Restrictions on millions of dollars in new city funding for immigrants facing deportation could deny vulnerable defendants due process, according to a coalition of public defenders and advocates.
Announcing his executive budget last month Mayor Bill de Blasio highlighted $16.4 million to fund legal representation for non-citizen defendants in immigration court. "I wish we did not have to include this in our budget, but we have to because of the policies emanating from Washington," de Blasio told reporters, alluding to President Donald Trump's hard-line immigration policies. But the funding is conditional, excluding New Yorkers who have been convicted of any of 170 felonies deemed "violent and serious."
These same 170 felonies—including burglary and drug possession in the first and second degree as well as rape, murder and arson—exempt immigrants, including green card holders, from New York City's sanctuary provisions. The NYPD and Department of Correction cooperate with Immigration and Customs Enforcement when a defendant has one of these convictions, and will detain him or her on ICE's behalf.
The New York Immigrant Family Unity Project [NYIFUP], established in 2013, provides legal counsel to all immigrants in detention who cannot afford a lawyer, regardless of their criminal history. The program fills a legal loophole, as the US Constitution does not guarantee legal representation in immigration court.
"There is no other area of law where we lock people up and make them defend themselves without any legal representation," said Law Professor Peter Markowitz, of the Immigration Justice Clinic At Yeshiva University. A 2011 New York Immigrant Representation study found that 67 percent of immigrants in detention faced judges without legal representation before NYIFUP. Of those defendants, only 3 percent won their cases. Legal representation increases defendants' chances of avoiding deportation tenfold, the group found.
NYIFUP launched as a City Council pilot program, with $500,000 in funding. That funding has increased annually, totaling roughly $6.5 million in FY 2016. City Council Speaker Melissa Mark-Viverito said this month that she opposes Mayor de Blasio's decision to exclude certain defendants, and will fight to maintain NYIFUP as-is. "I'm not interested in changing any of the parameters of the program," she told reporters.
But in baselining defense funding, Mayor de Blasio will have the final word.
NYIFUP has been under financial strain since Trump took office, according to attorneys. "Right now we are struggling to meet the demand," said Legal Aid Society attorney Hassan Shafiqullah. "If you are unrepresented and low-income we will take your case. We have been doing this without sufficient resources, so our case loads are going through the roof."
Additional funding from the Mayor's Office would be welcome. But in practice, attorneys say, de Blasio's directive would fundamentally change a first-of-its kind program that's inspired similar programs cropping up in Seattle and California.
— Donna Lieberman (@JustAskDonna) May 11, 2017
"The administration's policy has always been consistent," a City Hall spokesperson stated Thursday. "If you have been convicted of one of 170 crimes deemed serious or violent by City Council legislation, the public should not be expected to foot the bill for your representation in civil immigration proceedings."
"There is absolutely nothing inconsistent about cooperating in the apprehension of somebody and also ensuring that they have due process," Markowitz countered.
Defendants with felony convictions have particularly complex options for relief in immigration court, he added, including exceptions for defendants who face torture or other safety risks in their countries of origin.
Shafiqullah, the Legal Aid attorney, also argued that not all of 170 felonies on the mayor's list merit such a blunt response. "We had someone who stole a bicycle out on the street," he said. "Now they're going to face deportation and be stripped of an attorney for that?"
A letter cosigned by 104 community and legal groups praises the new funding as "desperately needed." However, the letter states, "In our experience... many people with a conviction plead guilty because they were unable to afford to post bail and may not have committed the crime they were charged with or any crime at all."
Neither NYIFUP, nor the Mayor's Office, could provide data on how many immigrants in detention have convictions on the list of 170 felonies. The majority of immigrants facing deportation are not in detention, according to attorneys, though the pool appears to be growing under Trump.
"We believe, based on the best available research, that the number of people that would be excluded based on our criteria is small, and [the exclusions] let us maximize the effectiveness of this investment and better help more people," a Mayoral spokesman said.
According to City Hall, organizations like NYIFUP will have to apply for a portion of the $16.4 million. Some of the funding could go to other organizations, like Immigrant Children Advocates' Relief Effort which focuses on unaccompanied minors.
The City Council is holding a budget hearing on immigration services this afternoon. Before the hearing, attorneys and advocates rallied for NYIFUP funding outside City Hall.
"The Mayor's insistence on denying due process to certain immigrant New Yorkers will further fuel Donald Trump's deportation machine," stated Queens Councilman Rory Lancman, who joined the rally.
"The Administration looks forward to working with the Council throughout the budget process," the Mayoral spokesperson said.