In the American criminal justice system, you have the right to an attorney. And if you cannot afford an attorney, one will be appointed for you.
That’s not the case if you’re a defendant in U.S. immigration court. Immigration proceedings are civil matters, and the Constitution does not extend the right to court-appointed attorneys to immigrant detainees.
But a new pilot program in New York City is trying to change that with the nation’s first government-funded public defender service for immigrants facing deportation. Launched earlier this month, the New York Immigrant Family Unity Project provides poor immigrant detainees with court-appointed attorneys from the Bronx Defenders and Brooklyn Defender Services.
About 44 percent of detainees entered immigration court hearings last year without a lawyer. Organizers say public defenders could not only help some immigrants avoid unnecessary deportations, but also speed up immigration proceedings and cut down on detention time.
Attorneys at the Bronx Defenders leave nothing to chance as they prepare for immigration court. After double-checking files and running through courtroom scenarios, there’s still one thing attorney Conor Gleason won’t know for sure until just hours before he’s in front of a judge: the person he’ll have to represent next as a public defender in immigration court.
“We are used to meeting our clients long before our first hearing before a judge and having contact with their families and knowing a little bit about their life,” Gleason explains. “And now we’re requesting people to trust us within five seconds of meeting us.”
These quick matches happen about once or twice a week, when there’s a new group of unrepresented detainees scheduled for their first hearings before a judge at New York’s Varick Street Immigration Court. Detainees must have household incomes at or below 200 percent of the federal poverty level to receive free legal services.
Gleason says having a public defender can have huge implications on the fate of immigrant detainees who cannot afford a private attorney or secure pro bono legal defense.
“Someone’s rights are involved in this scenario,” he says. “The individuals are in orange jumpsuits. They have the name of the facility on the back of their jumpsuits. Their hands are chained to their waist, and [only one hand is unchained], their writing hand, if they need to sign something.”
‘A Sea Change’
Funded mainly by the New York City Council and a contribution by Yeshiva University’s Cardozo School of Law, the pilot program costs $550,000 and will serve 190 detainees until at least late February. Organizers say they hope this test run will ultimately lead to a model program for other parts of the country.
“What we’re seeing right now is a sea change in the quality of justice afforded to immigrants in America,” says Peter Markowitz, a law professor at Cardozo and one of the program’s key organizers.
But the project raises questions about immigrant detainees having access to government-funded representation, says Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which favors tougher immigration enforcement. While there are a few exceptions under federal law, such as juveniles in delinquency proceedings, for the most part, Vaughan says, “American citizens are not entitled to this kind of taxpayer-funded representation when they’re in civil courts.”
Still, the launch of the New York Immigrant Family Unity Project comes months after the Obama administration introduced a new policy in April that provides “qualified representatives to detainees who are deemed mentally incompetent to represent themselves in immigration proceedings.”
A Ripple Effect
Dana Leigh Marks, president of the National Association of Immigration Judges, says the pilot program in New York is “long overdue.” After serving on the San Francisco Immigration Court for more than two decades, she says the more lawyers, the better.
“It’s helpful to have lawyers involved in the process because this is such a complicated area of the law. It’s just that simple,” Marks says.
The federal court system is currently overburdened with a large backlog of immigration cases. Part of the reason, she says, is a ripple effect of unrepresented or misguided appeals.
“We are not where the case ends. People then can appeal it to the Board of Immigration Appeals, to the Circuit Court of Appeals, and even ultimately sometimes go to the U.S. Supreme Court,” she says.
Organizers of the pilot program argue in a recent report that public defenders can save time and money for both detainees and taxpayers by ensuring proceedings move along efficiently and shortening detentions.
A Lawyer And ‘An Angel’
Jose Antonio Rico is one of its first test cases taken on by the public defender program. Rico’s mother, Brunilda Fontanillas, says she and her son couldn’t afford a private attorney after he was detained in October following an earlier landlord-tenant dispute that escalated into an arrest.
“The court helped find my son not only a lawyer but an angel,” Fontanillas says in Spanish.
As a lawful permanent resident who has lived in the U.S. for decades, Rico may be eligible to avoid deportation back to the Dominican Republic, according to Rico’s attorney Ruben Loyo of Brooklyn Defender Services.
Of the 41 detainees represented by public defenders in the pilot program’s first month, 17 so far have accepted orders for deportation.
Jennifer Friedman, who manages the immigration attorneys at the Bronx Defenders, says the public defenders have encountered more clients anxious to accept removal orders than they expected.
While it “doesn’t feel good” to represent clients accepting deportation, Friedman says she and her team take comfort in helping detainees make “empowered” decisions.
“Each one of those people who took a removal order sat down and had a lengthy conversation with an attorney before they made that decision,” she says.