Deportation can carry grave consequences. An immigrant might have to leave behind their family, abandon years-long ties to their community, and return to a country where they may have previously faced threats to their life and livelihood — even the kind that might have qualified them for humanitarian protection in the US had they been able to prove it.
But despite those potential costs, they aren’t entitled to a lawyer when facing deportation proceedings in immigration court. The Constitution’s Sixth Amendment, which guarantees a public defender to anyone accused of a crime, doesn’t apply.
The Biden administration is looking to address this. Last month, the president signed a presidential memorandum aimed at expanding access to legal representation and the courts, including for low-income people, immigrants, and asylum seekers. While details of the plan are short, he has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him.
But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.
The project started with a $500,000 grant from the New York City Council in 2013, and was based out of a single immigration court in lower Manhattan. Now the program receives $16.6 million in public funding to support more than 100 staff, including attorneys, paralegals, social workers, and administrators who work to improve outcomes for immigrants statewide.
Advocates and experts say the New York project has since inspired similar local efforts around the country.
“New York City is a great story where it started with a relatively small pilot project only trying to represent a fraction of the population, but then being able to expand on that at the state level after demonstrating success,” said Annie Chen, program director of the Vera Institute’s SAFE Initiative, which works with governments, legal service providers, and advocates to push for universal representation. “The last couple of years, local and state government have been innovating and setting up these types of programs that are really paving the way for federal action.”
Biden now has an opportunity to take advantage of that momentum.
How New York created a model for universal representation
New York was the first state to recognize the importance of providing universal representation to immigrants in detention, and it has since inspired similar state and local initiatives nationwide. There are now 43 publicly funded local and state deportation defense programs nationwide within 11 states, from Harris County, Texas, to Prince George’s County, Maryland.
It started with Second Circuit Chief Judge Robert Katzmann, who convened a group of lawyers to study the issue in 2011 after noticing that many of the immigrants who came before him in the appeals court lost out on potential opportunities for deportation relief because they didn’t have a lawyer to guide them.
The group came out with a report that found that nearly two-thirds of immigrants in New York were unrepresented, and just 3 percent of detained, unrepresented immigrants had successful outcomes. It also identified a dearth of legal talent available to fill that need.
The report was the catalyst for the New York Immigrant Family Unity Project, which started out of the Varick Street immigration court in Manhattan.
Sarah Deri Oshiro, who is now managing director of the immigration practice at the Bronx Defenders, had been working on deportation defense at Varick Street for five years prior to the implementation of the program. She saw a grim reality for detained, unrepresented immigrants, despite the city’s robust network of legal services organizations.
“Given the time- and resource-intensive nature of representing people who are in custody and litigating very complicated cases where the immigrant bears the burden of proof to win relief and the laws are stacked against them, people just didn’t have the resources to do much free detained deportation defense work,” she told me.
That changed in 2013. Lawyers from several nonprofits designated by the New York City council — Bronx Defenders, Brooklyn Defender Services, and the Legal Aid Society — chose a few days a week when they would take on every case where the individual had an income at least 200 percent below the poverty line, rather than just picking those that appeared likely to succeed.
That was an important statement to the city, private funders, and the community that an immigrant’s right to fight their case shouldn’t be based on whether they are qualified to stay in the US, said Deri Oshiro, who was part of the Bronx Defenders team that got the program off the ground. And it forced the lawyers to become better advocates.
“We were able to take on more challenging cases and really change the way that the judges interpret the law,” she said. “We were making new, better law.” They were also able to build credibility with government lawyers from the Department of Homeland Security and the immigration judges, as well as hold them accountable.
They didn’t take every case to trial — some people just didn’t qualify for any relief, and in those cases, they did not encourage false hope. In the first two years of the program, between 30 percent and 40 percent of their clients agreed to be deported at their first or second immigration court hearings, Deri Oshiro said.
That facilitated efficiency, which is critical, as the nation’s immigration courts currently face a backlog of more than 1.3 million cases that have been pending for an average of about two and a half years.
“I think that we got a lot of credibility as people who are not necessarily trying to derail the system all the time,” Deri Oshiro said.
But for those who did qualify for deportation relief, they were able to secure better outcomes. By 2017, the Vera Institute of Justice estimated a 48 percent success rate for immigrants in the program — a more than 1,000 percent increase from the success rate of immigrants at Varick Street prior to the program’s implementation. And immigrants in the program had been released from detention at almost twice the rate of unrepresented people at comparable immigration courts.
The program also helped sustain community and family ties. Clients had on average been living in the US for 16 years by the time they faced deportation and were parents to 1,859 children living in the US, the vast majority of whom had US citizenship or some other form of legal immigration status, according to the Vera Institute.
The program eventually expanded across New York City and, in 2015, to immigration courts based at three prisons upstate: the Downstate Correctional Facility in Fishkill, Ulster Correctional Facility in Napanoch, and Bedford Hills Correctional Facility.
Expanding into the prison system involved its own challenges, said Rosa Cohen-Cruz, who helped oversee the buildout as a senior immigration attorney at Prisoners’ Legal Services of New York. Immigrants were often brought to those courts for their hearings from other correctional facilities hours away, making it difficult for the attorneys to meet with their clients.
The cases were also by nature more difficult because immigrants held on criminal charges or who have criminal records are limited in their ability to be released and to get relief from deportation.
But today, there is full universal representation for all detained or incarcerated immigrants facing deportation in New York state.
“Our organizations are clearly committed to providing legal advocacy to people who’ve had the most serious criminal convictions that you can imagine,” Deri Oshiro said. “We still think that they deserve protection.”
Advocates say Biden should invest in public defender programs for immigrants
The New York Immigrant Family Unity Project (NYIFUP) can serve as a model for other public deportation programs nationwide and for the Biden administration as it looks for federal solutions to the crisis of representation.
Many local governments already are starting to wade into deportation defense but could expand with more funding. That presents an immediate and pressing opportunity, said Jojo Annobil, executive director of Immigrant Justice Corps, which trains lawyers and advocates in deportation defense to support programs like NYIFUP across the US.
“The NYIFUP model is definitely scalable,” Annobil said. “Funding brings fairness and dignity to the system. I think we have an urgency here to do it right.”
In the past, the Vera Institute has partnered with places that had never had a deportation defense program before, starting with a public defender office that brings in lawyers with immigration defense expertise to build a program from the ground up. And programs have started as a collaboration among legal services providers and law school clinics.
But there were critical lessons from getting NYIFUP off the ground. A major challenge was convincing backers in the New York City Council that the lawyers couldn’t take on the same volume of clients as expected of public defenders in the criminal system. In the immigration courts, there isn’t a system of plea bargaining, and the burden of proof falls on the immigrant, rather than on the government. That increases the workload and limits how many cases they can pursue and how quickly they can resolve them.
“We were wildly underfunded for the amount of work that our staff was required to do for every client for a long time,” Deri Oshiro said. “I wouldn’t say that workload feels perfectly manageable now, even now that we’re much more robustly funded.”
In order to effectively argue cases, the program has come to rely not just on competent attorneys but also on a range of support staff: social workers, translators, administrators, interpreters, and mental health providers. All of them are necessary to building an effective case.
“I really saw the difference that that kind of staffing can make in helping navigate the myriad issues that lawyers don’t have expertise in,” Cohen-Cruz said.
Maintaining that level of staffing requires funding, and some of that money could come from the Biden administration, to ease pressure on local resources.
Deri Oshiro said it was also important that all the organizations involved in NYIFUP were public defender agencies, and not just civil immigration legal services organizations. As public defenders, they were accustomed to holding the government to their burden of proof — for example, to first prove that someone is, in fact, an undocumented immigrant from whatever country the government alleges, via evidence obtained lawfully, before seeking any relief from deportation. They also came from a culture where having contact with the criminal legal system doesn’t mean that someone is any less worthy of representation.
If the federal government were to implement a federal public defender system for deportation defense, it would have to ensure that it could attract competent lawyers to areas that don’t already have a robust network of deportation defense services. It’s possible that federal public defenders or even US Immigration and Customs Enforcement attorneys could become federal immigrant defenders, with the requisite funding and competitive salaries.
“If they fund it properly, I don’t think that the lack of local immigrant legal service expertise would be a hindrance,” Deri Oshiro said. “You have got to go big or go home.”