Lawyers Target 'Assembly Line' Practice, Abuse of Poor ImmigrantsFordham Law School in The New York Law Journal, January 04, 2010
A movement in the New York legal community to increase pro bono representation of indigent immigrants and weed out incompetent or unscrupulous lawyers who prey on them is gathering momentum.
A group of some 40 to 50 lawyers has been meeting regularly to analyze what is widely regarded as a broken system where many indigent immigrants lack the information and advice they need about asylum applications and other immigration procedures.
The meetings, held periodically at the federal courthouse, were initiated by 2nd Circuit Judge Robert Katzmann, who has made addressing the unmet needs of the immigrant poor his signature issue.
"This is a unique effort, and it's the kind of effort that can be replicated in other circuits." Judge Katzmann said in a recent interview. "You have lawyers, as part of their responsibility to the larger community, willing to roll up their sleeves and think conceptually about how to best improve the delivery of services to the poor."
Judge Katzmann used a February 2007 lecture at the New York City Bar to enlist lawyers in that effort. He said that in response to his comments, groups such as the Federal Bar Council and the American Bar Association sharpened their focus on immigration issues, and law schools created immigration clinics.
But to further press the issue, Judge Katzmann, along with Southern District Judge Denny Chin, began convening small groups of lawyers from large and small firms, agencies and universities, at 500 Pearl St. in Manhattan every six weeks to brainstorm on how to increase pro bono representation in the 2nd U.S. Circuit Court of Appeals.
Asylum cases regularly swamp the circuit's docket, and some lawyers practice what has been called "assembly line" immigration law, representing hundreds of clients, sometimes poorly.
The study group's ideas for improving representation and attracting more attorneys to the campaign were explored during a March 2009 forum at Fordham Law School.
Afterward, the study group broke into three subcommittees, one to focus on increasing pro bono activity, a second to look at "improving the delivery of services to the immigrant poor" and a third to address inadequate or unethical representation.
The conclusions of the three subcommittees, plus additional commentary, are presented in the November Fordham Law Review: "The Robert L. Levine Distinguished Lecture, Overcoming Barriers to Immigrant Representation: Exploring Solutions." The materials considered by the study group can be seen at http://law.fordham.edu/fordham-law-review/15905.htm.
The pro bono subcommittee's report, "The Representational and Counseling Needs of the Immigrant Poor" found that "demand outstripped capacity at all levels" for services, including initial counseling of immigrants, the delivery of applications for immigrant benefits, the filing of appeals and responding to notices of removal or deportation.
The demand, the subcommittee said, "has achieved near-crisis proportions," and has been exacerbated by increases in workplace raids and other enforcement activities by the U.S. Immigration and Customs Enforcement.
The subcommittee concluded that, short of a dramatic rise in funding at all levels or possible reforms such as permitting appointment of counsel paid for by the government, any increase in the recruitment, training and supervision of more lawyers must come from nonprofit legal service organizations, bar groups, local lawyers, law schools and the generosity of public and private contributors.
The report also lists testimonials from major law firms that helped secure relief for immigrants who were appearing pro se and highlights clinical programs at law schools in New York and Connecticut.
The pro bono report was produced by Jennifer L. Colyer, special counsel and pro bono counsel at Fried, Frank, Harris, Shriver & Jacobson; Robert Juceam, of counsel at Fried Frank; Sarah French Russell, the Liman program director at Yale Law School; and Lewis J. Liman, a partner with Cleary Gottlieb Steen & Hamilton.
The second subcommittee report on improving service delivery, "The Immigration Representation Project: Meeting the Critical Needs of Low-Wage and Indigent New Yorkers Facing Removal," was written by Jojo Annobil, attorney in charge of the immigration law unit at the Legal Aid Society and an adjunct clinical professor at New York University School of Law.
Ms. Annobil said that the dramatic increase in enforcement actions against "asylum seekers, undocumented immigrants and permanent residents with criminal convictions and other immigration violations has resulted in a deepening due process crisis."
A second report from the subcommittee on improving service delivery, "Barriers to Representation for Detained Immigrants Facing Deportation" presents a case study on problems facing immigrants detained at the Varick Street Detention Facility in Manhattan and addresses the problems facing overwhelmed immigration judges who deal with thousands of pro se litigants, and, the "cancer of disreputable elements of the immigration bar."
The author of that report, Peter L. Markowitz, assistant professor of law at Benjamin N. Cardozo School of Law, emphasized that one of the problems "at the heart" of the immigration representation crisis is that there is no right to counsel in immigration proceedings.
The third subcommittee report, "Regulating Immigration Legal Service Providers, Inadequate Representation and Notario Fraud," addresses the exploitation of immigrants.
"Immigrants are often easy prey for bogus or incompetent attorneys, 'notarios,' scam artists, and other bad actors who take advantage of immigrants' limited knowledge of U.S. law, lack of English fluency, and lack of cultural knowledge to charge exorbitant fees for wild promises of green cards and citizenship that the bad actors cannot, and in some cases never intended to, deliver," wrote Careen Shannon, of counsel at Fragoman, Del Ray, Bernsen & Loewy.
But this exploitation, she said, "is merely a symptom" of the larger problem of inadequate access to competent legal counsel, and Shannon advocates several changes to local, state and federal law and policy to help improve that access. Among the changes recommended is a toughening of the law on the unauthorized practice of law, by, for example, making it a felony.
Also among the study group's efforts has been a focus on training. The group convened a meeting of legal service providers and community organizations at Cardozo in April 2009 to assist in the training and placement of deferred and furloughed law firm associates.
That was followed by a September training session at Cardozo, and in October, the announcement by New York City Mayor Michael R. Bloomberg of a plan to partner with private law firms to send deferred associates into immigrant communities, as well as a $2 million city grant to support a team of supervising attorneys to train associates and provide technical support.
For Judge Katzmann, who said he has witnessed first-hand poor immigration lawyering in the 2nd Circuit, the idea behind the study group and the subcommittee reports is to raise awareness and build momentum for serious change.
There is much to do, he said, but the involvement of so many lawyers is a promising sign.
"As a judge who feels frustrated by all-too-inadequate counsel, it is encouraging and energizing to see this extraordinary group of lawyers so dedicated to urging the larger legal community to get involved in improving representation for immigrants," Judge Katzmann said.