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.
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.
Contact: Christian Nolan