By Kirk Semple
They are often poorly prepared or make incoherent arguments in court. Some fail to present key evidence or witnesses. Others simply do not show up.
The performance of many lawyers who represent immigrants facing deportation in New York has long been considered mediocre. But in a new report that seeks to measure the extent of the problem, immigration judges themselves step forward and offer a scathing assessment of much of the lawyering they have witnessed in their courtrooms.
Immigrants received “inadequate” legal assistance in 33 percent of the cases between mid-2010 and mid-2011 and “grossly inadequate” assistance in 14 percent of the cases, the judges said. They gave private lawyers the lowest grades, while generally awarding higher marks to pro bono counsel and those from nonprofit organizations and law school clinics.
The study was conducted by a group of lawyers and researchers under the auspices of Robert A. Katzmann, a federal appellate judge in New York City. A year ago, they began sifting through government data and surveying immigration judges in an attempt to measure the quality and availability of legal representation for immigrants facing deportation.
Their report will be published this week in the Cardozo Law Review, a publication of the Benjamin N. Cardozo School of Law at Yeshiva University in Manhattan.
“We began this effort with an intuitive sense of the scale of the problem,” the report says. “The numbers sadly bear out that intuition in the starkest form.”Judge Katzmann blames predatory lawyers who are not familiar with immigration law for much of the poor representation. The immigrants who hire them often do not speak English and are unfamiliar with the court system, making them particularly vulnerable.
“They are easy prey for ambulance-chasing-style lawyers who do not adhere to the highest standards of responsibility,” said the judge, who for several years has been pushing for better legal representation of immigrants in New York.
For the judges’ survey, researchers polled judges in five immigration courts — three in New York City and two in the northern suburbs — about the representatives who appeared before them. All but 2 of the 33 sitting judges at the time participated in the investigation.
While much legal representation in New York immigration courts is shoddy, the report found that many immigrants do not have representation at all. (Unlike in criminal courts, respondents in immigration courts are not entitled to court-appointed lawyers.)
Immigrants in 27 percent of cases between October 2005 and July 2010 appeared in court without a legal representative, according to the report. For detained immigrants, 67 percent appeared alone before a judge.
The report found that immigrants’ fate can depend largely on whether they can find legal representation: About 67 percent of all immigrants with counsel during that five-year period had successful outcomes in their cases, while only 8 percent of those without lawyers prevailed.
Where detainees were held also appeared to make a considerable difference in their cases. Nearly two-thirds of those detained in New York are sent to detention centers out of state, often as far away as Louisiana and Texas. Yet only 21 percent of detainees transferred out of New York between October 2005 and July 2010 received representation, the report said.
Even a short transfer to New Jersey can have a considerable impact, the researchers found. Among immigrants transferred to Newark, only 22 percent had representation.
Judge Katzmann’s study group said this was a significant finding because immigration authorities were expanding detention capacity in Newark to hold detainees from around the region.
“It’s hard to get New York lawyers to go to New Jersey and do those cases,” said Peter L. Markowitz, a clinical associate professor at the Cardozo law school and chairman of the research team that produced the report. “To take a day to go do a case out in Newark is just disruptive to their practice and not worth it to them.”
The Obama administration has acknowledged the problem of inadequate representation. In 2009, immigration officials announced plans to overhaul the detention system, including providing more detention capacity in and around cities with large immigrant populations, like New York, so detainees are closer to their families and lawyers.
While immigration officials recently closed a detention center in Lower Manhattan, they are planning to double detention capacity in Newark. The study group’s report, however, did not address the potential impact of these proposed changes.
The report also did not consider the potential impact of a new Obama administration plan to review all pending deportation cases in the immigration courts and to train enforcement agents and government lawyers in the use of new prosecutorial guidelines. The plan is intended to unclog the immigration system and to focus the government’s deportation efforts on convicted criminals.
“I’m somewhat skeptical still of that process,” Mr. Markowitz said. “Skeptical but hopeful.”He added:
“Meaningful prosecutorial discretion on the front end is something that could have a real impact.”Judge Katzmann’s group is currently in the midst of another project: to develop a system that would guarantee competent legal representation for all immigrants facing deportation. The group hopes its project will provide a model for the rest of the country.
“Having the data means that we can think sensibly about how to address this dire crisis,” the judge said.
New York Immigrant Representation Study (NYIRS)