June 17, 2019: NYSBA Urges Legislature and Governor to Establish A First-In-The-Nation Statutory Right to Counsel in New York Immigration Proceedings

June 17, 2019: NYSBA Urges Legislature and Governor to Establish A First-In-The-Nation Statutory Right to Counsel in New York Immigration Proceedings

6.17.2019

By Communications Department

The New York State Bar Association’s (NYSBA) House of Delegates approved a resolution urging the Governor and state Legislature to establish a right to counsel in immigration proceedings as a statutory requirement under New York law.

The measure, which was adopted at NYSBA’s House of Delegates meeting June 15 in Cooperstown, comes as research has shown great disparities in the outcomes of immigration cases for those who do and do not have legal representation. If passed into law, New York would become the first state in the nation to grant such a right.

“We have long supported equal access to justice and courts of law for immigrants residing in New York State,” said NYSBA President Hank Greenberg. “Recent policies and immigration enforcement trends have increased removal risks to immigrant New Yorkers and our immigration court backlogs have reached historical highs.

“We must ensure for immigrants due process and that the principles of fundamental fairness are observed in any judicial setting in which they appear,” Greenberg added.

The resolution and report from NYSBA’s Committee on Immigration Representation was presented by its co-chairs, Camille Mackler, director of immigration legal policy at the New York Immigration Coalition, and Sarah F. Rogerson, director of the Immigration Law Clinic at Albany Law School.

The resolution also supports the American Bar Association’s position that there should be a federally funded system of appointed counsel for indigent respondents in removal proceedings but urges the New York State Legislature to act in the meantime, in light of the significance of the rights and principles involved.

According to the report, New York’s immigration court backlog has more than doubled, from just over 47,000 in 2012 to over 110,000 in the first quarter of 2019. At the same time, Immigration and Customs Enforcement (ICE) arrests and deportations in New York have far surpassed the national averages, with a 35 percent jump in arrests from 2017 to 2018, compared to 11 percent nationally, and a 29 percent increase in deportations, more than double the 13 percent national increase.

Many of these arrests have come while New Yorkers sought access to justice in other areas. The Immigrant Defense Project reports that ICE conducted at least 178 arrests in New York’s courthouses in 2018, compared to 159 in 2017 and 11 in 2016.

A study by the American Immigration Council showed the disparity in outcomes for immigrants who do and do not have an attorney. Of those that filed applications for relief from removal, 78 percent of never-detained represented immigrants won their case as opposed to just 15 percent of never-detained unrepresented immigrants. Further, 32 percent of detained represented immigrants won their case compared to just 3 percent of unrepresented detained immigrants.

In New York, the first round of assessment of the New York Immigrant Family Unity Project (NYIFUP), the pioneering public defender model for detained immigrants that started in New York City in 2013, shows that access to lawyers has resulted in a 48 percent success rate for detained New Yorkers, compared to just 4 percent pre-NYIFUP. This represents a 1,100 percent increase in detained individuals’ chances of winning their cases before an immigration judge.

The report also describes the specific challenges each area of the state faces in accessing immigration representation, including New York City, Long Island, the Capital Region, Western and Central New York and the North Country.

In addition to calling on New York State to create the first statutory right to counsel in immigration proceedings, NYSBA’s Committee on Immigration Representation recommended and was granted the opportunity to prepare an updated in-depth report on the immigration legal services field that will examine current challenges and make specific recommendations for defining and achieving universal representation. Upon completion, the report would be presented to NYSBA’s House of Delegates.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Christian Nolan 
cnolan@nysba.org
518-487-5536