The New York State Bar Association says the state is facing a crisis in the quality and availability of legal representation for immigrants in New York and has made recommendations for improvement — including written standards for immigration representation.
The report of the Special Committee on Immigration Representation cites a "dire" shortage of attorneys qualified in immigration issues, insufficient safeguards to protect immigrants from unauthorized or unqualified practitioners, and the need for more educational programs and pro bono participation to assist low-income immigrants.
"Individuals in immigration proceedings face mandatory detention, deportation, and often permanent expulsion from the United States because they lack competent legal representation," said Bar Association President Seymour W. James Jr. "New minimum standards for representation, along with statutory reform and adequate funding, will go a long way toward helping these individuals."
The report singles out amendments made to federal immigration laws in 1996 relating to terrorism and illegal immigration as having "contributed significantly" to the current crisis. "The 1996 amendments, which imposed draconian consequences on unsuspecting immigrants, have made the provision of competent legal representation an overwhelming and daunting task," the report states.
Immigrants subjected to immigration removal proceedings often cannot afford to retain adequate legal representation, do not know how to obtain it, or are ill-equipped to represent themselves, according to the report. Language issues and cultural differences may exacerbate the problems, leaving some non-citizens vulnerable to unscrupulous or unqualified representation.
The 49-page report was approved by the Association's House of Delegates at its June 23 meeting in Cooperstown. It calls for "significant statutory reform" and "sufficient funding" to address the problems.
The Association recommends a voluntary set of written standards for representation of immigration cases to complement existing rules and standards. Those standards include:
• Defining the role of representatives in immigration cases to ensure competent representation that requires clients to be adequately informed of their options for relief and defense.
• Establishing standards for training and experience, including mandatory Continuing Legal Education (CLE) courses and a regimen of training and course-related education specific to the area of immigration law.
• Limitations on caseloads that allow attorneys to satisfy their legal and ethical obligations and ensure that clients receive "competent, quality" representation.
The recommendations also outline attorney responsibilities regarding the scope of their representation and any potential conflicts, standards for imposition and collection of fees, and duties regarding maintenance of files.
The report also highlights the shortcomings of the Executive Office for Immigration Review's Recognition and Accreditation process. It also offers recommendations that ensure adequate training and oversight of non-lawyers providing direct services to vulnerable immigrants.
In addition, the report seeks to address the "acute shortage" of attorneys qualified in immigration representation in upstate New York, particularly for those incarcerated in rural upstate prisons. About 8.6 percent of state prison inmates are non-citizens. Most qualified immigration attorneys are concentrated in the larger cities, far from these upstate communities.
The association recommends efforts to boost representation through more pro bono service by attorneys; the distribution of pro se educational materials for inmates; legal training for attorneys sponsored by bar associations; fellowships; and other innovative measures such as videoconferencing for inmate screening and preparation of cases, and expanding the use of the Internet.
The 32-member committee, co-chaired by Jojo Annobil of New York City (The Legal Aid Society) and Joanne Macri of Albany (New York State Defenders Association), was appointed in 2011 by then-President Vincent E. Doyle III of Buffalo (Connors & Vilardo) to address the shortage of legal representation available in New York state. Committee members include prominent judges, educators, attorneys and advocates for inmates, immigrants and the poor.
The report is available online at www.nysba.org/immigrationreport.