Unbundled Representation in New York City Immigration Courts

In New York City, 60% of detained respondents and 27% of non-detained respondents do not have an attorney in their removal proceedings. (For more information on New Yorkers’ lack of immigration counsel, see the New York Immigrant Representation Study Preliminary Findings, May 3, 2011.) Facing these stark numbers, New York City immigrant advocates are tackling the dearth of representation in a unique way—through unbundled representation.

Generally, unbundled representation entails a lawyer placing reasonable limits on the representation she provides, with the informed consent of her client. See ABA Model Rule 1.2(c); see also New York Rules of Professional Conduct 1.2(c). In the immigration context, this limited representation can have substantial benefits for respondents, attorneys, and courts. Respondents have the opportunity to benefit from the legal expertise of lawyers, while paying only for those services they truly need. At the same time, attorneys may expand their client network and hone their skills in a particular practice area. Moreover, the courts benefit from the added efficiency of engaging with respondents who are better prepared for the complicated court proceedings.

Nevertheless, the Immigration Court Practice Manual states that “[o]nce an attorney has made an appearance, that attorney has an obligation to continue representation until such time as the alien terminates representation or a motion to withdraw or substitute as counsel has been granted by the Immigration Court.” Immigration Court Practice Manual 2.3(d) (emphasis added). Fortunately for respondents in New York City, the tension between the Immigration Court Practice Manual and unbundled representation has been ameliorated through an agreement between the Courts and practitioners to permit attorneys to represent respondents in a limited capacity—i.e., for bond hearings or master calendar hearings only.

The Legal Aid Society—Immigration Unit (LAS) is one organization that has already implemented this method of representation. For example, LAS provides quality and zealous representation to incarcerated individuals on a limited basis during bond hearings—one of the most critical moments in a respondent’s case. The importance of representation during bond hearings is significant, as freedom from detention dramatically increases the likelihood of obtaining a successful outcome.

ICOP commends organizations like LAS that utilize the unique agreement practitioners have with the New York City Immigration Courts to provide quality, unbundled representation to noncitizens in removal proceedings. The potential for unbundled services to serve a greater number of noncitizens at key moments in their proceedings, however, is not a panacea for the underlying problem of inaccessibility of counsel for the majority of people who are placed in immigration proceedings. ICOP remains strongly in favor of Congress recognizing the right to appointed counsel for indigent respondents in removal proceedings. Until then, LAS and other practitioners should be thanked for their invaluable work.

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