Migrants seeking asylum in New York City are struggling to find lawyers
The limited number of pro bono attorneys who can help are already at capacity.
On a recent February morning at an immigration court in lower Manhattan, a group of about 15 migrants received several pieces of information crucial to their chances of avoiding deportation.
“Pay close attention,” Judge William McDermott told the group of migrants, who were mostly from Central and South America and were squeezed into the front of a small, bland courtroom on the 12th floor of 26 Federal Plaza, one of New York City’s three immigration courts.
First, be sure to notify the court within five days if you change your address, McDermott said via video call through a Spanish interpreter. Failing to do so can mean missing information that arrives in the mail about a future appearance before the court. That brought McDermott to his next point; do not miss an appearance before the court. Doing so will in all likelihood mean being removed in absentia, a potential fast-track to deportation. And finally, failure to submit an application for asylum within one year of arriving in the United States could render you ineligible.
In asking each of the migrants at the master calendar hearing if they wanted more time to find an attorney to represent them, McDermott hinted at perhaps the most important point – one that they might have already heard by word of mouth or if they were able to consult an advocate or nonprofit. It’s essential to find a lawyer to represent you through the long and winding process of seeking asylum status.
None of the migrants who were addressed as a group on that morning – some families with toddlers and babies, some individuals there on their own – had come with legal representation. McDermott, a bearded man with a calm demeanor and a higher than average rate of approving asylum cases, gave everyone gathered additional time to find representation. For those making their first appearance, he gave another six months. For a few who had already been granted additional time to find a lawyer, he gave another month. If they returned without representation, he said, the court would in all likelihood find that they had waived the right to a lawyer and they would have to appear on their own.
McDermott didn’t offer advice on the spot about how to find a lawyer – particularly one who wouldn’t charge steep fees. Even if he had, that advice might not do much good. “We’ll give them a list of attorneys with free legal services, we’ll say, ‘Call them,’ and they’ll say, ‘The court gave me a list very similar to this. I called all the organizations and I couldn’t even get a consult,’” said Hannah Strauss, a staff attorney at Catholic Charities’ Immigration Court Helpdesk. The Immigration Court Helpdesk doesn’t provide legal representation, but it offers consultations in the city’s immigration courts to provide information about the process and can help unrepresented migrants in court proceedings with steps like a change of address form.
On two recent days that she staffed the help desk at 26 Federal Plaza and 201 Varick St. – another of the city’s immigration courts – Strauss saw one person after another, taking few breaks between the private consultations. But when it comes to finding someone who can actually represent an asylum-seeker in court, Strauss said that there’s not always a lot they can do. Pro bono attorneys are already working with caseloads past their capacity. And for the migrants who are not yet able to work legally and arrive without much in the way of savings, paying for an attorney is a non-starter.
Crowds of people pass through the city’s immigration courts on any given day. Not all are seeking asylum. And not all have arrived with the influx of more than 40,000 migrants to New York City since last spring – the wave referred to by Mayor Eric Adams and others as the “migrant crisis” or “asylum-seeker crisis.”
But for those who are seeking asylum in the United States, that one-year clock to file their application ticks loudly. Outside McDermott’s courtroom, a nervous woman who arrived from Colombia more than a year ago spoke through tears as she said that she had yet to submit an asylum application and was dropped by her lawyer because she couldn’t pay. A week earlier at 201 Varick St., a young couple from Honduras with a newborn baby and little idea of what kind of relief they might be eligible for waited for their preliminary hearing. Like several others City & State spoke to at immigration courts recently, they had yet to find a lawyer they could afford.
Alexandra Pineras, a Venezuelan mother of three kids – including a baby born here in December – crossed the border with her partner while pregnant eight months ago. Several hours after their scheduled 8:30 a.m. hearing at 26 Federal Plaza, the family had still yet to be seen by a judge. In one of several waiting rooms on the 14th floor, which houses more immigration courtrooms, Pineras breastfed her baby while her two slightly older children climbed on the plastic chairs behind her, laughing as they played. Pineras and her family had not found an attorney, though they knew it was important to get one.
The hurdles to being granted asylum in the United States are steep. There’s the tight one-year window, for one. For those who don’t have a permanent address, missing a piece of crucial mail about a court date can derail their case. And then there’s the essential challenge of making the case for asylum: Proving that a person has suffered persecution or has a well-founded fear of persecution in their country due to their race, religion, nationality, membership in a particular social group or political opinion.
Those hurdles become much more difficult to clear if an asylum-seeker is going through the process without legal representation. Migrants are more than five times as likely to obtain relief from deportation if they are represented by a lawyer compared to those who aren’t, according to one 2015 study. That same study found that migrants were also far more likely to apply for relief in the first place if they’re represented by an attorney.
Immigration advocates, attorneys and experts have stressed that legal services organizations that provide pro bono representation are not equipped to meet the demand. There aren’t enough attorneys, and the courts are backlogged. Even before last spring, when border politicians began busing migrants to sanctuary cities, New York state alone had around 180,000 cases pending in immigration courts.
“Part of it is because the immigration courts were closed for two years with COVID, a lot of attorneys have kind of bloated caseloads that are now having a lot of individual hearings,” Strauss said. “You can’t take on new cases if you are already at your capacity.”
Strauss estimated that separate from her work on the help desk, which she does several days each month, she has around 40 cases right now, though not all of those clients are in removal proceedings. While the Immigration Court Helpdesk stops short of actually representing clients in court, the program allows Strauss, and other attorneys and administrative staff, to provide people facing deportation with what some referred to as “legal triage.”
On a recent morning at 201 Varick St. – a squatter and slightly less intimidating building than 26 Federal Plaza – people steadily came and went from the long, narrow hallway on the fifth floor that holds several small courtrooms. Some came accompanied by friends; some with children who napped on the plastic chairs lining the walls. A 16-year-old from Ecuador with a nervous smile and a carefully chosen slim-cut jacket and bowtie arrived for his first hearing with friends and cousins.
At the end of that hallway, Strauss and two coordinators prepared for a long day in a bare room set aside for pro bono work. Others waiting on the fifth floor were there specifically for the help desk.
What is an ICE check-in? What is a hearing with an immigration judge? Who is the person who’s going to decide my case? Will I go to my first hearing and they’ll just deport me? Will I have a chance to explain why I’m here? These are just some of the questions that people come to the help desk with.
Before the end of the day, Strauss would complete consultations with more than half a dozen people eager for information. (The help desk is first come, first served. “We turn people away every single day,” she said.)
People also arrive at the help desk asking what type of relief they might be eligible for, or seeking help in filling out an asylum application. Under the same grant for its Immigration Court Helpdesk, Catholic Charities runs a self-help workshop once a month offering pro se legal assistance. That’s where unrepresented migrants who have been through a consultation with the help desk or referred by another organization can receive help filling out their applications.
Deborah Lee, the attorney-in-charge of the Immigration Law Unit at The Legal Aid Society, said that another complication for those going through this process without a lawyer was knowing where to submit their asylum application. Most people who cross the border are put in removal proceedings in immigration court. If they’re seeking asylum, they file for “defensive asylum,” and that application goes through the immigration court. But for those applying for “affirmative asylum” – maybe a person who came to the United States on a tourist visa – the application goes through United States Citizenship and Immigration Services.
Confusion about where to file the application – or wasting time filing it in the wrong place – is just one way that asylum-seekers can miss their one-year window. When that happens, Lee said, a person can attempt to show that they faced extraordinary circumstances. Demonstrating that is difficult, though, especially without a lawyer. A few other types of humanitarian relief exist, including withholding of removal and protection under the Convention Against Torture, but asylum status offers the strongest benefits and a pathway to citizenship.
The attorneys at the Immigration Law Unit represent low-income immigrants in court, including those who are currently detained. While Lee said Legal Aid Society attorneys try to take on as many clients as they can, it’s frustrating to know that people will go unrepresented.
Migrants who are able to get as far as submitting an asylum application have a stronger chance of being granted that relief in New York than in some of the southern states that bused them here. In fiscal year 2022, New York judges granted asylum roughly 81% of the time, according to data analyzed by the Transactional Records Access Clearinghouse at Syracuse University. Nationwide, that rate was 46%.
Asylum-seekers who City & State spoke to at immigration court shared stories of fleeing domestic violence, political persecution, gang violence and extortion in their home countries. Like any other argument before a court, strong evidence makes for a strong asylum case. Medical records, news reports and text messages can go a long way in showing that an applicant suffered persecution or has a well-founded fear of persecution if they return, Strauss said.
The paradoxical advice that asylum-seekers receive – to find a lawyer, but offered few leads on how to get one – is something that state lawmakers are tackling in this session. Assembly Member Catalina Cruz and state Sen. Brad Hoylman-Sigal have reintroduced their Access to Representation Act, which would create a right to counsel for low-income immigrants in immigration court, with dedicated funding to support organizations hiring attorneys. “It’s a moral obligation to stand up for many of these immigrants who are essentially voiceless at this point,” Hoylman-Sigal told City & State, adding that he’s hopeful to see the legislation included in the state budget. Still, passage of the legislation won’t automatically create a glut of immigration lawyers jumping to work at nonprofits, and it could take a while for the program’s goals to be realized.
Meanwhile, New York state is looking to expand government funding to immigrant legal services in response to the influx of migrants from the southern border over the past year. Gov. Kathy Hochul’s executive budget for the coming fiscal year would almost double funding for the state Office for New Americans, which operates a Liberty Defense Project connecting immigrants to legal service nonprofits. Funding for fiscal year 2024 would increase to $22 million, with $10 million dedicated specifically to asylum-seekers, according to a spokesperson.
New York City, where more than 40,000 migrants have arrived since last spring, has also tried to connect people to legal assistance. The city opened an Asylum Seeker Resource Navigation Center last fall that, along with satellite sites, has provided thousands of asylum-seekers with legal information and orientation sessions, according to a City Hall spokesperson. Legal information is also available at the city’s Humanitarian Emergency Response and Relief Centers, like the recently opened shelter at the Brooklyn Cruise Terminal. The spokesperson cited an additional $5 million that the city has allocated for legal services for asylum-seekers, in addition to $67 million already going to immigrant legal services.
Meanwhile, the clock keeps ticking. “We haven’t done anything because we don’t have the money for a lawyer,” said Richard Ortega, an asylum-seeker from Peru who arrived for his first hearing at 26 Federal Plaza with his partner and two young kids. “I’m hoping,” Ortega added, watching out of the corner of his eye as his young son zoomed a wrestling action figure up and around the empty chairs and walls of the waiting room.
– Additional reporting by Ralph R. Ortega
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