Former Immigration Judge: Every Immigrant Deserves a Lawyer

Sarah Burr, May 28, 2017 - "As a former immigration judge in New York, I have come to understand a difficult truth first-hand: Far and away, the greatest obstacle to administering justice in immigration proceedings is the fact that, unlike in criminal proceedings, people have no right to an attorney.

Which means that every year, across the country, thousands of immigrants — most of whom are hard-working, taxpaying, contributing members of society — face the prospect a lifetime of exile from their homes, families and livelihoods in the United States without the aid of counsel.

It is hard to overstate what an obstacle that lack of representation can be for those immigrants. The Department of Homeland Security, the agency representing the government, has attorneys prosecuting every immigration case — which is why they win, almost every time, when the immigrant has no lawyer.

Yes, judges have the obligation to aid unrepresented immigrants by explaining their rights to them and informing them of potential relief from deportation But a judge is not an advocate and cannot investigate the facts of the case, interview witnesses, assemble exhibits and research legal arguments — all of which a competent attorney does in the course of representation.

Under these circumstances, especially when taking into account frequent language barriers immigrants face, it is impossible to level the playing field where one party has no lawyer.

This situation took a dramatic turn for the better in 2011, at least here in New York City. That year I joined the steering committee of an ambitious project to improve access to justice for immigrants facing deportation in New York City. We developed a blueprint for what became the New York Immigrant Family Unity Project — the nation’s first public defender system for detained immigrants.

Over the last three years, NYIFUP has guaranteed that every indigent immigrant who is detained and facing deportation in New York City will have a city-funded lawyer. I witnessed a sea change in the quality and quantity of legal representation in the detained court.

The success rate for immigrants represented by counsel has increased tenfold. And when immigrants have no viable claim for relief and are able to consult with an attorney, they can simply accept an order of deportation, sparing themselves extended detention and the government extra expense.

This exceptional program is now threatened by Mayor de Blasio, who promises to put money in the budget to support it — but is attaching new and unworkable strings to the aid. He wants to exclude some immigrants because of past criminal convictions, which would move away from a true public defender model of universal representation. This would be a dramatic mistake and a step backward for immigrant justice.

I understand the mayor’s feeling that deportation is appropriate for some people with serious criminal convictions. Indeed, the law dictates that the nature of an immigrant’s criminal record, if any, is a significant factor in determining whether someone should be deported. I have ordered many people deported during my time on the bench, oftentimes because of the seriousness of their criminal record.

But the question of who should or should not be deported is separate from who should or should not get a lawyer. Everyone deserves a lawyer to prepare their best case for the judge, who then makes the ultimate decision on deportation.

I also understand the mayor’s desire to direct more resources to non-detained immigrants facing deportation. It would be ideal to provide all indigent immigrants facing deportation with a lawyer, and perhaps someday we will get there."