The Power of 1000: Updates from the Nation’s First Immigration Public Defender

By Andrea Saenz

The nation’s first public defender system for detained immigrants facing deportation, the New York Immigrant Family Unity Project (NYIFUP), recently marked an important milestone unimaginable just a few years ago: representing over 1000 clients since opening its doors as a pilot project in 2013. That’s 1000 New Yorkers and their families who would have faced permanent separation for no reason except their inability to afford counsel. Instead, they entered court with an outstanding lawyer by their side, courtesy of the NYIFUP service providers: the Bronx Defenders, Brooklyn Defender Services, and the Legal Aid Society. Last month, the program received a second year of full funding from New York City. As part of the coalition of organizations that advocate for NYIFUP, I couldn’t be prouder, and wanted to share the proof we are gathering that counsel makes all the difference.

Immigration court proceedings have been likened to “death penalty cases heard in traffic court settings.” Immigrants facing the possibility of removal risk losing their livelihood, separation from family members, and, in the most unfortunate cases, death.

Skilled legal representation helps ensure that people are guided through that high-stakes maze. The early data indicate that the presence of NYIFUP counsel increases a detained client’s chance of success in their removal case ten times over, or by as much as 1000%. As prior studies showed, detained, unrepresented immigrants have virtually no chance of winning their cases and avoiding deportation. This is little surprise given the incredible complexity of immigration law, especially the crim-imm charges facing many detained clients, the high evidentiary demands required to win a removal case, and the language and educational barriers many clients experience. Not to mention that a pro se detainee is required to face off against a trained ICE trial attorney.

NYIFUP changes the balance, and in the process has changed the very culture of the Varick Street Immigration Court, where New York City’s detained docket operates. More documents are exchanged. More bonds are negotiated. More challenges are brought to the government’s evidence and legal conclusions. Cases are litigated with full evidence packets, briefs, and experts. In short, zealous representation and actual adversarial litigation has become the norm, rather than the exception, at Varick Street, and because of that, dozens more immigrants are going home to their families and winning or keeping legal status.

Among the highlights:

• Nearly half of NYIFUP clients from the pilot phase have been released from detention, either through bond or parole or by winning their cases outright. This is an enormous achievement, as release returns a client to his or her family and multiplies his or her chance of eventual success in ongoing cases.
• More than a third of NYIFUP cases are completed at the first or second master calendar hearing, saving clients and the government weeks, months, or years of detention time. While many of these outcomes are clients accepting removal orders or voluntary departure, these orders are now coming after high-quality, compassionate advice about clients’ options, which is a huge benefit for all parties, including the judges who previously had to screen pro se detainees themselves. In addition, a few of these early completions are terminations based on obvious defects in the charges or evidence, which pro se detainees would never have noticed.
• NYIFUP attorneys have won over 2/3 of individual hearings, which are like trials on the merits of whether the client is able to stay in the U.S. – an incredible rate of success on a challenging detained docket, especially when you consider that NYIFUP does not screen for the best cases, but takes any and all viable cases to trial after consulting with the client.
• NYIFUP has represented clients in 49 out of New York City’s 51 Council districts – proof that the “immigrant community” means our entire city, and a reminder that keeping families and workers in the place they call home benefits all of our neighborhoods.

Importantly, NYIFUP attorneys do not just go to immigration court – they assist clients in all the collateral proceedings needed for their removal case, including criminal court, family court, applications for immigration and citizenship benefits filed with the U.S. Citizenship and Immigration Services agency, and more. Because these matters are essentially impossible for pro se detainees, NYIFUP has made a particular impact helping clients file direct criminal appeals or post-conviction motions, and helping clients pursue multi-step applications like Special Immigrant Juvenile Status, U visas, and more.

Perhaps the most promising update of all is that NYIFUP no longer stands alone. A small NYIFUP pilot program started last year for detainees at the Batavia Immigration Court in upstate New York, run by the Erie County Bar Association Volunteer Lawyers Project. This year, a NYIFUP-style universal representation program has just launched for New Jersey detainees, housed at the American Friends Service Committee. We hope to keep reporting this type of good news in the world of access to counsel, and to keep collecting data and stories proving that counsel for detained immigrants makes all the difference in producing real justice in the immigration courts.

Andrea Saenz is a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law.

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