NYC Know Your Rights Project

An Innovative Pro Bono Response

to the Lack of Counsel for Indigent
Immigrant Detainees

City Bar Justice Center

42 West 44th Street
New York, N.Y. 10036
www.citybarjusticecenter.org
November 2009
CREDITS

The NYC Know Your Rights Project is operated by the City Bar Justice Center in collaboration
with The Legal Aid Society and the American Immigration Lawyers’ Association, NYC Chapter
Pro Bono Committee. The Project recruits, trains and coordinates pro bono attorneys to provide
free legal advice and counseling to detainees at a weekly clinic at the Varick Federal Detention
Center. This report was written by Kiera LoBreglio, Fragomen Fellow, and Lynn M. Kelly,
Executive Director at the City Bar Justice Center. We gratefully acknowledge the contributions of
City Bar Justice Center Deferred Associate Marissa Geannette, Seton Hall Law 3L student
Michael Patterson, former Fragomen Fellow, Elizabeth T. Reichard, Esq., and Helen Poitra-
Chalmers, NYC Know Your Rights Project Coordinator at the City Bar Justice Center.

We would like to thank our partners on the NYC Know Your Rights Project: The Legal Aid
Society team lead by Maria Navarro and the American Immigration Lawyers Association – NY
Chapter and their representatives Cyrus Mehta and Lauren De Bellis, and the six inaugural pro
bono firms who helped to launch this project – Fragomen, del Rey, Bernsen & Loewy, LLP;
Orrick, Herrington & Sutcliffe LLP; Paul, Weiss, Rifkind, Wharton & Garrison LLP; Seward &
Kissel LLP; McKee Nelson LLP; and Skadden, Arps, Slate, Meagher & Flom LLP. We also want
to thank Professor Nancy Morawetz at NYU Law School and Linda Kenapaske, Esq. for helping
to train the pro bono attorneys and consulting with the project on complicated cases. This project
is a remarkable collaboration of the New York legal community.

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An Innovative Pro Bono Response to the Lack of Counsel for Indigent Immigrant Detainees
EXECUTIVE SUMMARY

The NYC Know Your Rights Project is a collaboration of the City Bar Justice Center, The Legal
Aid Society and the American Immigration Lawyers Association, NYC Chapter. The purpose of
the collaboration is to increase access to legal advice and information for the detainees held at the
Varick Facility by recruiting, training, and mentoring private law firm volunteers to staff a regular
weekly clinic at the Immigration and Customs Enforcement
39.2% of the detainees
detention facility in Lower Manhattan. The report is based on
interviewed have
data on 158 detainees counseled at Varick by pro bono possible meritorious
volunteers between December 11, 2008 through July 9, 2009. claims for relief from
We found 39.2% of the detainees had possible meritorious removal
claims for relief from removal. The most common forms of relief were cancellation of removal;
asylum; withholding of removal, and/or relief under the Convention Against Torture;
nonimmigrant visas including U and S visas; 212(c) relief; and adjustment of status under 245(i) of
the Immigration and Nationality Act.

In addition we found 10% of detainees we interviewed had been granted bond, but the amount was
set so high that they could not raise the funds and thus remained housed in the facility. We also
experienced detainees we met with being shipped to other
Of those with bond set, parts of the country where access to counsel is even less
90% cannot afford to pay
and remain in detention likely than in the New York metropolitan area, sometimes
before the volunteer could finish researching the case.

This report recommends that there be government-funded appointed counsel for all detained
immigrants who cannot afford private counsel. Despite our best efforts and the diligence of our
volunteers, we were only able to help 10 detainees a week at the NYC Know Your Rights Clinic.
While only a handful of cases have been matched for full pro bono representation from the clinic,
we have had some notable successes including the release of several clients from detention.

Bearing witness to the detention of people without access to counsel, particularly those who have
lived, studied and worked in our community, in some cases for their whole lives but for their birth
outside the country, is difficult. Twenty seven of the detainees were lawful permanent residents
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and a few others had possible derivative citizenship claims based on being the child of a citizen
parent. Some detainees asked their pro bono attorney to notify loved ones who did not know they
were being held. While some of the immigrants at Varick arrive at the termination of a state
criminal sentence, others are picked up on a routine traffic stop or a minor car accident. The
wrenching costs of detention to spouses, life partners, children, parents, employers and
communities is beyond the scope of this report, but the toll we witnessed on these cases is high and
must be studied further.

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HISTORY OF THE NYC KNOW YOUR RIGHTS PROJECT
In October 2008, a petition signed by nearly 100 detainees at the Varick Federal Detention Facility
in lower Manhattan arrived at the City Bar Justice Center. The detainees were presenting a
“petition to investigate grave human rights abuses.” The cover letter implored: “We hereby ask
you to take a minute to read the attached petition and use all the means possible at your[sic]
disposal to help us inform the public and government agencies about what’s going on in here in the
middle of Manhattan.” In closing their plea, the detainees wrote: “Hoping for a swift and positive
answer we look forward to see some immediate changes in this corrupt system designed to profit
the owners of this facilities” [sic]. The petition raised a lengthy list of serious complaints about
conditions of detention in the facility, as well as the cost of outsourcing the detention to a
nongovernment for-profit contractor.

Just six weeks later, in December 2008, the City Bar Justice Center organized a pilot project to
bring pro bono attorneys into the Varick Facility in the hopes that access to counsel would provide
detainees with basic information about their legal defenses to removal and help relieve some of the
complaints alleged by the detainees. Resources to assist the detainees were extremely scarce.
Although the detention and the removal proceedings have a criminal nature, they are considered
civil. Therefore, no right to counsel attaches and there were few detainees with sufficient funds to
pay private attorneys. The City Bar Justice Center surveyed the organizations serving the detained
immigrant population in New York City, aiming to start a pro bono legal services project as
quickly as possible without reinventing the wheel. The Immigration Unit of The Legal Aid
Society and the Pro Bono Committee of the New York Chapter of the American Immigration
Lawyers Association were extremely responsive. Fortuitously, The Legal Aid Society had
recently gained access to provide legal resources to immigrants detained at Varick as part of their
detention outreach efforts. In addition, six large law firms stepped up to the plate to help launch
this new pro bono project.

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NYC Know Your Rights Project Collaborating Groups:

The City Bar Justice Center’s mission is to increase access to justice by leveraging the
resources of the New York City legal community. The City Bar Justice Center is part of the City
Bar Fund, the 501(c)(3) public service of affiliate of the 23,000-member New York City Bar
Association. The City Bar Justice Center operates ten or more pro bono projects annually and
assists 25,000 New Yorkers with unmet civil legal needs.

The Legal Aid Society is the nation's oldest and largest provider of legal services to the
indigent. Founded in 1876, the Society provides a full range of civil legal services as well as
criminal defense work, and juvenile rights representation in Family Court. The Legal Aid Society
aims to provide free legal assistance to New Yorkers who live at or below the poverty level and
cannot afford to hire a lawyer when confronted with a legal problem.

The American Immigration Lawyers’ Association (AILA) is the national association of

more than 12,000 immigration lawyers established to promote justice, advocate for fair and
reasonable immigration law and policy, advance the quality of immigration and nationality law
and practice, and enhance the professional development of its members. AILA’s New York
Chapter is the nation’s largest with over 1,300 members. AILA-NY chapter members work in
various practice areas (immigration litigation, family, employment, etc.) in a range of settings
(solo practices, large firms, law schools, non-profits/community based organizations, legal services
providers, etc.).

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THE NYC KNOW YOUR RIGHTS PROJECT –
LOGISTICS AND OPERATIONS
The NYC Know Your Rights Project is a collaborative effort between the City Bar Justice Center
(CBJC), The Legal Aid Society, the American Immigration Lawyers Association (AILA), New
York City Chapter, participating pro bono law firms and several law school clinics to provide
immigration advice and legal assistance to those detained at the Varick Federal Detention Facility.

The Project conducts a weekly Thursday morning legal clinic on site at the facility. Each week
participating firms and organizations send an aggregate team of ten attorneys to the facility where
they meet with detainees and conduct screening interviews. Attorneys, supervised by volunteer
immigration expert AILA mentors, determine whether immigration relief is available to the
detainees they interview and make appropriate referrals to pro bono (or “low bono”) counsel. The
clinic is a brief services model so that volunteers are not expected to take cases on for full
representation in the removal proceedings although they may. The pro bono attorney interviews
the detainee following a detailed interview form created for the clinic, checks with the AILA
mentor on the correct advice and then counsels the detainee on their options and answers any
questions. The Legal Aid Society, which also rotates through the AILA mentor pool, has
managed the relationship with the facility, including coordinating meetings with Varick
administrators, exchanging information, and reporting serious medical issues, as well as running
criminal background checks to help determine the relief eligibility of the detainees seen at each
clinic.

The City Bar Justice Center provides administration, scheduling and data collection for the weekly
clinics. The Fragomen Fellow, a rotating one-year fellow placed at the CBJC from the
immigration law firm of Fragomen, Del Rey, Bernsen & Loewy LLP, oversees the project, from
training and recruiting new volunteers to overseeing the follow-up on all of the cases opened at
each clinic. The Fragomen Fellow is responsible for logistics of the weekly clinics, including
detainee sign-up, collection of detainee data, analysis of the cases and follow-up. The Fragomen
Fellow also coordinates with volunteer lawyers in the weeks following their participation at the
clinic in order to ensure that all cases are resolved and closed in a timely fashion. The Fragomen
law firm has assisted with issuing the CLE for the two pro bono trainings held to date.

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 Law firms and Organizations Currently Participating in the NYC Know
Your Rights Project:

American Immigration Lawyers Association – New York Chapter

Fragomen, Del Rey, Bernsen & Loewy LLP
Hogan & Hartson LLP
Kelley Drye & Warren LLP
Linklaters
Milbank, Tweed, Hadley & McCloy LLP
New York City Law Department
Orrick, Herrington & Sutcliffe LLP
Paul, Weiss, Rifkind, Wharton & Garrison LLP
Seward & Kissel LLP
Sidley Austin LLP
Simpson Thacher & Bartlett LLP
Skadden, Arps, Slate, Meagher & Flom LLP
Sullivan & Cromwell LLP

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ANALYSIS OF INTERVIEW DATA
The data gathered by volunteer attorneys during intake interviews is recorded into our database,
and includes: alien registration number, demographic information, current immigration status,
status at time of entry, criminal history, immigration status of immediate family members, prior
applications and/or proceedings, and information/advice given. Varick is a men’s detention
facility (though one transgendered female client was interviewed) and we have encountered no
detainees who reported being under the age of 18. The average age of the detainees interviewed is
37. Some individuals are detained after serving time for a criminal conviction at Riker’s Island or
a state or federal prison. Several were transferred from penal to immigration custody before their
criminal case had concluded. Others ran afoul of a local law enforcement officer during routine
traffic stops or minor incidents that in the past would have resulted in nothing more than a fine.
Many have employment ties to the New York metropolitan area and live here with their families;
the vast majority have been in the US for over ten years. Only 25% of the detainees counseled
came from outside the New York metropolitan area.

The sample analyzed for this report consists of 158 detainees interviewed at the weekly clinics
between December 11, 2008 and July 9, 2009. The sample is not completely random, as detainees
choose whether to sign up for a consultation and there are time and space constraints at the clinics.

The 158 detainees screened came from 44 different countries. Twenty-four individuals were from
El Salvador and 23 from the Dominican Republic, representing 17 and 16 percent, respectively, of
the overall sample. Detainees from Mexico (14, or 10%) and Jamaica (13, or 9%) made up the
third and fourth largest nationality groups. Other Latin American and Caribbean countries
represented 19%, the Middle East and Central Asia 16%, and African countries 11% of those
counseled. [Appendix A] The overwhelming majority of the detainees interviewed (85%) had been
living in the United States for more than five years. Sixty-five percent had been living in the
country for over ten years, and 28% had been here for more than 20 years. [Appendix B] Over
three quarters of the detainees surveyed had been living in New York City, with the majority living
in Queens. [Appendix C] Nearly half of the detainees (49%) had been held in detention for four
to six months at the time of the interview. Twenty-seven percent had been detained for less than
four months. Nine detainees (6%) had spent between 13 and 24 months in detention, and two
detainees (1%) had been in detention for over two years at the time of interview. [Appendix D]
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We selected the following legal parameters for examination in this report: detainees’ current
immigration status; eligibility for bond or custody review; and indication of possible meritorious
claims for immigration relief. We also explored which forms of relief were most commonly
available within the population seemingly eligible for relief.

Status of Detainees
Of the 158 detainees interviewed over the seven month period, ten reported that they were
currently being represented by immigration counsel and one terminated the interview, and thus no
further status information was collected on these individuals. Of the remaining 147 detainees, 27
were lawful permanent residents (LPRs). Fifty-one had entered the United States without
inspection and did not have any immigration status. Twelve detainees had overstayed the time
limit on their non-immigrant visas, and six detainees had pending asylum applications. Two
detainees were paroled into the US (one for humanitarian reasons and one as a result of
extradition). Five detainees were present in the U.S. pursuant to Cuba-specific provisions of the
Immigration and Nationality Act. Finally, nine detainees had applications recently denied by
USCIS, and the remaining 36 were being held in detention after the issuance of a final order by an
Immigration Judge and were either awaiting departure or pursuing appeals.

Legal Status of Detainees in US

Paroled
into US Cuban 3%
1%
Pending Asylum 4%
USCIS Denial 6%
Entered Without Inspection
Already Represented
32%
6%

Visa Overstay
8%

Lawful Permanent Resident

17%
Post Order 23%

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Bond Eligible/Bond Set/Custody Review
Bond is available to those individuals not subject to mandatory detention, not a threat to national
security, and not a bail risk. Of the 158 detainees interviewed, 17 detainees had a bond set, but
were unable to pay the entire amount. Twenty-one detainees were bond eligible, but had either not
requested a bond hearing, or had not yet received a bond determination. Two detainees were able
to pay their bond and were released from detention. Eight detainees were eligible to request a
custody review, as they had been in detention for over 180 days after being ordered removed. Of
these eight, three were being held because they could not obtain travel documents, and were
eligible for supervised release. Another three of the eight were potentially eligible for
humanitarian parole due to severe medical conditions.

Eligibility for Bond

Able to pay bond,
released
1% Bond set, unable
to pay
11%

Eligible for bond,

but no
request/receipt
Ineligible for bond 19%
69%

Bond Status of Eligible Detainees

Able to pay bond,
released
4%

Bond set, unable to

pay
36%
Eligible for bond,
but no
request/receipt
60%

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Possible Meritorious Claims
Of the 158 detainees interviewed, 62, or 39%, appeared to have meritorious claims for relief from
removal. The most common forms of available relief were cancellation of removal; asylum,
withholding of removal, and/or relief under the Convention Against Torture, nonimmigrant visas
including U and S visas; 212(c) relief; and adjustment of status under section 245(i) of the
Immigration and Nationality Act. Other possible forms of available relief (stand-alone or as
alternatives to the relief discussed above) included derivative citizenship, Temporary Protected
Status, Special Immigrant Juvenile Status (for individuals under 21 years old), various waivers of
inadmissibility under section 212 of the Immigration and Nationality Act (INA), and adjustment of
status under several country-specific INA provisions. These forms of relief are explained below.

Meritorious Claims for Relief

Meritorious Claim
Identified
39%

No Relief Available
61%

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Breakdown and explanation of common forms of relief
 27 detainees appeared eligible for cancellation of removal
Cancellation for LPRs is available to any LPR who has resided in the US for seven years
since admission (issuance of Notice to Appear or commission of an inadmissible or
deportable offense stops the seven year clock), has been in LPR status for five years, has
not been convicted of an aggravated felony, has not received cancellation or 212(c) relief
previously, and who is not a terrorist, crewman, or exchange visitor. The positive equities
established in the US (e.g. family, employment, community involvement) must outweigh
the negative factors (e.g. criminal convictions). Cancellation for non-LPRs is available to
individuals who have been continuously present in the US for 10 years (10-year clock stops
with 90-day single absence, 180 days of aggregate absences, commission of statutorily
listed offense, or issuance of NTA). The person must prove good moral character, and that
his/her departure would cause exceptional and extreme hardship to the individual’s USC or
LPR spouse, child, or parent.

Potential Eligibility for Relief

Derivative Citizenship
8%

212(c) Relief
8%

Adjustment of Cancellation of
Status Removal
11% 44%

U- and S-Visas
13%

Asylum
16%

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 10 detainees appeared eligible for Asylum, Withholding of Removal, and/or
Withholding under the Convention Against Torture
Asylum is available to immigrants who have been persecuted or have a well-founded fear
of future persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. The individual must apply within one year of arrival in
the US, and cannot have been convicted of a particularly serious crime or an aggravated
felony. Withholding of Removal is available where an applicant is more likely than not to
face persecution on account of 1 of 5 protected grounds. Withholding is barred by
conviction of a particularly serious crime or aggregate sentence of 5 years. Finally, CAT
relief is available to an applicant more likely than not to face torture by, at the instigation
of, or with the acquiescence of a public official.

 8 detainees might be qualified for “special” nonimmigrant visas including U-

and S- visas.
The U-visa is available to victims of qualifying crimes who have suffered substantial harm
as a result of the crime and who have been or are likely to be helpful to law enforcement in
investigating or prosecuting the crime.

Similarly, the S-visa is available to aliens who provide critical, reliable information
necessary to the investigation or prosecution of a criminal or terrorist organization.

 5 detainees appeared eligible for 212(c) relief.

This form of relief is available to LPRs who have held that status for 7 years, pleaded
guilty to a crime before April 1996 (except a firearm offense), did not serve 5 years or
more for an aggravated felony conviction, and can establish sufficient equities.

 4 detainees were eligible for relief under INA 245(i).

This provision permits aliens who were beneficiaries of certain family- or employment-
based petitions filed before April 2001, and paid a $1000 fine, to adjust status despite
having entered the U.S. without inspection. The provision allows adjustment based on a

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category different from the basis of the petition originally filed, provided initial petition was
approvable when filed.

Significantly, almost none of the immigrants we interviewed had any knowledge of the specific
provisions of the law under which they might have a defense to removal. While there is a law
library at the Varick facility, very few of the detainees mentioned having used it or being able to
do legal research on these complex remedies on their own. In many cases, we were the only
lawyers they had spoken to about their immigration case.

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CITY BAR JUSTICE CENTER’S CONCLUSIONS AND
RECOMMENDATIONS
Based on the data collected and analyzed, the City Bar Justice Center concludes that a significant
portion of the detainees housed at Varick. had colorable claims for relief from removal. Working
closely with the AILA mentor attorneys, the volunteers were able to give detainees a concise
roadmap of their options as well as information regarding referrals to immigration attorneys
available for further consultation and possible representation. Of the 158 detainees interviewed by
these volunteers at Varick St. between December 2008 and July 2009, a full 39.2%, or 62
individuals, had colorable claims for relief.

Given this substantial number of detainees apparently eligible for relief from removal, the City Bar
Justice Center recommends that all detainees be assigned counsel so that they can navigate the
complex laws and regulations applicable in removal proceedings.1 Additionally, bond amounts for
detained immigrants with family and ties in the NYC region should be set substantially lower, and
alternatives to detention should be employed whenever possible.2 Ninety percent of those who
were granted a bond were not able to post it. Granting manageable bonds to individuals deemed
not to pose a security or flight risk would reduce the cost to the government of housing the
individual, and, more importantly, put the individual in a position of greatly increased access to
legal counsel and resources, which would in turn render the individual better able to progress more
efficiently and successfully through his immigration proceedings. In connection with granting
reasonable bonds, we recommend that the Varick Facility be used to house detainees with family
and other ties to the New York City community on a longer term basis. Family and community
support is often a determinative factor in a detainee’s level of access to documents and information
in support of his case. Additionally, detainees already consulting with attorneys based in the New
York area should be kept at Varick for the duration of their proceedings. If a detainee must be
transferred, the attorney of record should be notified immediately, and all mail should be
forwarded to the detainee.

1
See New York City Bar, Committee on Immigration and Naturalization, Report on the Right to Counsel of
Detained Immigrants in Removal Proceedings (Aug. 2009).
2 See Donald Kerwin & Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet its Legal Imperatives
and Case Management Responsibilities?, MIGRATION POL’Y INST. (Sept. 2009).
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 Summary of CBJC Recommendations
1. All indigent detainees should be assigned counsel.
2. Bond amounts for detained immigrants with family and ties in the NYC
region should be set substantially lower, and alternatives to detention used
whenever possible.
3. The Varick Facility should be used to house detainees with family and other
ties to the New York City community on a longer-term basis.
4. Detainees already consulting with attorneys based in the New York area
should be kept at Varick.
5. If a detainee must be transferred, the attorney of record should be notified
immediately, and all mail should be forwarded to the detainee.
6. Legal orientation presentations should be made available to the immigrants
upon being detained at the Varick Facility.
7. Scheduling for the NYC Know Your Rights Project should be done by
language group.
8. The Varick law library should be staffed with a law clerk to assist with
research and writing.

In order to facilitate the identification of legal claims and access to counsel, it is crucial that group
legal orientation presentations be made available to the immigrants upon being detained at the
Varick Facility. In addition, the NYC Know Your Rights Project clinics should be allowed to be
scheduled by language group in order to most effectively screen the largest number of detainees
that wish to be seen. Finally, the law library should be staffed with a law clerk to assist with
research and writing. Only with access to information can detainees advocate for themselves and
begin the process of obtaining legal counsel.

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 APPENDICES
Appendix A - Country of Origin for Detainees Held

Detainees from El Salvador and the Dominican Republic represent the highest percentage of
detainees, making up 17% and 16% of the population, respectively. Detainees from Mexico (10%)
and Jamaica (9%) make up the third and fourth largest groups. The majority of the rest of the
detainees are originally from countries in Latin America and the Caribbean.

Detainee Country of Origin

Hond
uras 5
Cuba 5
G uat
emal 9
a
G uya 10
na
Ec ua 10
dor
J ama 13
ic a
Dom Mex ic 14
O the i nic a o
r Lat n Re
in Am pub li 23
eric a El Sa c
n/Ca l vado 24
ribb e r
an C
ountr 19
i es*
Afr i c
an C
ou nt 11
Mi dd ri es*
le Ea
st an
d Ce
ntr al
Asi a* 16
Euro
pe a
nd C
anad 5
a*

As ia* 3

0 5 10 15 20 25

Num ber of Detainees Interview ed

* Other Latin American/Caribbean countries include:

Trinidad, Haiti, Panama, Brazil, Columbia Grenada, Aruba/Trinidad, Nicaragua, & Peru

African countries include:

Nigeria, Ghana, Guinea, Ivory Coast, Kenya, Sierra Leone & Sudan

Middle Eastern and Central Asian countries include:

Egypt, India, Israel, Kazakhstan, Kyrgyzstan, Tajikistan, Lebanon, Turkey & Yemen

European countries and Canada include:

Albania, Canada, Czech Republic, Greece, Italy, Poland & the United Kingdom

Asian countries include:

China & Vietnam
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Appendix B – Length of Residence in US

The overwhelming majority (85%) of the detainees held at the detention center have lived in the
U.S. for five years or more. Furthermore, a significant percentage (65%) of the total population of
detainees had been in the U.S. for more than ten years before being detained. Some detainees even
come to the clinic after having lived in the U.S. for over 45 years.

Length of Residence in US

Less than 5 years

More than 20 years 15%
28%

5 to 10 years
20%

11 to 20 years
37%

Appendix C – Counties of Origin

Over three-quarters of the detainees (78%) live in Queens, Kings, New York, and Bronx counties,
with the majority residing in Queens (26%).

Counties of Origin for Detainees

Essex 2%
Nassau 5%
Westchester 7%
Queens 26%
Suffolk
8%

Bronx
13%

Kings
22% New York
17%
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Appendix D – Length of Time Detained
Almost half (48%) of the detainees are held at the detention center between 4 and 6 months. A
large percentage (27%) are held from zero to four months. Some, however, are held much
longer—up to 28 months in one case.

Duration Detained

More than 24 months

1%
13 to 24 months
6%

7 to 12 months
17%

4 to 6 months
49%

Less than 4 months

27%

0 10 20 30 40 50 60 70 80

Number of Detainees

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