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A Right to Attorney: NYC Looks at a Possible Fix for the Immigration Court Crisis

A misdemeanor conviction for shoplifting, though unlikely to prompt incarceration, can nevertheless trigger mandatory deportation: dividing families, disrupting communities and preventing people otherwise eligible from seeking asylum.
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Everyone in the United States has the right to an attorney in criminal court. The same is not true in immigration deportation proceedings -- which are administrative in nature, rather than criminal. This strange gap in the law leaves hundreds of thousands of people on their own to defend against removal by the Department of Homeland Security, a complex and confusing legal procedure frequently conducted in a language the respondents do not understand.

Noncitizens convicted of crimes often face consequences more severe than those demanded by the criminal penalties associated with their charge. A misdemeanor conviction for shoplifting, though unlikely to prompt incarceration, can nevertheless trigger mandatory deportation: dividing families, disrupting communities and preventing people otherwise eligible from seeking asylum. This result is especially troubling in cases where the person may be persecuted or killed for religious or political reasons in their country of origin. Like undocumented immigrants, legal permanent residents are similarly at risk of deportation through this process.

The Vera Institute recently analyzed the 71,767 cases lodged in New York State Immigration Courts between October 2005 and July 2010. They found that 60 percent of detained immigrants did not have an attorney by the time their case was completed. Among the barriers to finding representation are prohibitive costs, high bail rates -- often around $10,000 even for minor offenses -- and the transfer of detainees to far-away locales such as Texas, Louisiana and Pennsylvania. Within the studied cases, positive outcomes -- relief or termination -- were reached just 3 percent of the time for detainees without representation.

Unfortunately, those able to retain an attorney are not always better off. A survey of 31 of the 33 judges who preside over deportation hearings in New York, described a poor track record by the immigrant defense bar. Immigrants received "inadequate" legal assistance in 33 percent of the cases studied and "grossly inadequate" assistance in 14 percent of the cases. The vast majority of representation in immigration proceedings in New York (91 percent) is provided by private attorneys. While some obviously provide excellent services, as a class, these attorneys offered the worst representation in this forum when compared to non-profit organizations, pro bono attorneys and even law students.

The immigration representation crisis has gained traction and visibility during the past decade as increasingly harsh immigration laws, along with more intense enforcement, have resulted in a stunning increase in the number of people detained and deported for minor crimes. In 2012 alone, DHS deported 410,000 immigrants.

It is a common misconception that people deported via the criminal justice system are dangerous. When it was launched, Secure Communities -- the federal program linking local law enforcement records to ICE databases -- was advertised as prioritizing the removal of "the most dangerous and violent offenders." Yet nearly 75 percent of people deported under "S-Comm" have not been accused of major crimes. Twenty-six percent actually had no criminal charges at all.

Overall, Secure Communities has led to more harm than safety, according to Families for Freedom, part of the statewide coalition New York State Working Group Against Deportation. The program destroys police-community relationships, perverts notions of due process and justice through disparate treatment of immigrants during legal proceedings, and encourages racial and ethnic profiling, the group says.

Meanwhile the well-documented racial disproportionalities of the criminal legal system are apparent in these cases as well. Spanish speaking residents represent 74 percent of immigrants facing deportation hearings in New York City, despite this group making up closer to 40 percent of the entire undocumented population in the city.

All of this comes at an astonishing cost for taxpayers. The so-called "bed mandate" -- an eleventh-hour add-on to the 2009 Homeland Security spending bill that requires Immigration and Customs Enforcement to keep a minimum of 34,000 undocumented immigrants locked-up at all times, regardless of the crimes alleged to have been committed, costs $2 billion a year. Clearly, private prison companies, which house almost two-thirds of ICE's detainees, are benefiting, with just two -- Corrections Corp. and Geo Group -- collecting nearly $500 million in ICE contracts alone during 2012. Who else benefits from these practices?

As a 2008 New York Times editorial described: "A nation of immigrants is holding another nation of immigrants in bondage, exploiting its labor while ignoring its suffering, condemning its lawlessness while sealing off a path to living lawfully."

The New York City Council has approved a $500,000 grant for local public defender agencies -- Brooklyn Defender Services and The Bronx Defenders -- to begin providing representation to indigent people in immigration proceedings, the first program of its kind in the country. This is perhaps a first step toward creating a system within the immigration courts that is fair and just -- an impossible description for the current state characterized most dominantly by poor legal representation, when attorneys are available at all.

However, the project will assist just 190 people during the first year, and there is no guarantee the funding will be continued past 2014. While the program will likely help these represented immigrants, it seeks to provide attorneys to only a small number of those who might otherwise qualify for assistance. It would cost $7 million a year to provide legal counsel for every indigent deportation case, a small amount considering the annual Department of Corrections budget of $1.08 billion.

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