Barriers to representation for detained immigrants facing deportation: Varick street detention facility, a case study

Fordham Law Review

Volumn 78, Issue 2, 2009, Pages 541-575

  Markowitz, Peter L ^a  

^a YESHIVA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 73049113119     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (212)

1. U.S. DEP'T OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FY 2007 STATISTICAL YEAR BOOK G1 fig.9 (2008) [hereinafter EOIR 2007 STATISTICAL YEAR BOOK], available at http://www.usdoj.gov/eoir/statspub/fy07syb.pdf.
2. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FY 2007 STATISTICAL YEAR BOOK G1 fig.9 (2008) [hereinafter EOIR 2007 STATISTICAL YEAR BOOK], available at http://www.usdoj.gov/eoir/statspub/fy07syb.pdf., Id.
3. Id. at W1 fig.30. Even in the federal courts, many respondents are forced to pursue appeals without counsel. See Robert A. Katzmann, The Marden Lecture: The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 8 (2008) ("In the Second Circuit, approximately 44% of the BIA decisions were appealed. Of those cases on appeal in the Second Circuit, 78% were counseled and the rest were handled pro se."
4. See Andrew I. Schoenholtz & Hamutal Bernstein, Improving Immigration Adjudications Through Competent Counsel, 21 GEO. J. LEGAL ETHICS 55, 56 (2008)
5. See generally AMNESTY INTERNATIONAL, JAILED WITHOUT JUSTICE: IMMIGRATION DETENTION IN THE USA 3 (2009), available at www.amnestyusa.org/uploads/ JailedWithoutJustice.pdf.;
6. EOIR 2007 STATISTICAL YEAR BOOK, supra note 1, at O1 fig.23 (listing figures from 2003 to 2007
7. AM. BAR ASS'N COMM'N ON IMMIGRATION, IMMIGRATION DETAINEE PRO BONO OPPORTUNITIES GUIDE 1 (2004) [hereinafter PRO BONO OPPORTUNITIES GUIDE], available at http://www.abanet.org/publicserv/immigration/probonoguidefinal.pdf.
8. EOIR 2007 STATISTICAL YEAR BOOK, supra note 1, at O1 fig.23 (stating forty-two percent of cases involved detainees in 2007
9. NINA SIULC ET AL., VERA INST. OF JUSTICE, IMPROVING EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM (2008) [hereinafter IMPROVING EFFICIENCY], available at http://www.vera.org/download?file=1780/LOP%2BEvaluation⋯final⋯;
10. see also PRO BONO OPPORTUNITIES GUIDE, supra note 6, at 1 (finding in 2004 that only approximately ten percent of immigration detainees were represented by counsel).
11. In fact, the U.S. Department of Homeland Security (DHS) has recently acknowledged the need to dramatically reform its detention system to, among other things, better facilitate access to counsel for detained respondents. See Nina Bernstein, U.S. to Reform Policy on Detention for Immigrants, N.Y. TIMES, Apr. 2, 2009, at A1
12. Press Release, Dep't. of Homeland Security, ICE Announces Major Reforms to Immigration Detention System (Aug. 6, 2009) [hereinafter DHS Press Release], http://www.ice.gov/pi/nr/0908/090806washington.htm. On August 6, 2009, ICE Assistant Secretary John Morton announced that ICE is creating an Office of Detention Policy and Planning, which will evaluate the immigration detention system, and include the development of a "national strategy for the effective use of alternatives to detention including community supervision."
13. Id.
14. See, e.g., N.Y. UNIV. CHAPTER OF THE NAT'L LAWYERS GUILD, BROKEN JUSTICE: A REPORT ON THE FAILURES OF THE COURT SYSTEM FOR IMMIGRATION DETAINEES IN NEW YORK CITY 16 (2007), available at http://www.nlgnyc.org/pdf/broken-justice.pdf (noting that out of the four hundred cases observed, "[i]n some cases, the actual outcome of the trial was altered by poor legal representation. ⋯ [We] observed many breaches in very basic but very important courtroom conduct");
15. see also Richard L. Abel, Practicing Immigration Law in Filene's Basement, 84 N.C. L. REV. 1449, 1488 (2006) (noting that many immigrants are "unusually vulnerable: poor, deeply in debt, uneducated, ignorant of language and culture, and threatened with losing everything they have so painfully won" and briefly describing how nonlawyer intermediaries, such as "notarios," come to "dominate many practitioners");
16. Jennifer Barnes, The Lawyer-Client Relationship in Immigration Law, 52 EMORY L.J. 1215, 1217-18 (2003) (noting the vulnerability of the immigrant population and the abuses of "notarios" and other "immigration consultants");
17. Katzmann, supra note 3, at 8-9 ("[T]oo many [attorneys] render inadequate and incompetent service. These attorneys do not even meet with their clients to ascertain all the relevant facts and supporting evidence or prepare them for their hearings; these are 'stall' lawyers who hover around the immigrant community, taking dollars from vulnerable people with meager resources. They undermine trust in the American legal system, with damaging consequences for the immigrants' lives.");
18. Larry Neumeister, ASSOCIATED PRESS, Federal Court in NYC Chides Lawyers on Both Sides for Failing Immigrants, Feb. 21, 2008, available at http://nl.newsbank.com/nl-search/we/Archives?p-product=APAB&p-theme= apab&p-action=search&p-maxdocs=200&s-dispstring= Federal%20Court%20in%20NYC%20Chides%20Lawyers&p-field-advanced-0= p-text-advanced-0=%28%22Federal%20Court%20in%20NYC%20Chides%20Lawyers%22%29& xcal-numdocs=20&p-perpage=10&p-sort=YMD-date:D&xcal-useweights=no.
19. See, e.g., Aris v. Mukasey, 517 F.3d 595, 601 (2d Cir. 2008) (explaining that the attorneys had "failed spectacularly to honor their professional obligation" and that "[w]hen lawyers representing immigrants fail to live up to their professional obligations, it is all too often the immigrants they represent who suffer the consequences");
20. Gjondrekaj v. Mukasey, 269 F. App'x. 106, 108-09 (2d Cir. 2008) (noting "the disturbing problems of ineffective assistance even by licensed attorneys in many immigration cases");
21. Morales Apolinar v. Mukasey, 514 F.3d 893, 897 (9th Cir. 2008);
22. Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003) (recognizing that preparers of asylum applications, "whether lawyers or non-lawyers, are not always scrupulous").
23. Morales Apolinar, 514 F.3d at 897.
24. Aris, 517 F.3d at 596.
25. See, e.g., Benslimane v. Gonzales, 430 F.3d 828, 831 (7th Cir. 2005);
26. Pervaiz v. Gonzales, 405 F.3d 488, 491 (7th Cir. 2005).
27. Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003).
28. Knauer v. United States, 328 U.S. 654, 676 (1946) (Rutledge, J., dissenting).
29. Cox v. United States, 332 U.S. 442, 454 (1947)
30. quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)
31. Knauer, 328 U.S. at 659
32. quoting Ng Fung Ho, 259 U.S. at 284
33. Schoenholtz & Bernstein, supra note 4, at 55. This conclusion is supported by a report by the United States Commission on International Religious Freedom, which found, in expedited removal cases, where many of the applicants are in detention, unrepresented respondents succeeded only two percent of the time, while those with counsel succeeded twenty-five percent of the time.
34. Charles H. Kuck, Legal Assistance for Asylum Seekers in Expedited Removal: A Survey of Alternate Practices, in U.S. COMM'N ON INTERNATIONAL RELIGIOUS FREEDOM: REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL II 232, 239 (2004), available at http://www.uscirf.gov/images/stories/pdf/asylum-seekers/ ERS-RptVolII.pdf.
35. See 8 C.F.R. § 1240.11 (2009);
36. see also 2 UNITED STATES OFFICE OF THE CHIEF IMMIGRATION JUDGE, IMMIGRATION JUDGE BENCHBOOK 542-43 (4th ed. 2001) [hereinafter IMMIGRATION JUDGE BENCHBOOK], available at http://www.usdoj.gov/eoir/vll/benchbook/index.html ("[T]he Immigration Judge has the responsibility for assuring that the respondent is accorded all of his rights and full due process. Also, the Immigration Judge should be more considerate of the unrepresented respondent. He is often frightened or nervous, poor, and uneducated. ⋯ In the case of the unrepresented respondent, the Immigration Judge will have to take a more active role in the development of the hearing.")
37. id. at 540 ("[T]he Immigration Judge has a responsibility to advise the respondent of any relief to which he may be entitled to apply. ⋯ In all pro se matters, the Immigration Judge must be careful and solicitous of the respondent.")
38. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, IMMIGRATION COURT PRACTICE MANUAL 67 (Am. Immigration Lawyers Ass'n 2008), available at http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij-page1.htm ("If the Immigration Judge decides to proceed with pleadings, he or she advises the respondent of any relief for which the respondent appears to be eligible.").
39. 8 C.F.R. § 1240.11(a) (2) (2009) ("The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter .").
40. See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 832 (1987);
41. United States v. Barraza-Duarte, 265 F. App'x 553 (9th Cir. 2008)
42. United States v. Moriel-Luna, 244 F. App'x 810 (9th Cir. 2007)
43. Cooke v. Attorney Gen. of U.S., 181 Fed. App'x 311 (3d Cir. 2006)
44. United States v. El Shami, 434 F.3d 659 (4th Cir. 2005);
45. United States v. Sosa, 387 F.3d 131 (2d Cir. 2004);
46. Cano-Merida v. INS, 311 F.3d 960, 964-65 (9th Cir. 2002);
47. United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000);
48. Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000).
49. See Immigration Crackdown Overwhelms Judges (NPR radio broadcast Feb. 9, 2009), available at http://www.npr.org/templates/story/story.php?storyId= 100420476 (statement of Dana Leigh Marks, head of the Immigration Judges Union).
50. Id.
51. Id. (statement of Julie Myers-Wood, former head of Immigration and Customs Enforcement).
52. See EOIR 2007 STATISTICAL YEAR BOOK, supra note 1, at G1 (noting that the "majority of failures to appear [are] unrepresented")
53. see also IMPROVING EFFICIENCY, supra note 8, at 3 (finding that even respondents who merely received legal information from an attorney were seven percent less likely to abscond than those who did not have access to the program).
54. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry .");
55. Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) ("Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure.").
56. But see Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach To Understanding the Nature of Immigration Removal Proceedings, 53 HARV. C.R.-C.L. L. REV. 289 (2008).
57. See generally Fong Yue Ting v. United States, 149 U.S. 698 (1893);
58. see also Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003)
59. United States v. Loaisiga, 104 F.3d 484, 485 (1st Cir. 1997)
60. Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988);
61. United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir. 1987);
62. Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986);
63. Delgado-Corea v. INS, 804 F.2d 261, 262 (4th Cir. 1986);
64. United States v. Cerda-Pena, 799 F.2d 1374, 1376 n.2 (9th Cir. 1986);
65. Trench v. INS, 783 F.2d 181, 183 (10th Cir. 1986). An immigrant in removal does have the right to counsel at his or her own expense.
66. See Immigration and Nationality Act (INA) 8 U.S.C. § 1362 (2006);
67. id. § 1229a(b) (4)(A).
68. 8 U.S.C. § 1362 (2006);
69. see also id. § 1229a(b) (4)(A) ("[T]he alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien's choosing who is authorized to practice in such proceedings .").
70. See In re Gault, 387 U.S. 1, 41 (1967) ("We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.").
71. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 31-32 (1981) (suggesting that due process can require appointed counsel in some parental termination cases).
72. See, e.g., Mark T. Fennell, Preserving Process in The Wake of Policy: The Need for Appointed Counsel in Immigration Removal Proceedings, 23 NOTRE DAME J.L. ETHICS & PUB. POL'Y 261, 287-88 (2009);
73. Beth J. Werlin, Note, Renewing the Call: Immigrants' Right to Appointed Counsel in Deportation Proceedings, 20 B.C. THIRD WORLD L.J. 393, 393-94 (2000);
74. Donald Kerwin, Revisiting the Need for Appointed Counsel, INSIGHT (Migration Policy Institute, Wash., D.C.), Apr. 2005, at 7-9, available at http://www.migrationpolicy.org/insight/Insight-Kerwin.pdf.
75. See U.S. Census Bureau, American Community Survey, available at http://factfinder.census.gov/servlet/DatasetMainPageServlet?-program= ACS&-submenuId=&-lang=en&-ts=; Press Release, U.S. Census Bureau, Census Bureau Data Show Characteristics of the U.S. Foreign-Born Population (Feb. 19, 2009)
76. [hereinafter U.S. Census Bureau Press Release], available at http://www.census.gov/Press-Release/www/releases/archives/american-community- survey-acs/013308.html
77. Compare U.S. Census Bureau, American Community Survey, supra note 32 (compiling Census Statistics for 2008 and listing the percentage of those at or below the poverty line as 24% for Mexican-born population; 14.8% for the El-Salvadorian born population; 19.9% for the Guatemalan-born population; 21.4% for the Honduran-born population; and 13.1% for the Chinese-born population - averaging significantly in excess of the general poverty rate of 13.2%), and U.S. CENSUS BUREAU, INCOME, POVERTY AND HEALTH COVERAGE IN THE U.S. 12-16 (2007), available at http://www.census.gov/hhes/www/poverty/poverty07.html
78. EOIR 2007 STATISTICAL YEAR BOOK, supra note 1, at J2 tbl.7, E1 fig.6 (noting that the ten most common nationalities in removal proceedings - including Mexicans, Salvadorians, Guatemalans, Hondurans, and Chinese - account for 77% of all court proceedings, with Mexicans alone accounting for almost 36% of removal cases in 2007).
79. See, 2 IMMIGRATION JUDGE BENCHBOOK, supra note 19, at 542 ("[T]he Immigration Judge should be more considerate of the unrepresented respondent. He is often frightened or nervous, poor, and uneducated.").
80. Alternatively, some reputable private attorneys require a sufficient retainer to ensure full payment. However, such retainers are simply unaffordable to many respondents.
81. This statement does not take account of one nonattorney practitioner, an accredited representative, who has historically handled an extraordinary solo caseload of pro bono deportation defense matters in the New York Immigration Court. According to one immigration judge interviewed for this report, this practitioner alone handles more cases than any institutional provider of pro bono deportation defense services. Interview with Immigration Judge, in N.Y., N.Y. (Feb. 12, 2009). However, recently, after concerns were raised to the EOIR about the poor quality of representation provided by this practitioner, EOIR initiated discussions with nonprofit service providers and private attorneys about taking over representation on some of his cases.
82. See Interview with Jojo Annobil, Immigration Attorney, Immigration Law Unit at The Legal Aid Soc'y, in N.Y., N.Y. (Sept. 18, 2009).
83. No comprehensive statistics are publicly available regarding the number of unrepresented respondents in the New York Immigration Courts. However, we know the New York Immigration Court received 20,770 cases in fiscal year 2007. EOIR 2007 STATISTICAL YEAR BOOK, supra note 1, at B4 tbl.1A. We project that approximately 3000 respondents in the New York Immigration Courts went unrepresented. We base this projection on the assumption that the representation rate in New York far exceeds the national average since New York is, relative to the rest of the country, rich in legal and pro bono resources and since respondents in New York Immigration Courts generally have the advantage of having local family members who can sometimes secure counsel. See discussion infra Part II.C.
84. The Interest on Lawyer Account (IOLA) Fund of the State of New York has also historically been an important aspect of civil legal services funding in New York State. However, this source of funding has recently declined precipitously in the wake of the current financial crisis. See Impact of the State Budget on Access to Justice: Hearing Before the Assem. Standing Comms. On Codes, Judiciary, Governmental Operations, and Corrections, 232d Leg., Reg. Sess. (N.Y. 2009) (testimony of Andrew Scherer, Executive Director and President, Legal Services NYC), http://www.legalservicesnyc.org/index.php? option=com-content&task=view&id=288&Itemid=142 (noting that IOLA grants are projected to decrease from $31 million in December 2008, down to as little as $1 to $4 million by December 2009).
85. See supra note 28 and accompanying text.
86. Legal Services Corporation, Statutory Restrictions on LSC-funded Programs, http://www.lsc.gov/about/factsheet-whatislsc.php (last visited Oct. 8, 2009) ("LSC is the single largest provider of civil legal aid for the poor in the nation.").
87. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in scattered titles and sections of the U.S.C.). The law does, however, provide for exceptions to the bar on funding counsel for immigrants if it is work on behalf of lawful permanent residents, H2A agricultural workers, H2B forestry workers, and victims of battering, extreme cruelty, sexual assault, or trafficking. Id.;
88. see also 42 U.S.C. § 2996 (2006)
89. Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001)
90. Legal Services, supra note 41. These exceptions actually would permit an LSC funded organization to provide deportation defense in some types of cases, perhaps most significantly those brought against legal permanent residents. However, an unfortunate consequence of the LSC immigration funding restrictions was that many civil legal service organizations stopped handling deportation defense cases as part of their cessation of general immigration assistance. For example, Legal Services NYC, the largest nonprofit civil legal service provider in New York, helped over 60,000 people in 2007, but did virtually no deportation defense work
91. See LEGAL SERVICES NYC, NYC 2007 ANNUAL REPORT 7 (2007), available at http://www.legalservicesnyc.org/storage/lsny/PDFs/ls-nyc-2007-annual-report.pdf.
92. See supra note 10 and accompanying text.
93. See U.S. Census Bureau Press Release, supra note 32.
94. See id. (stating that sixty percent of the foreign-born population has a high school degree, compared to eighty-eight percent of the native born population, and also noting that fifty-two percent of the foreign-born population say they speak English "less than 'very well,'" compared to two percent of the native born population).
95. Alisa Solomon, Op-Ed., The Prison on Varick Street, N.Y. TIMES, June 11, 1994, at A21.
96. U.S. DEP'T OF HOMELAND SECURITY, DETENTIONS OPERATIONS MANUAL, INS Detention Standards, § 13 (III)(A) (1)-(3) (2000) [hereinafter DOM], available at http://www.ice.gov/pi/dro/opsmanual/index.htm.
97. See generally Rosaly Kozbelt, Due Process at Varick Street, FED. B. COUNCIL NEWS, Dec./Jan./Feb. 2009, at 14.
98. The New York Immigration Court has two locations. Most New York immigration judges sit at the court located at 26 Federal Plaza, but two judges sit at the court located in the same building as the Varick Detention Facility. These two judges handle the detained docket; virtually all the detained immigrants prosecuted in New York will appear before one of these two judges.
99. See discussion infra Part II. D.i (regarding the impact of DHS transfer policy on detainee access to legal representation).
100. See Nina Bernstein, Despite Vow, Target of Immigrant Raids Shifted, N.Y. TIMES, Feb. 4, 2009, at A1;
101. Spencer S. Hsu, Immigration Priorities Questioned: Report Says Focus on Deporting Criminals Apparently Shifted, WASH. POST, Feb. 5, 2009, at A2
102. see also BESS CHUI, LYNLY EGYES, PETER L. MARKOWITZ & JAYA VASANDANI, CONSTITUTION ON ICE: A REPORT ON IMMIGRATION HOME RAID OPERATIONS 10-11 (2009), available at http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/ immigrationlaw-741/IJC-ICE-Home-Raid-Report%20Updated.pdf;
103. MARGOT MENDELSON, SHAYNA STROM & MICHAEL WISHNIE, MIGRATION POLICY INST., COLLATERAL DAMAGE: AN EXAMINATION OF ICE'S FUGITIVE OPERATIONS PROGRAM 1-2 (2009), available at http://www.migrationpolicy.org/pubs/NFOP-Feb09.pdf.
104. See supra notes 34, 45 and accompanying text.
105. See N.Y. UNIV. CHAPTER OF THE NAT'L LAWYERS GUILD, supra note 10, at 4, 15 (stating that of the 400 cases observed at the Varick Immigration Court during 2006-2007, twenty-five percent appeared pro se and, of those, thirty-two percent were still actively seeking representation or had been abandoned by their attorney).
106. See EOIR 2007 STATISTICAL YEAR BOOK, supra note 1, at G1 fig.9.
107. N.Y. UNIV. CHAPTER OF THE NAT'L LAWYERS GUILD, supra note 10, at 15;
108. see also supra notes 4-8 and accompanying text.
109. Based upon the accounts of the immigration judges who sit at and supervise the Varick Street Immigration Court, the percentage of represented respondents is estimated to be between fifty and seventy-five percent.
110. See also supra notes 35-41 and accompanying text. The judges noted only two public interest organizations that regularly appear at the Varick Street Immigration Court: The Legal Aid Society's Immigration Law Unit and The Bronx Defenders. These organizations handle only a handful of cases on the court's docket.
111. See Interview with Immigration Judge, in N.Y., N.Y. (Feb. 13, 2009).
112. Interview with Immigration Judge, in N.Y., N.Y. (Feb. 13, 2009).
113. See, e.g., REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231 (codified as amended 8 U.S.C. § 1252 (2006))
114. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered titles and sections of the U.S.C.).
115. See U.S. Dep't. of Justice, List of Free Legal Services Providers, http://www.usdoj.gov/eoir/probono/freelglchtNY.htm (last visited Oct. 8, 2009).
116. According to interviews with the immigration judges, only the Legal Aid Society regularly takes detained cases. The Bronx Defenders is not on the pro bono list because it does intake exclusively through the Bronx Criminal Courts. See Interview with Immigration Judge, in N.Y., N.Y. (Feb. 13, 2009).
117. The Immigrant Rights Clinic at NYU School of Law, Immigration Justice Clinic at Benjamin N. Cardozo School of Law, and the Immigration Law and the Safe Harbor Project at Brooklyn Law School have all begun participating in the project.
118. Attorneys through this project may see only five detainees at any given time.
119. See Interview with Maria Navarro, Supervising Attorney of Legal Aid Immigration Unit, in N.Y., N.Y. (Nov. 7, 2008) (on file with author)
120. see also CITY BAR JUSTICE CTR., FAST FACTS ON THE NYC KNOW YOUR RIGHTS PROJECT AT VARICK FEDERAL DETENTION FACILITY (2009) (noting that in first several months of the partnership, fifty-two detainees received services).
121. See supra Part II.B (discussing size of Varick Detention Facility population).
122. See CITY BAR JUSTICE CTR., supra note 64, at 1.
123. 8 U.S.C. § 1226(c) (2006).
124. See, e.g., In re Saysana, 24 I. & N. Dec. 602, 605-06 (B.I.A. 2008) (adopting the DHS position that an alien can be subject to mandatory detention as a result of an arrest that occurs subsequent to the Transition Period Custody Rules (TPCR) expiration date, even though that arrest did not lead to a conviction);
125. In re Rojas, 23 I. & N. Dec. 117, 127 (B.I.A. 2001) (adopting DHS position that a criminal alien who is released from criminal custody after the expiration of the TPCR is subject to mandatory detention pursuant to section 236(c), even if the alien is not immediately taken into custody by the Immigration and Naturalization Service when released from incarceration);
126. In re West, 22 I & N Dec. 1405 (B.I.A. 2000).
127. See Demore v. Kim, 538 U.S. 510, 531 (2003) (upholding the mandatory detention statute against a claim that due process requires an individualized assessment of risk of flight and dangerousness).
128. See 8 U.S.C. § 1229(a) (1) (G)(i).
129. The notice of appearance form for DHS is known as Form G-28. U.S. DEP'T OF JUSTICE, NOTICE OF ENTRY OF APPEARANCE AS ATTORNEY OR REPRESENTATIVE, Form G-28 (2000).
130. The notice of appearance form for immigration court is known as Form EOIR-28. U.S. DEP'T OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OMB#1125-0006, NOTICE OF ENTRY OF APPEARANCE AS ATTORNEY OR REPRESENTATIVE BEFORE THE IMMIGRATION COURT (2009).
131. See, e.g., Velasquez v. Reilly, No. 09-2093, slip op. (S.D.N.Y. May 14, 2009) (habeas petition challenging transfer based on interference with access to counsel).
132. Immigration Transfers Add to System's Problems (NPR radio broadcast Feb. 11, 2009) [hereinafter NPR Broadcast] (statement made by John Torres, ICE), available at http://www.npr.org/templates/story/story.php?storyId=100597565.
133. Immigration Transfers Add to System's Problems, Id.
134. Immigration Transfers Add to System's Problems, Id.
135. One immigration judge interviewed for this report explained that sometimes even DHS attorneys cannot account to the court for the current whereabouts of detained respondents. See Interview with Immigration Judge, in N.Y., N.Y. (Feb. 13, 2009).
136. See, e.g., Federal Bureau of Prisons, BOP: Inmate Locator Main Page, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited Oct. 3, 2009) [hereinafter Inmate Locator]. The Inmate locator can help to find DHS detainees in BOP facilities but does not contain info on DHS detainees in local jails or private facilities and thus is not a comprehensive system of all immigration detention facilities.
137. 8 C.F.R. § 292.4 (2009).
138. See, e.g., Pergjoni v. Holder, 311 F. App'x 892, 896 (6th Cir. 2009);
139. Martadinata v. Attorney Gen. of U.S., No. 08-1575, 2009 WL 82698, at *2 (3d Cir. Jan. 14, 2009);
140. Frech v. U.S. Attorney Gen., 491 F.3d 1277, 1282 (11th Cir. 2007)
141. Monter v. Gonzales, 430 F.3d 546 (2d Cir. 2005)
142. In re Singh, 2009 WL 422059 (B.I.A. Jan. 28, 2009)
143. In re Agbai, 2008 WL 4722689 (B.I.A. Oct. 3, 2008);
144. In re Lomba, 2008 WL 3861958 (B.I.A. July 11, 2008);
145. In re Aguayo-Diaz, 2007 WL 4182270 (B.I.A. Oct. 16, 2007)
146. In re Silva, 2007 WL 2299588 (B.I.A. July 23, 2007).
147. According to the 2000 edition of DHS's Detention Operations Manual (DOM), detainees may make direct calls (as opposed to collect calls) to courts or legal service providers within eight hours of making such a request, DOM, supra note 47, § 16(III)(E), and may meet seven days a week, including holidays, with current or prospective legal representatives for eight hours a day on regular business days and for four hours on holidays and weekends, id. § 17(III)(I)(2).
148. Private consultation rooms are to be made available for legal visits, documents may be exchanged but will be inspected (although not read), id. § 17(III)(I) (9)-(10)
149. However, for those in expedited removal, confidentiality will only be ensured during legal visitation hours, not if the visit is made during general visitation hours, id. § 17(III)(J)(4)-(5).
150. See generally Families for Freedom v. Napolitano, No. 08-CV-40567 (S.D.N.Y. filed Apr. 30, 2008) (pending lawsuit by two nonprofit organizations and two individual plaintiffs who filed suit requesting that DHS promulgate comprehensive, binding regulations governing detention standards for detained immigrants)
151. ACLU FOUND. OF S. CAL. & NAT'L IMMIGRATION LAW CTR., U.S. IMMIGRATION DETENTION SYSTEM: SUBSTANDARD CONDITIONS OF CONFINEMENT AND INEFFECTIVE OVERSIGHT 1 (2007) ("The U.S. government has failed to promulgate binding minimum standards for the conditions of confinement for detained immigrants. In addition, it has failed to ensure that detention facilities comply with the nonbinding standards that exist.").
152. Varick Federal Detention Facility - New York, NY, http://www.ice.gov/pi/ dro/facilities/varick.htm (last visited Oct. 3, 2009).
153. These facilities include Elizabeth Detention Center and jails in the following counties: Bergen, Essex, Middlesex, Monmouth, and Newton. See Detention Watch Network, http://www.detentionwatchnetwork.org/dwnmap (last visited Oct. 3, 2009). Sussex County Jail also houses detainees.
154. See Detention Watch Network, http://www.detentionwatchnetwork.org/dwnmap (last visited Oct. 3, 2009). Sussex County Jail also houses detainees. See Press Release, ACLU-NJ, Immigration Detention Report Outlines Concerns of Abuse (May 15, 2007), http://www.aclunj.org/news/immigrationdetentionreport.htm.
155. Sussex County Jail, located at 41 High Street, Newton, NJ 07860, is not accessible by public transportation according to Google Maps, http://maps.google.com/ (last visited Oct. 8, 2009). Similarly, Monmouth County Jail, 1 Waterworks Road, Freehold, NJ 07728, would require two walks and two buses, totaling two hours, to reach it from the Varick Street Immigration Court. Id.
156. This is, for example, the distance between Monmouth City Jail and Sussex City Jail.
157. Specifically, the DOM says, "The facility shall not require indigent detainees to pay for the types of [legal] calls listed above if they are local calls, nor for non-local calls if there is a compelling need. The facility shall enable all detainees to make calls to the INS-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party." DOM, supra note 47, § 16(III)(E). However, in practice this generally means respondents pay extremely high fees for calls.
158. See, e.g., NPR Broadcast, supra note 74 (respondent states that he had to pay twenty-five dollars for fifteen minutes on the phone).
159. See supra Part I.D and accompanying text.
160. Most legal screenings of detainees will also require follow-up factual investigations and/or legal research to determine the viability of potential legal defenses that often involve unsettled issues in this rapidly developing area of law.
161. In addition, EOIR has, of late, taken some admirable steps to encourage pro bono representation. See generally U.S. Dep't of Justice, EOIR Legal Orientation and Pro Bono Program, http://www.usdoj.gov/eoir/probono/probono.htm (last visited Oct. 8, 2009)
162. Memorandum from Chief Immigration Judge David Neal to All Immigration Judges and Court Officials (Mar. 10, 2008) (on file with the Fordham Law Review) [hereinafter Neal Memo].
163. The basis for such grants is an EOIR memorandum that instructs immigration judges to provide reasonable accommodations to pro bono counsel in order to facilitate their representation. Neal Memo, supra note 90.
164. See N.Y. UNIV. CHAPTER OF THE NAT'L LAWYERS GUILD, supra note 10, at 16 (noting "several" attorneys failed to attend hearings, turned in poor work, were unprepared, or had not met with the client prior to the hearing date, or engaged in unprofessional conduct, including two instances where the attorney had accepted payment but did not appear at the hearing).
165. Notably, some of the immigration judges interviewed for this report cited recent improvements in this area. See Interview with Immigration Judge, in N.Y., N.Y. (Feb. 9 & 13, 2009).
166. 8 U.S.C. § 1226(c) (1) (2006).
167. See In re Kotliar, 24 I. & N. Dec. 124, 126 (B.I.A. 2007)
168. In re Joseph, 22 I. & N. Dec. 799, 806 (B.I.A. 1999).
169. See In re Rojas, 23 I. & N. Dec. 117, 136-37 (B.I.A. 2001)
170. In re West, 22 I. & N. Dec. 1405, 1410 (B.I.A. 2000).
171. See In re West, 22 I. & N. Dec. at 1408.
172. In re Saysana, 24 I. & N. Dec. 602, 608 (B.I.A. 2008).
173. In the alternative, Congress could amend INA § 236(c) to clarify that DHS's broad reading is incorrect and to restore greater discretion in detention decisions.
174. DHS could also realize significant cost savings with the reduced detained population.
175. It is worth noting that the statutory text of INA § 236(c), commonly referred to as the mandatory detention law, uses the word "custody," not "detention," and that such alternative supervision models have, in other contexts, been held to constitute custody.
176. See, e.g., Yong v. INS, 208 F.3d 1116, 1118 n.1 (9th Cir. 2000). Accordingly, it should not take an act of Congress for DHS to move toward utilizing alternative supervision models in mandatory detention cases.
177. See supra Part II. D.i.
178. In re Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999).
179. In the interim, while respondents in New York cases are still being housed in New Jersey, DHS should allow such detainees to be produced upon request at the Varick Street Facility or Immigration Court for attorney visits.
180. The bill, entitled Immigration Oversight and Fairness Act, provides in pertinent part, (D) LOCATION OF FACILITIES- Detention facilities shall be located, to the extent practicable, within 50 miles of a city or municipality in which there is a demonstrated capacity to provide competent legal representation by nonprofit legal aid organizations or other pro bono attorneys to detained noncitizens, including asylum seekers and other vulnerable immigrant populations. The Secretary of Homeland Security shall seek to use only facilities within the stated 50 mile radius by January 1, 2012.
181. H.R. 1215, 111th Cong. § (3)(b) (4)(D) (2009).
182. See also DHS Press Release, supra note 9.
183. This is especially appropriate since DHS is systematically undermining the authority of the immigration courts to make appropriate venue determinations by failing to comply with the statutory requirement to list the time and place of proceedings on the initial charging instruments. See supra note 70 and accompanying text. If DHS listed the local New York immigration court, it would then have to make change of venue motions in order to transfer cases.
184. 8 C.F.R. § 1003.19(c) (1) (2009).
185. 2 IMMIGRATION COURT PRACTICE MANUAL, supra note 19, at 123.
186. See 8 U.S.C. § 1226(a) (2)(A) (2006). While it may seem extreme to have the merits of the bond determination turn on DHS's failure to produce a respondent, there is ample precedent in immigration practice for such an approach. For example, in removal proceedings, failure of a respondent to attend a hearing results in an in absentia removal order being entered against the respondent.
187. Id. § 1229a(b) (5)(a).
188. See supra notes 81, 87.
189. Nearly every section begins with a statement that the state or local government facilities used through the Intergovernmental Service Agreements (IGSAs) "may find such procedures useful as guidelines. IGSAs may adopt, adapt or establish alternatives to, the procedures specified for SPCs/CDFs [Service Processing Centers/Contract Detention Facilities]." DOM, supra note 47.
190. See generally Families for Freedom v. Napolitano, 628 F. Supp. 2d 535 (S.D.N.Y. 2009).
191. The manual deals with many issues beyond attorney client communication and access to legal materials, including, healthcare. While beyond the scope of this inquiry, the failure of the immigration detainee healthcare system has recently garnered considerable public attention.
192. The manual deals with many issues beyond attorney client communication and access to legal materials, including, healthcare. While beyond the scope of this inquiry, the failure of the immigration detainee healthcare system has recently garnered considerable public attention. See Nina Bernstein, Immigrant Detainee Dies, and a Life Is Buried, Too, N.Y. TIMES, Apr. 2, 2009, at A1
193. Dana Priest & Amy Goldstein, System of Neglect as Tighter Immigration Policies Strain Federal Agencies, The Detainees in Their Care Often Pay a Heavy Cost, WASH. POST, May 11, 2008, at A1;
194. Nina Bernstein & Margot Williams, Immigration Agency's Revised List of Deaths in Custody, N.Y. TIMES ONLINE, Apr. 2, 2009, http://www.nytimes.com/ 2009/04/03/nyregion/03detainlist.html?-r=1. Universal enforceable detention
195. DOM, supra note 47, § III. E (on telephone access).
196. See, e.g., Inmate Locator, supra note 78.
197. See supra note 83 and accompanying text.
198. See supra Part I.D.
199. See supra notes 19-25 and accompanying text.
200. There is a provision of the INA that provides, In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose. 8 U.S.C. § 1362 (2006). Some have read this provision as prohibiting federal expenditure of money on immigration representation. However, the text of the statute does not provide such a broad rule. First, the section only purports to preempt any claim of a right to appointed counsel. The plain language does not prohibit a federal agency, in its discretion, from providing representation. Second, the provision only relates to representation "[i]n any removal proceedings." 8 U.S.C. § 1362. Accordingly, it does not appear to pertain to brief advice and counseling and legal screening of detainees by attorneys who do not enter appearances in removal proceedings. Indeed, a memorandum recently issued by two former General Counsels for the Immigration and Naturalization Service specifically considers this issue and concludes that under general appropriations law principles, federal agencies involved in administering the immigration laws have the discretion to expend appropriated funds to pay for legal representation because such funding could support and further important agency interests. Expenditures to increase representation rates for indigent individuals in removal cases would serve the purposes of the agencies' general appropriations by leading to more efficient immigration court proceedings, reduced detention costs, and better-informed decision making by Immigration Judges and the Board of Immigration Appeals. Memorandum from Bo Cooper & Paul Virtue, former INS Gen. Counsels to Oren Root, Vera Inst. of Justice, Federal Funding for Direct Representation of Indigent Aliens in Immigration Proceedings (Mar. 31, 2009) (on file with the Fordham Law Review)
201. see also Memorandum from David Martin, Gen. Counsel, INS to T. Alexander Aleinikoff, Executive Assoc. Comm'r for Programs, INS, Funding of a Pilot Project for the Representation of Aliens in Immigration Proceedings (Dec. 21, 1995).
202. See supra notes 19-25 and accompanying text.
203. IMPROVING EFFICIENCY, supra note 8.
204. VERA INST. OF JUSTICE, LEGAL ORIENTATION PROGRAM: EVALUATION AND PERFORMANCE AND OUTCOME, MEASUREMENT REPORT PHASE II, at iv (2008), available at http://www.vera.org/download?file=1778/LOP%2Bevalution-updated%2B5-20-08.pdf.
205. Vera INST. Of justice, legal orientation program: evaluation and performance and outcome, measurement report phase II, Id.
206. Vera INST. Of justice, legal orientation program: evaluation and performance and outcome, measurement report phase II, Id. at iv.
207. See supra notes 15-18 and accompanying text.
208. There are strong arguments that due process requires the appointment of counsel, at least in the situations of particularly vulnerable respondents, if not as a general matter in removal proceedings. See, e.g., Stacy Caplow, ReNorming Immigration Court, 13 NEXUS 85, 100-01 (2008)
209. Devon A. Corneal, On the Way to Grandmother's House: Is U.S. Immigration Policy More Dangerous Than the Big Bad Wolf for Unaccompanied Juvenile Aliens?, 109 PENN ST. L. REV. 609, 646 n.212 (2004)
210. Mark T. Fennell, supra note 31
211. Sharon Finkel, Voice of Justice: Promoting Fairness Through Appointed Counsel for Immigrant Children, 17 N.Y.L. SCH. J. HUM. RTS. 1105 (2001).
212. See 8 C.F.R. § 1001.1(f) (2009).