Appointed Counsel & Due Process in S. 744: The NYC Bar Speaks Out

Mark Noferi

First, I’d like to thank Cesar for allowing me to guest blog this week. It’s been great to be involved as crImmigration has grown into the Internet’s most thoughtful analysis of crime and immigration issues. (You can also read my prior crImmigration posts on American Bar Association civil immigration detention standards, Moncrieffe v. Holder, and S. 744’s appointed counsel and detention provisions).

Today, I’ll start by summarizing recent amendments to appointed counsel and due process provisions in S. 744—largely under the radar in the reform debate (though I recently addressed this in an article on Slate)—and highlight the New York City Bar Association immigration committee’s advocacy work for stronger protections. Tomorrow, I’ll move on to detention-related provisions. Later this week, my co-author Robert Koulish and I will post on Immigration and Customs Enforcement’s (ICE’s) new risk assessment tool, which appears central to future detention decisions no matter what the outcome of reform. Although I summarize here some of City Bar’s positions, I speak here in my personal capacity.

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The Senate Gang of Eight’s immigration reform bill, a.k.a. S. 744, contained in its 844 pages some significant advances to increase due process and reduce detention, as César and myself previously summarized. The New York City Bar Association, through its Immigration and Nationality Law Committee, issued two strong, detailed letters on April 24 recognizing these advances, but proposing further reforms to expand appointed counsel, reduce detention, and help our immigration system better reflect American values. (The City Bar’s public statement is also here.)

Meanwhile, of the over 300 amendments Senators proposed on May 7, nine would together largely reverse S. 744’s advances on due process and detention: Sen. Charles Grassley’s (R-IA) Amendments 39, 40, 41, 42, 47, 48, 51, and 53 and Sen. Jeff Sessions’ (R-AL) Amendment 12. City Bar then provided detailed analyses of these nine amendments, filling an important gap in the public debate, and its members are meeting with House and Senate staffers in Washington, D.C. The Senate Judiciary Committee began to consider amendments on May 9, and will continue “marking up” the bill today. These detention and due process amendments are expected to be considered by May 24, along with the rest of S. 744’s Title III addressing interior enforcement.

I’ve been proud to join these City Bar efforts, led by Professor Lenni Benson of New York Law School, who chairs the Immigration Committee with indefatigable effort and a wealth of knowledge. (Most recently, Prof. Benson co-authored a report by the Administrative Conference of the United States that concluded additional representation would help unclog overwhelmed immigration courts.) Special thanks also go out to Wilmer Hale’s pro bono team of Nicole Feit, Sanhita Sen, Ellie Martin, and Jonathan Pressman for their unflagging advocacy, writing, research, and support. Comments and suggestions would be welcome, as we continue our advocacy.

I’ll provide brief summaries here of this advocacy and recent amendments—today, on appointed counsel and due process provisions, and tomorrow, on detention-related concerns.

Appointed Counsel

S. 744 took a groundbreaking step by voluntarily providing appointed counsel to immigrants in removal proceedings—albeit only to children, the mentally ill, and the vaguely-described “particularly vulnerable when compared to other aliens in removal proceedings.” (Sec. 3502(c), p. 569). Few disagree with counsel to the first two groups. Indeed, shortly after S. 744, DHS and EOIR agreed to provide appointed counsel to the mentally ill in response to federal court litigation. But the third category raises additional questions. Who exactly is a “particularly vulnerable” immigrant in removal proceedings? Asylum seekers? Detainees, 84 percent of whom lack lawyers? Perhaps more to the point, who is not “particularly vulnerable” in removal proceedings that by definition force an individual to argue—under Byzantine statutes, against a Government lawyer, often in a foreign language—whether he or she stays in America? Indeed, conducting ad hoc, case-by-case reviews of whether one is “particularly vulnerable” would itself likely exacerbate immigration court backlogs. (See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 50-51 (1981) (Blackmun, J., dissenting).)

City Bar’s letter recognized S. 744’s advance, but advocated a more inclusive approach—free counsel to all indigents in removal proceedings (including expedited removal), as well as those bringing humanitarian claims such as asylum, the Trafficking Victims Protection Reauthorization Act (“TVPRA”) or the Violence Against Women Act (“VAWA”).

Many supporting arguments may be familiar to this blog’s readers (or those of my article that advocated for appointed counsel to immigrant detainees). Deportation, although technically “civil,” involves much higher stakes than the typical civil proceeding-banishment from family, friends, livelihood, and property, or “all that makes life worth living.” For these reasons, the right to counsel in criminal cases now includes immigration advice, after Padilla v. Kentucky, 130 S. Ct. 1473 (2010), since deportation can be “the most important part” of a criminal conviction. Immigration proceedings also force a uniquely vulnerable population to litigate uniquely complicated issues. As Justice Alito stated in Padilla, “[N]othing is ever simple with immigration law.” And detention exacerbates the situation further, by depriving liberty, separating detainees from families, and frustrating any ability to meaningfully litigate a case.

Two particular arguments in City Bar’s letter warrant mention here. First, “there is no citizenship test for counsel in America.” We may forget this, since immigration proceedings are supposed to only involve non-citizens (theoretically). But when the U.S. or its states provide counsel, whether in criminal, civil, or military proceedings, we provide it to citizens and non-citizens alike. Put another way, the familiar Miranda words “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you” do not include “only if you are a citizen.” We do this because procedural safeguards reflect American values of fairness and due process, regardless of the defendant’s identity.

And the U.S. and its states already provide counsel in many high-stakes proceedings, whether criminal or civil. For example, 44 states now provide counsel in civil proceedings to terminate parental rights. Deportation too frequently results in the same outcome. So to provide counsel in immigration proceedings, like many other high stakes proceedings involving loss of liberty or children, would not be so groundbreaking. Rather, a greater break from tradition would be to leave immigrants without lawyers, thus imposing a de facto citizenship test for appointed counsel.

Secondly, based on Prof. Benson’s report, the City Bar letter argued that “providing counsel to indigent non-citizens saves the government money by 1) preventing unnecessary court proceedings, 2) reducing the amount of time non-citizens spend in detention, and 3) relieving the burden of government support to disrupted families.” Existing Legal Orientation Programs (“LOPs”) for detainees, in which advice is provided without full representation, have shortened case processing times for detainees by 13 days on average. Full representation would likely increase efficiency even further. City Bar recommended the creation of an independent immigration defender’s office, modeled on the federal public defender office, with direct granting authority that would provide the Executive Office for Immigration Review with an independent stream of income. (On that point, City Bar cited UCLA Law Professor Ingrid Eagly’s helpful new Yale Law Journal article Gideon’s Migration).

Unfortunately, no Senators have (yet) proposed amendments for a more universal right to counsel, even though counsel for immigrants draws strong, bipartisan support. In a recent poll, three-quarters of Americans, and two-thirds of Republicans, support ensuring that “immigrants can have legal representation if they face deportation.” Reasons for Senatorial reticence are unclear.

Meanwhile, several amendments scaled back S. 744’s provision of the right to counsel, and other due process improvements:

Grassley Amendment 40: This amendment proposes to make appointed counsel for children and the mentally ill discretionary, rather than mandatory. It also strikes the “particularly vulnerable” language altogether, as well as language providing funding for lawyers from the new immigration reform trust fund.

This Amendment makes little sense. As City Bar said, “There is no justification to force any children or mentally ill to defend themselves in court.” Moreover, case-by-case hearings to determine which children or mentally ill can purportedly defend themselves would be “inefficient, unfair, and useless without funding.” At risk of sarcasm, will U.S. immigration judges really hold hearings to determine how old a child must be before he or she can “play lawyer”? Eight? Ten? And at the end of the day, if immigration judges know that counsel won’t be paid for, immigration judges won’t appoint counsel. City Bar opposed this amendment.

Grassley Amendment 41: This Amendment eliminates the new proposed Office of Legal Access Programs, which would oversee the Legal Orientation Program (LOP). As noted, the LOP has made immigration proceedings fairer and more efficient for detainees, with benefits outweighing its costs. As City Bar pointed out, the Office of Legal Access Programs would institutionalize the LOP, and give it LOP independence from immigration courts, which avoids any appearance of impropriety. It is unclear what purpose this Amendment would serve, except to prevent the institutionalization of legal advice. Although City Bar recommended that Congress should go further than the LOP and provide universal appointed counsel, City Bar opposed this amendment.

Grassley Amendments 39, 48: These Amendments require the General Accounting Office (GAO) or Comptroller General to conduct a study of immigration courts’ workload before increasing immigration courts’ staff and resources, as S. 744 provides for.

These Amendments appear to be delaying tactics. The reports documenting extremely overloaded immigration courts have already been written—by Prof. Benson and the bipartisan Administrative Conference of the United States (137 pages); by the bipartisan American Bar Association (282 pages); and by the Appleseed Foundation (108 pages). As the Appleseed Foundation wrote, “Immigration Courts are so backlogged that in some places half-day hearings are being scheduled for 2015.” And when “DHS admits that its attorneys are ‘dodging bullets’ and a sitting judge testifies before Congress that her court system is broken,” it may be time for a “transformative fix,” let alone additional resources and funding. But additional resources and funding, without delay, would only help. City Bar opposed this amendment.

Grassley Amendment 42: This Amendment would keep in place procedures allowing for single-judge decisions by the Board of Immigration Appeals, and overturn S. 744’s proposal to return to the three-judge system.

In the 2000s, the Bush Administration allowed the Board of Immigration Appeals (BIA) to decide appeals in summary fashion by a single judge. Federal Circuit immigration appeals then exploded fivefold. Federal judges such as Second Circuit Judge Robert Katzmann and Seventh Circuit Judge Richard Posner criticized the poor quality of decisionmaking in immigration courts. The Second and Ninth Circuits hired extra staff attorneys, at extra costs, just to handle immigration cases. And as Prof. Benson related, the federal government’s Office of Immigration Litigation (OIL) appeals unit still seeks to remand, on its own initiative, one-quarter of federal Circuit appeals from the BIA because the records below are poor.

Returning to the three-judge system, as S. 744 proposes, is a common-sense move. Conversely, if enacted, Amendment 42 would instead reduce fairness, increase inefficiency, and increase the workloads on federal circuit courts, ultimately increasing costs to taxpayers and slowing down the immigration process for all. City Bar opposed this amendment. (See generally here Robert Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5-6 (2008), citing e.g. Lenni B. Benson, Making Paper Dolls: How Restrictions on Judicial Review and the Administrative Process Increase Immigration Cases in the Federal Courts, 51 NYLS L. Rev. 37 (2006).)

Tomorrow, I’ll explore the detention-related amendments to S. 744.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.