New York’s Proposed Right-To-Counsel Law for Deportation Cases

by Hannah Dean, Staff Writer

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The New York State Legislature is currently considering the Access to Representation Act, or Senate Bill S81B, which would require the state to appoint an attorney for every person with a case before an immigration judge or with a reason to appeal a prior deportation order, as well as some immigrants who meet specific income requirements.[1] Although the bill builds off the New York Immigrant Family Unity Project, a program launched in 2013 that provides public funding for representation for detained individuals facing deportation, it would be the first legislation in the state and the country to codify the right to an attorney in deportation proceedings.[2] Deportation cases, along with all other immigration cases across the country, are civil proceedings and therefore involve no guarantee of representation for those who cannot afford it. Yet the defendants in these cases often face incredibly high stakes, including potential family separation, uprooting their life in the U.S., or repatriation to a home country that they fled in fear of persecution or violence.[3]

Nearly a third of individuals with pending immigration proceedings in New York lack representation.[4] Advocates who assisted in drafting the bill note that those without representation in immigration court face a trained government lawyer advocating against them, as well as a lack of proper translation services which makes it difficult to understand the charges.[5] Immigration law is incredibly complex and may experience changes with each new presidential administration, further complicating a pro se respondent’s ability to advocate for themselves.[6] In tandem, these factors often create a steep uphill battle in an individual’s effort to win their case. The Vera Institute of Justice found that access to representation for detained individuals through the New York Family Unity Project led to a 48 percent success rate for those detainees in their deportation proceedings as opposed to a four percent success rate before the program’s implementation.[7]

If passed, this bill would secure $55 million for legal services in its first year, and funding would increase each year until its complete implementation by year six.[8] Advocates in support of the bill argue that the yearly increase in funding is necessary to help hire enough attorneys, social workers, and support staff to take on pending cases.[9]

The Access to Representation Act was first introduced in 2020, but stalled and ultimately did not pass.[10] Supporters of the current version of the bill, including State Senator Brad Hoylman, note the timeliness of its proposal, given the high number of border crossings this year and the transport of thousands of immigrants from southern states like Texas and Florida to northeastern cities, including New York.[11] The New York Bar Association and the American Bar Association have also advocated for the creation of a federally funded access-to-counsel system for immigrants without representation.[12] The ABA notes on its immigration policy page that on a national basis, only 37 percent of all immigrants in proceedings and only 14 percent of detained immigrants receive representation in their cases.[13] However, that idea has not yet gained traction at the federal level.

The Access to Representation Act is currently undergoing review by the Senate Finance Committee.[14] If passed, it could provide a blueprint for access to counsel for immigrants in other states or at the federal level, just as the New York Family Unity Project did for providing public funding for representation.

[1] Marco Poggio. NY Seeks First-In-The-Nation Right to Counsel in Deportations. Law360. (Oct 14, 2022, 8:20PM EDT).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.


[13] Id.


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