Chapter Three

• Jurisdiction: New York

Chapter three

Innovations in Access to Counsel for Immigrants: Lessons from New York and Canada

Camille Mackler
Sarah Rogerson

I. Introduction

Lost amid the onslaught of the Trump Administration's restrictive immigration policies is the little known fact that, although immigrants have a right to seek counsel, there is no system of mandated representation for immigrants at the federal level. As a result, immigration punishment is applied with little regard to the rights of the accused. Recently, this gap in representation as it applies to unaccompanied children has been the focus of several mainstream media outlets. According to the reporting, children as young as two or three have appeared pro se in immigration court to defend themselves against attorneys and judges employed by the Department of Justice to deport them.⁹⁷ This is in spite of studies showing that individuals navigating the immigration labyrinth in the United States are far more likely to succeed if they have an immigration attorney guiding them compared to those who try it alone.⁹⁸ The data reveal a staggering decline in the outcomes of cases where the individual is unrepresented and in which the Government is actively seeking to deport them in an Immigration Court, referred to in the law as "removal proceedings."⁹⁹ Detained immigrants, and those formerly detained who were released, represented by counsel were respectively ten-and-a-half times and five-and-a-half times more likely to succeed in removal proceedings than their than unrepresented counterparts.¹⁰⁰

As the Co-Chairs of the New York State Bar Association's Committee on Immigration Representation, our mission is to mobilize our profession to identify gaps in legal services to immigrants statewide and champion high quality, cost-effective solutions, beyond pro bono efforts. Absent comprehensive immigration reform in Congress, we are unlikely to see mandated representation written into immigration laws. Additionally, recent efforts to litigate the matter on behalf of unaccompanied minors have fallen short.¹⁰¹ But in this era of "New Immigration Federalism,"¹⁰² state and local governments may be best suited to identify solutions where the federal government provides none. In fact, New York City was the first to invest in funding representation for detained individuals in removal proceedings. The New York Immigrant Family Unity Project (NYIFUP), launched in 2015, was the first of its kind in the country.¹⁰³ Its success ultimately led New York State's Legislature to the partial funding of a statewide expansion.¹⁰⁴

In spite of these innovative programs in New York, the need still far exceeds the demand. In the summer of 2018, when over 300 recently arrived refugees were transported straight from the border to the Albany County Correctional Facility, we spent long days and nights orchestrating a massive crisis lawyering volunteer response to fill this gap.¹⁰⁵ This gave us a front-row seat to the pitfalls, perils and miscarriages of justice that result when a system that is already low on resources is strained. The "Detention Outreach Project" (DOP), as we came to call it, brought into sharp relief the lack of specialized immigration attorneys in the state; a problem magnified by such a large and rapid influx of detainees. You can read about the DOP from the perspective of the Albany County Sheriff in chapter 1. But for us, one central goal and challenge of the DOP was to create a model of effective legal representation for detained asylum-seekers. Now that the crisis has receded, we have time to start looking for some of the answers that time would not afford at the height of the influx. How did the system break so badly? If Congress and the courts refuse to intervene, where can we look to find more effective interventions? For state and local actors looking to tackle this challenge, what programs would be most effective? In this chapter, we look to our neighbors to the north, Canada, to begin the inquiry and hopefully inspire other stakeholders to continue the work.

II. The Basics of American v. Canadian Immigration Law

The vast majority of the immigration laws in the United States were created within the last century. The Constitution, interestingly, does not mention the word "immigration" at all, but rather discusses the concept of naturalization in Article I and the Fourteenth Amendment.¹⁰⁶ It took several missteps by state governments before the Supreme Court intervened to grant plenary power to the federal government concerning the regulation of immigration.¹⁰⁷ Notably, that convening did not specifically delegate immigration enforcement powers to the federal government.¹⁰⁸ Congress did not proactively engage in the creation of immigration laws until the late 19th century. Their first act was to limit the number of so-called "undesirables" and exclude, specifically, Chinese day laborers.¹⁰⁹ From its infancy, American immigration law was hostile, restrictive, protectionist, and racist.

Over the last century, the development of the Immigration and Nationality Act or INA has largely developed through the development of limitations on immigration, rather than expansions. With the exception of certain humanitarian laws, such as those for refugees and asylees, special immigrant juveniles, victims of human trafficking and other crimes, special visas for foreign nationals who are endangered for assisting the United States military, and visas for victims of domestic violence, the vast majority of the remaining provisions of the INA give so much authority to the Executive Branch, particularly the Attorney General, such that immigration policy is largely shaped by the politics du jour. Congress has done little to correct this problem. Present day immigration laws and policies are a patchwork of laws and policies, at times seemingly contradictory and incoherent. At present, the INA has been compared to the tax code in terms of its incomprehensibility and complexity.¹¹⁰

The United States system generally mirrors Canada's in that there is a federal code that regulates immigration, establishes humanitarian and temporary protections for vulnerable populations, and provides pathways to permanent residence and citizenship, while also establishing elaborate mechanisms for determining whether individuals are eligible to enter the country and under what circumstances they can be deported. The main difference is not in the laws themselves, but in the vastly different policies in each country that shape their implementation and enforcement. In order to understand the development of access to counsel in Canada, it is important to first understand a bit about its legal context.

A. Canadian Immigration Law in a Nutshell

The Canadian system is governed primarily by the Immigration and Refugee Protection Act (IRPA) of 2001, which defines the various pathways for migration to Canada.¹¹¹ IRPA allows permanent residence to individuals coming for economic reasons, for family reunification, or for protection from harm.¹¹² Contrast this with the INA in the United States, which is rooted in a restrictionist, rather than humanitarian, philosophy. Permanent Residents in Canada have the right to live, work, and study anywhere in Canada and can access most social benefits as well as Canadian citizenship.¹¹³ In addition, Canadian law provides for temporary visas that allow visitors to Canada to visit for business or pleasure temporarily, to study in Canadian institutions, or to obtain work permits which may or may not be tied to particular employers.¹¹⁴

To plan for migration and allocate resources appropriately, the Minister of Immigration, Refugees, and Citizenship sets a yearly plan projecting how many new permanent residents the country will take in each year to meet its economic needs.¹¹⁵ In 2017, the Minister of Immigration, Refugees, and Citizenship replaced this with a three year plan, revised again in 2018 that increases immigration levels to their highest numbers yet.¹¹⁶

1. Permanent Residents

Individuals can become permanent residents in a manner of different ways. Economic migrants can qualify for one of several programs including:

The Canadian Experience Class, for individuals with at least one year of work experience in a skilled, meaning a managerial, professional, or technical, occupation within Canada as well as language proficiency; ¹¹⁷

The Federal Skilled Worker program, for individuals with skilled work experience who will also be awarded points for other factors such as age, language abilities, experience in Canada, and adaptability to life in Canada; ¹¹⁸

The Federal Skilled Trades program, for individuals with a job offer who have skills in certain trades and language abilities. ¹¹⁹

Provincial Nominees, which include various programs designated by each Province to meet their specific needs and help address gaps in regional labor markets. ¹²⁰

Entrepreneurs and self-employed persons may also qualify for permanent residence if they can show that they will score sufficiently high on a merits-based points systems that assesses their economic impact on Canada. ¹²¹

As in the United States, Canadian citizens and permanent residents, as well as a person registered as an Indian under the Canadian Indian Act, may sponsor certain family members for permanent residence.¹²² Categories of persons who may be sponsored for family-based petitions are:

A spouse, common-law-spouse, conjugal partners, or dependent child (including any children they may also have); ¹²³

A parent or grandparent provided they will be financially supported and will not need social assistance (including any spouses and children they may have); ¹²⁴

Orphans under the age of 18 who are a sibling, a niece or nephew, or a grandchild; ¹²⁵

Adoptive children under the age of 18; ¹²⁶

Other family members if the sponsor does not have any other relative in the above categories they could sponsor, including siblings, aunts and uncles, or

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