing Justice I: The Availability and Adequacy of Counsel in Removal Proceedings (New York Immigrant Representation Study Report: Part 1),” Cardozo Law Review 33 (2011): 357–416, http://www.cardozolawreview.com/content/denovo/NYIRS_ Report.pdf. 24 nyirs Steering Committee, “Accessing Justice I”; and nyirs Steering Committee, “Ac- cessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Pro- ceedings (2012),” http://www.cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf. 25 U.S. Immigration and Customs Enforcement, Policy 11022.1: Detainee Transfers, January 4, 2012, http://www.ice.gov/doclib/detention-reform/pdf/hd-detainee-transfers.pdf. 26 nyirs Steering Committee, “Accessing Justice II.” 27 As Peter Markowitz put it: “The nyc Council and Speaker [Christine] Quinn should be ap - plauded for creating the nation’s ½rst assigned counsel system for immigrants.” Speaker Christine Quinn, “Council Members & Immigrant Rights Groups Announce Pilot Program Pro- viding Legal Counsel For Immigrants Facing Deportation,” 2013, http://council.nyc.gov/html/ pr/071913nyifup.shtml (accessed May 12, 2014). 28 Then-speaker Quinn remarked: “I want to thank Judge Robert Katzmann and the New York Immigrant Family Unity Project for all their work on the issue.” See Christine Quinn, “Pilot Program Announcement.”

143 (3) Summer 2014 49 The 29Kirk Semple, “Seeking Better Legal Help for Immigrants,” The New York Times, January 28, 2014, Challenge http://www.nytimes.com/2014/01/29/nyregion/service-program-will-recruit-law-school of Immi- -graduates-to-help-represent-immigrants.html?_r=0. gration Cases 30 The Immigrant Justice Corps website is at www.justicecorps.org. for the 31 Courts Kirk Semple, “Judge Proposes a National Lawyer Corps to Help Immigrants,” City Room, The New York Times, March 19, 2013, http://cityroom.blogs.nytimes.com/2013/03/19/judge -proposes-a-national-lawyers-corps-to-help-immigrants/. 32 In an October 2009 report, the Bloomberg Administration committed to support the training of lawyers who would represent immigrants, stating that “[t]he City will commit $2 million to the effort to cover a team of supervising attorneys and on-going training of associates and technical assistance in the area of immigration law.” See Michael Bloomberg, “Immigrants: The Lifeblood of New York City,” aila InfoNet (2009), 3, http://www.aila.org/content/default

.aspx?docid=30284. Downloaded from http://direct.mit.edu/daed/article-pdf/143/3/37/1830445/daed_a_00286.pdf by guest on 27 September 2021 In an October, 2009 speech, then-mayor Michael Bloomberg committed to “creat[ing] a $2 mil- lion fund to deploy these lawyers to community organizations with high concentrations of im migrants–and we’ll give them the support they need to help more families get a fair shake of the justice system . . . and stay here in our City.” He also emphasized the need to keep fam ilies uni½ed and said that “the stakes are too high” not to provide adequate representa- tion to immigrants. Finally, he personally thanked me and Chung-Wha Hong, director of the New York Immigration Coalition, for the idea, calling it “an example of how we can turn the national economic downturn to our advantage–if we think innovatively and act boldly.” See Michael Bloomberg, “Speech at City University of New York Graduate Center,” New York, New York, October 8, 2009. In November 2011, Mayor Bloomberg, Deputy Mayor for Legal Affairs Carol Robles-Roman, Chief Policy Adviser John Feinblatt, Commissioner of the Mayor’s Of½ce to Combat Domestic Violence Yolanda Jimenez, and Commissioner of the Mayor’s Of½ce of Immigrant Affairs Fatima Shama announced a new program that would add thirteen additional full-time attor- neys to the city’s ten indigent criminal defense providers, as well as provide counseling to immigrant domestic violence victims. See News from the Blue Room, “Mayor Bloomberg, Deputy Mayor Robles-Roman and Chief Policy Advisor John Feinblatt Announce Expansion of Legal Services for Immigrants,” Press Release, November 21, 2011, http://www.nyc.gov/ html/om/html/2011b/pr419-11.html. 33 I especially acknowledge the counsel and active involvement and encouragement of then–nyu School of Law Dean Ricky Revesz. 34 The Second Circuit, in the interest of judicial economy and in order to prioritize its docket, decided to toll all immigration cases for ninety days to allow petitioners and dhs to determine whether there would be an exercise of prosecutorial discretion, noting that the court currently had a thousand immigration cases pending. The Court established a procedure for how the appellate process for pending immigration cases could either proceed or allow the case to be remanded to the bia for a grant of prosecutorial discretion. See In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit, 702 F.3d 160 (2d Cir. 2012). As a consequence, the government exercised discretion in 928 cases in the period from January 1, 2013, to August 15, 2013.

50 Dædalus, the Journal ofthe American Academy of Arts & Sciences