Representation for immigrants: A judge's personal perspective

Fordham Law Review

Volumn 78, Issue 2, 2009, Pages 633-638

  Chin, Denny ^a  

^a NONE

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EID: 73049093865     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (45)

1. U.S. Circuit Judge for the U.S. Court of Appeals for the Second Circuit. Judge Robert A. Katzmann has spearheaded efforts to improve the quality of legal representation and the administration of justice in the immigration area. See Robert A. Katzmann, The Marden Lecture: The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 GEO. J. LEGAL ETHICS 3 (2008).
2. In particular, Michael D. Patrick and his firm, Fragomen, Del Rey, Bernsen & Loewy, LLP, have been supportive of our efforts.
3. For example, the Public Service Committee of the Federal Bar Council, chaired by Peter K. Vigeland of WilmerHale, has worked closely with us in this respect.
4. The involvement of grievance committee lawyers is an important aspect of our endeavor. Many of the practitioners in the immigration area "render inadequate and incompetent service. They undermine trust in the American legal system, with damaging consequences for the immigrants' lives." Katzmann, supra note 1, at 9
5. see also Aris v. Mukasey, 517 F.3d 595, 600-01 (2d Cir. 2008) (Katzmann, J.) (holding that attorney in deportation proceeding failed to provide effective assistance). One aspect of our discussion is what steps can be taken to improve the quality of legal representation. Ironically, the grievance committees do not have jurisdiction over a significant segment of immigration service providers - nonattorney "notarios" and travel agencies that cater to, and sometimes victimize, poor immigrants who cannot find or afford an attorney. Katzmann, supra note 1, at 8 ("[A]necdotal evidence suggests that not all notarios and travel agents are competent or honest; travel agents often refer the immigrants to persons with whom they have relationships, but who are not licensed to practice law. These unauthorized practitioners, sometimes known misleadingly as 'notarios, ' charge immigrants for their services in filing documents and preparing applicants for relief and benefits, but often lead the immigrants astray with incorrect information and terrible advice with lasting, damaging consequences that can fatally prejudice what otherwise would be a proper claim to entry."). The district attorneys' offices, however, have recently started addressing the issue, and the New York County District Attorney's Office has started an Immigrant Affairs Program.
6. See, e.g., News Release, District Attorney - New York County (Aug. 6, 2009), http://manhattanda.org/whatsnew/press/2009-08-6.shtml (announcing arrest of two individuals for illegally practicing law and operating fraudulent immigration consulting business in Chinatown)
7. For example, with the recent downturn in the economy, law firms laid off or "furloughed" many attorneys and deferred offers to others. Our study group (with Peter L. Markowitz of the Immigration Justice Clinic at Benjamin N. Cardozo School of Law taking the lead) organized a meeting of immigration service providers to consider whether these attorneys could be tapped to provide pro bono assistance. As a result of these efforts, some twenty to thirty lawyers were placed, on a pro bono basis, with immigration service providers. Tom Shea of the New York Immigration Coalition has organized training for the attorneys. In addition, with our assistance, the Federal Bar Council Public Service Committee has embarked on an effort to provide pro bono screening and consultations for detained immigrants at the Varick Street Detention Facility, as well as to take on the representation of nondetained immigrants in their removal proceedings at 26 Federal Plaza. This is a collaborative effort: the member law firms of the Federal Bar Council are providing attorneys; the Legal Aid Society, Human Rights First, and other nonprofit service providers are providing training and supervision; the American Immigration Lawyers Association is providing mentoring; and Immigration Judge Noel Brennan is providing sage overall advice and encouragement.
8. For example, the long-standing debate continues over whether aliens have a constitutional right to counsel in immigration proceedings. It is well settled that they do not have a Sixth Amendment right to counsel in removal proceedings, which are deemed civil in nature.
9. See, e.g., Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009). But an alien's right to due process may be implicated if, for example, an "egregiously deficient performance by the alien's lawyer" '"threatens the fairness of the proceeding.'"
10. Id.
11. (quoting Nehad v. Mukasey, 535 F.3d 962, 971 (9th Cir. 2008)). Other legal issues arise, for example, with respect to the conditions of confinement of aliens in removal proceedings, including whether the detention is civil or criminal in nature.
12. Conradt v. NBC Universal, Inc., 536 F. Supp. 2d 380 (S.D.N.Y. 2008) (denying in part and granting in part motion to dismiss claims brought by estate of prosecutor who committed suicide as he was about to be arrested for soliciting a minor in connection with filming for NBC television show To Catch A Predator)
13. Morales v. Portuondo, 154 F. SUPP. 2d 706 (S.D.N.Y. 2001) (granting habeas petition and ordering release of defendant who had been incarcerated for some twelve years after priest came forward to disclose confession by real murderer, who absolved defendant)
14. Million Youth March, Inc. v. Safir, 63 F. SUPP. 2d 381 (S.D.N.Y. 1999) (ordering City of New York to issue parade permit to organizers of march, where City had denied permit on grounds leader of group had made racist statements in the past)
15. Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996) (addressing constitutionality of Megan's Law, the New York sex offender statute), offd in part and rev'd in part, 120 F.3d 1263 (2d Cir. 1997).
16. On March 12, 2009, the day after the Levine Lecture, I took the guilty plea of Bernard L. Madoff, who was charged with securities fraud and related crimes in what has been described as "Wall Street's biggest and longest fraud." Diana B. Henriques & Jack Healy, Madoff Jailed After Pleading Guilty to Fraud, N.Y. TIMES, Mar. 13, 2009, at Al
17. see, e.g., United States v. Madoff, 316 F. APP'X 58 (2d Cir. 2009) (affirming district court's decision to remand defendant pending sentencing); United States v. Madoff, 626 F. Supp. 2d 420 (S.D.N.Y. 2009) (granting in part and denying in part media's motion to unseal emails and letters from victims and other documents). I eventually sentenced Madoff to a term of imprisonment of 150 years.
18. See, e.g., Diana B. Henriques, Madoff, Apologizing, Is Given 150 Years, N.Y. TIMES, June 30, 2009, at Al
19. See Chinese Exclusion Act, ch. 126, 22 STAT. 58, 58-61 (1882) (repealed 1943). There were a series of Chinese exclusion statutes from 1882 to 1892.
20. See Act of May 6, 1882, ch. 126, 22 STAT. 58 (repealed 1943) (executing certain treaty stipulations relating to Chinese)
21. Act of July 5, 1884, ch. 220, 23 STAT. 115 (repealed 1943) (amending treaty stipulations relating to Chinese)
22. Act of Oct. 1, 1888, ch. 1064, 25 STAT. 504 (repealed 1943) (supplementing prior treaty stipulations)
23. Act of May 5, 1892, ch. 60, 27 STAT. 25 (repealed 1943) (prohibiting the immigration of Chinese).
24. The 1882 act was the first congressional restriction on immigration. See Louis Henkin, The Constitution and the United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 856 n.12 (1987).
25. The U.S. Supreme Court upheld Chinese exclusion acts in Chae Chan Ping v. United States, 130 U.S. 581 (1889)
26. and again in Fong Yue Ting v. United States, 149 U.S. 698(1893).
27. In the face of the Chinese Exclusion laws, in the early 1900s many Chinese sought to enter the United States by taking advantage of certain limited exceptions. One loophole enabled children of U.S. citizens who were born outside the United States to enter the United States, and thus U.S. citizens of Chinese descent were able to bring in "paper sons" who pretended to be their offspring to gain entry.
28. See Estelle T. Lau Excavating the "Chinese Wall": Towards a Socio-Historical Perspective on the Development of United States Immigration Administration and Chinese Exclusion, 92 NW. U. L. REV. 1068, 1076-77 (1998).
29. The great San Francisco earthquake of 1906 destroyed many public records relating to the Chinese in the United States, and the loss of these records enabled many Chinese to be able to claim that they were born in the United States and therefore were entitled to bring their children into the country. Id. at 1076 n.13.
30. Usually, male children were brought in - hence the term "paper sons." Id. at 1077 n.14. After the loopholes were tightened, however, the largely male Chinese populations were unable to bring their families to the United States to join them until after the immigration laws were relaxed in the mid-1960s.
31. On May 14, 2009, I spoke on Ellis Island to a gathering of federal employees. I talked about my grandfather and mentioned that I did not know how he had been able to enter the United States in 1916. After my speech, I was approached by Nancy M. Shader, the Director of Archival Operations of the Northeast Region of the National Archives, who kindly offered to help me find my grandfather's original paperwork. Just two-and-a-half weeks later, she emailed me my grandfather's naturalization petition.
32. See Petition for Naturalization, Chin Doo Teung (May 5, 1947) (reproduced following these remarks). I am grateful to her, because the petition provides certain information I had not previously known.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
39. My grandfather's naturalization petition represented that he had three children, including my father. I had never heard that my father had any siblings, and so I asked my father about this recently after I received the copy of my grandfather's petition. My father explained that my grandfather was laying the groundwork, in effect, to commit immigration fraud: by claiming two other children, my grandfather was hoping that someday he would be able to bring to the United States not just my father but two others as well (such as my father's cousins) on the pretense that they were also his children. In fact, he never followed through on this plan.
40. Pub. L. No.83-203, 1953 U.S.C.C.A.N. (67 STAT. 400) 444
41. see also Cheng Lee King v. Carnahan, 253 F.2d 893, 895 (9th Cir. 1958) (holding that Refugee Relief Act of 1953 "was enacted to provide for the admission of refugees (recent escapees) who had fled from Communist territory and were in camps or in desperate condition in the countries to which they escaped"). The bill provided for the issuance of some 240, 000 visas to refugees. Id.
42. Because I was under eighteen when my parents were naturalized and had been lawfully admitted to the United States with a green card, I became a citizen derivatively, by operation of law.
43. See 8 U.S.C. § 1431(a) (2006) (child born outside United States automatically becomes U.S. citizen when at least one parent is U.S. citizen, by birth or naturalization, child is under age eighteen, and child is residing in United States in lawful custody of citizen parent pursuant to lawful admission for permanent residence).
44. LEWIS CARROLL, THROUGH THE LOOKING GLASS 106 (Schocken Books 1987) (1872).
45. See INTERNET BUREAU, ATT'Y GEN. OF THE STATE OF N.Y., IN THE MATTER OF VERIZON WIRELESS: ASSURANCE OF DISCONTINUANCE (2007) [hereinafter VERIZON ASSURANCE OF DISCONTINUANCE], available at http://www.oag.state.ny.us/media- center/2007/oct/Verizon%20Wireless%20AOD.pdf (requiring that Verizon cease advertisements describing its Data Access Plan as "unlimited" when it imposed significant limits and requiring restitution to affected consumers)