New York Immigration Court – Page 4 – immigrationcourtside.com

IMMIGRATIONPROF BLOG: Three Cheers For NY! — State Becomes First To Guarantee Representation For All Detained Immigrants!

http://lawprofessors.typepad.com/immigration/2017/04/new-york-state-becomes-first-in-the-nation-to-provide-lawyers-for-all-immigrants-detained-and-facing.html

Dean Kevin Johnson writes:

“The Vera Institute of Justice and partner organizations today announced that detained New Yorkers in all upstate immigration courts will now be eligible to receive legal counsel during deportation proceedings. The 2018 New York State budget included a grant of $4 million to significantly expand the New York Immigrant Family Unity Project (NYIFUP), a groundbreaking public defense program for immigrants facing deportation that was launched in New York City in 2013.

New York has become the first state to ensure that no immigrant will be detained and permanently separated from his or her family solely because of the inability to afford a lawyer. Without counsel, a study shows, only 3% of detained, unrepresented immigrants avoid deportation, but providing public defenders can improve an immigrant’s chance of winning and remaining in the United States by as much as 1000%.

NYIFUP has been operating in two of the four affected upstate immigration courts on a limited basis since 2014 with funding from the New York State Assembly and the IDC. In the just-ended fiscal year, the funding was sufficient to meet less than 20% of the need upstate. In New York City, NYIFUP has been representing all financially eligible, otherwise unrepresented detained immigrants since 2014 with funding from the City Council.

Research has shown that keeping immigrant families together saves money for the state’s taxpayers in increased tax revenues and less need for families left behind to draw on the social safety net. New York State employers also receive significant economic benefits from avoiding the loss of productivity when their employees are detained and deported, and the consequent need to identify and train replacement workers.

The first public defender program in the country for immigrants facing deportation, the NYIFUP Coalition includes Vera, the Immigration Justice Clinic of Cardozo Law School, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York, and The Center for Popular Democracy. The Erie County Bar Association Volunteer Lawyers Project is a NYIFUP Coalition partner upstate. Brooklyn Defender Services, the Legal Aid Society, and The Bronx Defenders are Coalition partners in New York City.

Several cities and states, including Los Angeles, San Francisco, Chicago, Washington, D.C., and California have recently begun efforts to design similar programs.”

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Good for New York! I hope that other states follow suit.

Representation is the most important contribution that those “outside the system” can make to improving due process in the U.S. Immigration Courts. And, nowhere is it needed more than in often out of the way detention centers. As noted in the article, there is no doubt that representation makes a difference in outcome — a huge difference.

In fact, the statistical difference is so great that one might think that those officials responsible for the U.S. Immigration Court system would long ago have determined that no case could proceed in accordance with due process unless and until the respondent had a lawyer. But, that would be some other place, some other time.

In the meantime, let’s all be thankful for the outstanding example that New York has set!

PWS

04/10/17

In Memoriam: U.S. Immigration Judge Philip L. Morace — Scholar, Outstanding Jurist, Beloved Colleague, And Kind Compassionate Human Being

I am sad to announce the death on Friday, January 20, 2017, of one of the most admired and respected U.S. Immigration Judges, Hon. Philip L. Morace of the U.S. Immigration Court in New York, New York. Judge Morace was widely known by his colleagues, the government, the private bar, and the immigrant community as a gentleman, a scholar, an amazing colleague, and the very embodiment of the Immigration Court’s ideal of “through teamwork and innovation . . . guaranteeing fairness and due process for all.”

Judge Morace was educated at Fordham University and the Brooklyn Law School and served in private practice and with the U.S. Marine Corps before being appointed to the bench in September 1995. He was a member of the New York Bar.

Please join me in offering sympathy to Judge Morace’s family, his colleagues, and the New York immigration community on this great loss. Judge Morace’s inspiring example will be long remembered and emulated.

PWS

01/22/17

Sunny Thoughts On A Dreary Day In DC — Read More From WNYC/NPR Reporter Beth Fertig — The “New Due Process Army” Takes the Field — Bronx Defenders and Courtney M. Lee (Former Arlington Immigration Court Intern And Star Georgetown CALS Asylum Clinic & RLP Student) Work To Save Lives & Insure Due Process In Our Immigration Courts Every Day!

https://www.wnyc.org/story/free-lawyers-provided-city-help-more-immigrants-detention-win-cases/

Beth Fertig writes:

“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.

Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.

“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.

In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.

Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”

It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.

Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”

The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”

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Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro. Way to go, Courtney and Sarah!

These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.

Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14. There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.

They are all over: projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions. I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years. If we all keep at it and support one another it will eventually happen!

Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean. Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”). I wish I had gotten to know Shelly better. He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!

In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR. Accomplished attorneys, dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us. Both of them represent the true values of the real America: fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).

To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day! It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.

PWS

01/20/17

Why The U.S. Immigration Court In NYC Is Overwhelmed: Listen & Read WNYC/NPR Senior Reporter Beth Fertig’s Report (Quoting Me) Here! Without Reforms, Due Process Is In Peril! Why Not “Give Due Process A Chance?”

http://www.wnyc.org/story/why-new-yorks-immigration-courts-are-so-busy/

“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.

Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.

The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.

“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.

. . . .

Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.

. . . .

The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”

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To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.” As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.

And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.

I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions. With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court. By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.

In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client. But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.

Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system: the United States Immigration Courts? Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility, and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries. After all, the “vision” of the U.S. Immigration Courts is supposed to be: “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.” Why not “give due process a chance?”

PWS

01/17/17

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