Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings

By: Stacy Caplow, Peter L. Markowitz, Jojo Annobil, Peter Z. Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, and Lindsay C. Nash. Published by: Cardoza Law Review. Published in 2011.

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The top-line findings follow:

1. A striking percentage of detained and nondetained immigrants appearing before the New York Immigration Courts do not have representation.

In New York City:

  • Sixty percent of detained immigrants do not have counsel by the time their cases are completed.
  • Twenty-seven percent of nondetained immigrants do not have counsel by the time their cases are completed.

2. DHS’s detention and transfer policies create significant obstacles for immigrants facing removal to obtain counsel.

  • ICE transfers almost two-thirds (64%) of those detained in New York to far-off detention centers (most frequently to Louisiana, Pennsylvania, and Texas), where they face the greatest obstacles to obtaining counsel.
  • Individuals who are transferred elsewhere and who remain detained outside of New York are unrepresented 79% of the time.

3. The two most important variables affecting the ability to secure a successful outcome in a case are having representation and being free from detention.

The absence of either factor in a case— being detained but represented, or being unrepresented but not detained— drops the success rate dramatically. When neither factor is present, the rate of successful outcomes drops even more substantially.

  • Represented and released or never detained: 74% have successful outcomes.
  • Represented but detained: 18% have successful outcomes.
  • Unrepresented but released or never detained: 13% have successful outcomes.
  • Unrepresented and detained: 3% have successful outcomes.

4. Significant increases in representation could be effected for detained immigrants by keeping their proceedings in the New York City Immigration courts.

Not surprisingly, immigrants detained and transferred to far off jurisdictions had lower representation rates than immigrants detained for proceedings in New York City. However, less intuitively, the drop-off in representation rates was also dramatic for cases venued in Newark, New Jersey, a mere fifteen miles outside of New York City.

  • Detained representation rate in New York City: 40%.
  • Detained representation rate in Newark, New Jersey: 22%.
  • Detained representation rate for New Yorkers in all locations outside of New York: 19%.

5. ICE detention practices and disproportionately high bond amounts in New York inhibit access to counsel.

A significant majority of detained respondents— at least 60%, but likely significantly more— are not subject to mandatory detention and thus could be released on their own recognizance or subject to noncustodial supervision, significantly increasing their access to counsel.

6. Grave problems persist in regard to deficient performance by lawyers providing removal-defense services.

New York immigration judges rated nearly half of all legal representatives as less than adequate in terms of overall performance; 33% were rated as inadequate and an additional 14% were rated as grossly inadequate. The epicenter of the quality problem is in the private bar, which accounts for 91% of all representation and, according to the immigration judges surveyed, is of significantly lower quality than pro bono, nonprofit, and law school clinic providers.

7. Detained cases are least served by existing removal-defense providers.

8. The two greatest impediments to increasing the capacity of existing providers are a lack of funding and a lack of resources to build a qualified core of experienced removal-defense providers.

Citation: (p. 3-4)

Categories: Immigration, Legal Aid Attorneys, Legal Aid Practitioners, Migrants/Immigrants, State-Specific

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