Latin Times - Nov 07, 2013

Like the other 13 detainees set to appear before an immigration judge on Wednesday afternoon, Maximiliano Ortiz had been roused in the wee hours of the morning from his cell in a county jail.  Facing the judge at the Varick Street Immigration Court in Lower Manhattan, clothed in an orange jumpsuit, he looked groggy. 

"Are you arriving at this decision voluntarily?" the judge asked.  The interpreter translated the question into Spanish. 

"Yes," said Ortiz, and shortly afterward, having agreed to concede the charge of "entry without inspection" and accept an order of removal from the country, the first of about 190 poor, detained immigrant to receive pro bono legal representation via the city of New York was escorted out of the courtroom, chains jangling at his wrist and waist. 

On Wednesday, a coalition of seven public defender, legal advocacy and community activist groups unveiled the New York Immigrant Family Unity Project (NYIFUP), the first program in the nation to win public funding for legal defense of detained immigrants who cannot afford to hire lawyers.  In June, the New York City Council appropriated $500,000 for the pilot, which organizers say will be enough to meet about 20 percent of each year's need.  Under the program, detainees whose income falls at no more than 200 percent of the federal poverty line can receive pro bono legal counsel from New York Immigrant Defenders, which consists of public defender offices The Bronx Defenders and Brooklyn Defense Services. 

Organizers of the project trace its descent to the efforts of Second Circuit Court of Appeals Judge Robert Katzmann, who in 2010 commissioned two separate studies of detained immigrant representation in the city.  The odds those reports gave detainees were dim: of the 4,818 detainees who had to argue their case from 2005 to 2010, one found, only 3 percent of them did it successfully, compared to 74 percent of those who were represented and weren't held in detention in the time leading up to their appearance.  A separate study carried out previously by the City Bar Justice Center concluded that 39.2 percent of the 400 detainees it interviewed had "possibly meritorious claims for various forms of relief from removal". 

Immigration law is one of the most notoriously complex types, comparable to tax law.  But Lisa Schreibersdorf, founder and executive director of Brooklyn Defense Services, says detainees could win the right to remain in the country through a wide range of ways.  Some have status and don't know it.  "We had a kid who came to the country when he was two with his mom and dad.  The parents got separated, and he went to live with his mom.  His dad became a citizen before the kid turned 18.  Now, that's automatic citizenship for the child, but the kid didn't know.  When he was being interviewed by immigration officials, they'd ask if he was documented and he'd say, 'no'.  So off he goes."

Others who have green cards or visas might be able to stay because of a US citizen spouse; those without papers might be able to receive legal status of some sort - for example, victims of domestic violence or trafficking could apply for U or T visas, or young people who grew up in the US could apply for DACA. 

"People sometimes don't know, or they don't follow through and do it," she said.  "Even now that they're facing deportation, it's not too late.  You can still apply for those things, and that should actually negate the deportation proceeding.  That's really where I think most of the benefit is going to come from."

"Then there's the low-level criminal cases where deportation is not required and the judge has the ability to cancel the removal.  In that situation, a lawyer's very helpful because they explains to the judge what's going on with that family.  It's very hard for an individual who's unrepresented to know what to tell the judge, what kind of things are going to help them.  Plus it's very hard for people to speak in public.  That's what we're good at." 

On Wednesday, 10 of the 14 detainees who showed up for their initial court hearings were represented by lawyers provided by one of the two groups.  All of them were from Latin American countries.  Marianne Yang, the director of the immigration unit at Brooklyn Defense Services, says they expect demographics of clients to vary.  But according to Transactional Records Access Clearinghouse(TRAC), a database of information obtained from Immigration and Customs Enforcement (ICE) and other federal agencies, out of the top ten most common nationalities, eight of them are in Latin America.  The most typical profile for a detainee in NYC's immigration system is a Mexican (26 percent of all nationalities; Dominicans make up another 15 percent) who has been charged with "entry without inspection" -- a charge which accounts for about 47 percent of all detainees and some 89 percent of those who are from Mexico. 

Immigration and Customs Enforcement (ICE) officials say the agency only goes after immigrants who fit in its priority categories: someone who has committed serious crimes while in the US lawfully, people who crossed the border illegally in recent times and has few community ties, and "egregious immigration violators", or those have committed fraud or violated immigration law on multiple occasions.  But organizers point to the case of Carlos Rodríguez Vásquez, a 27-year-old cook from the Dominican Republic and husband to a US citizen wife who was arrested by the NYPD for "trespassing" in the apartment building of a friend in Washington Heights.  "In court, they dropped the charges right away, because I'd never had any kind of trouble with the law," he said.  But he'd never filed the paperwork to declare his marriage to his wife in the United States, and the NYPD passed him off to ICE, which transferred him to a detention facility in Hudson County, New Jersey. 

His family shelled out for a lawyer.  But when his case went before a judge, Vásquez says, "The lawyer I hired made me sign a voluntary deportation agreement without talking to me about it, without me knowing."  He ended up calling the Northern Manhattan Coalition for Immigrant Rights, which helped him win a retrial, but not before remaining in detention for an additional eight months.

In a report released on Thursday, the project's organizers argue that it makes good financial sense for the public, saying it will save New York state nearly $1.9 million per year in public health insurance spending, foster care services, and lost tax revenues.  It also says it'll help employers save $4 million annually which they lose through turnover when immigrants are forced to leave their jobs.  "Taken together," the report says, "these savings offset the majority of the investment needed to establish he program."

"It's presented as something which is just for immigrant families," said Brittny Saunders, senior staff attorney at the Center for Popular Democracy. "But in reality it's for everybody."

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