Immigration

Detained Immigrants Facing Prospect of Solitary Confinement Often Have No Access to Counsel

/ The Old Crank

A couple of weeks ago I wrote about a proposal by Robert Katzmann, a federal appellate judge in New York, to develop an “immigrant justice corps” program that would recruit and train young lawyers to assist illegal immigrants. I speculated in that post about whether the problem of inadequate legal representation for immigrants in general (especially low-income immigrants) might acquire greater urgency in the near future, once an immigration reform bill is passed.

Last week, in case you missed it, the New York Times reported on the U.S. Immigration and Customs Enforcement’s horrific use of solitary confinement on detained immigrants. (If you read the article—and you should—I think you’ll agree that my choice of the word “horrific” is not hyperbole.) One has to wonder whether better and more widely available legal representation would keep this practice in check. As the author of the piece notes, immigrant detainees are not automatically represented by legal counsel, and about 85% have none, and the consequences can be dire. I wish the piece would have made the connection between this problem and the efforts that Judge Katzman and others are making to address the adequate counsel issue.

I can’t imagine why anyone facing the potentially devastating psychological effects of long-term solitary confinement should not have access to counsel.

Could Immigration Reform Draw Greater Attention to the Legal Needs of Low-Income Immigrants?

/ The Old Crank

Kirk Semple, writing for the New York Times’ City Room blog, reports that a federal appellate judge in New York is proposing an “immigrant justice corps” program that would recruit and train young lawyers to assist illegal immigrants navigate the pathway to legal residency status and citizenship—under the assumption that the immigration reform legislation anticipated sometime this year will provide one. Most expect it will.

The judge, Robert A. Katzmann, envisions something that would look a lot like AmeriCorps VISTA and the Peace Corps. According to Semple, the program would recruit 50 young immigration lawyers every two months for two-year periods of service. Like the programs modeled on Teach for America I wrote about a couple of weeks ago, it would give graduating law students an opportunity for work in what is a tight job market right now for lawyers. Katzmann estimates that he would need $5 million to support the program for a year. Authorizing a few million dollars of federal money in the immigration reform bill itself to provide legal assistance to those trying to meet the requirements of the law should be a no-brainer, but in the current budget-cutting climate, that may not be possible.

As Semple notes, Judge Katzmann has been a longstanding critic of the quality of the legal representation provided to immigrants, and was the leader of a group in New York group that proposed a plan last year to create a network of legal service providers to represent low-income immigrants in the New York City region.

One of the biggest problems facing immigrants in any legal proceeding is lack of English proficiency. I’ve seen firsthand defendants brought before judges in criminal courtrooms, for example, who don’t read or speak English and have no experience navigating the U.S. legal system. Last year, I noted on this blog that the National Center on Access to Justice (NCAJ) at the Cardozza School of Law had concluded that many courts “have little or no way to communicate with the growing number of Americans who have only limited proficiency in English.” As a result, “innocent people have been sent to prison, children have been sent to foster care unnecessarily, and women have found it impossible to get court orders to protect them from domestic violence.” As I argued in that post, this is a problem not just for non-native English speakers but for native English speakers with low levels of literacy as well.

I agree with Judge Katzmann that the problem of inadequate legal representation for immigrants (especially low-income immigrants) will acquire even greater urgency once an immigration reform bill is passed, but the problem isn’t limited to immigration status issues. Perhaps his proposal will draw greater attention to the need to address language access and low literacy in our justice system generally.

Two Basic Principles for Immigration Reform and Learning English

/ The Old Crank

All indications are that the immigration reform legislation currently being drafted in the Senate is going to provide undocumented immigrants currently residing in the U.S. with the opportunity to apply for lawful permanent residency—but with a much more arduous set of requirements than are required by normal green card applicants. Adult education groups are particularly interested in the English language requirement (which I discussed here).

Having now had a chance to think about this for a few weeks, my thoughts on this requirement come down to two basic principles:

  1. A requirement to learn English in order to qualify for lawful permanent resident status shouldn’t penalize or place an unrealistic burden on those with significant learning challenges.
  2. Any requirement to learn English in order to qualify for lawful permanent resident status should address the increased demand for English instruction that would emerge as a result, in a way that leverages the success of adult education programs that already provide these services.

The first has to do with basic fairness and ensuring equal opportunity. A requirement to learn English in order to qualify for lawful permanent resident status shouldn’t penalize or place an unrealistic burden on those who have special learning challenges, such as:

  • Those with limited education or literacy skills in their native language.
  • Those who are caregivers of children and therefore may have more limited opportunities to attend English classes. Lack of childcare services is already a significant barrier that prevents many people from attending adult education classes—particularly women.
  • Those who are elderly or disabled. For citizenship, those who are over a certain age and/or who have a disability may be granted an exemption from completing the English and civics tests. Similar kinds of considerations should be made for undocumented immigrants applying for the permanent resident status who are elderly/disabled.

It seems to me that consideration should be given to scrapping English proficiency altogether as a requirement and using satisfactory completion of some form of legitimate English language instruction over a certain period of time as sufficient to qualify. This would eliminate the problem of having to figure out what level of proficiency is going to count as sufficient, and it would largely (although not entirely) address the problem that the elderly/disabled may struggle to gain proficiency easily or quickly. One would still have to know English at certain level of proficiency to become a citizen (other than those who would be granted exceptions anyway).

The second basic principle is that any requirement to learn English in order to qualify for lawful permanent resident status should address the increased demand for low-cost English instruction that’s going to explode as a result, and in a way that leverages the success of adult education programs that already provide these services for free or at a limited cost. (I’m thinking here primarily of the adult English language and literacy programs funded at least in part by federal/state dollars—but also the privately funded nonprofits that are also key adult education providers in many communities.)

  • While the current capacity of these programs may not be sufficient to meet new demand, it will be cheaper to leverage the existing capacity than to create new entities to provide this instruction.
  • Moreover, this existing adult education system already has a track record of success in providing individuals with the English skills needed to successfully enter employment, improve their employment prospects, enroll in job training or in postsecondary education. The adult education system also has a track record in many states of providing adults with the opportunity to co-enroll in English language instruction while obtaining technical skills.
  • Similarly, it doesn’t make sense for the English language requirement to establish its own measure(s) for English proficiency that does not align with those measures already in use by the adult education system in local communities.

Finally, while it’s probably not realistic to expect a big increase in federal expenditures for these programs to be included in this bill, we ought to at least strengthen what we have. Let’s encourage professional and private sector investment in expanded adult English language instruction. One way to do this would be to provide tax credits for businesses that partner with adult education programs to provide English instruction for their employees (or residents of the community)—a variation of an idea was included in the Menendez/Leahy immigration reform bill in 2010.

In addition, I can’t think of a good reason why this legislation shouldn’t include the authorization of the EL/Civics grant program under Title II of the Workforce Investment Act (WIA). (WIA is the primary vehicle for federal investment in adult education in the U.S.) EL/Civics isn’t actually authorized by WIA but is a set-aside that has to be approved by Congressional appropriators every year. The lack of authorization leaves the program more vulnerable to elimination than other programs under WIA, at a time when we can least afford for that to happen.

Odds and Ends

/ The Old Crank

I’ve been under the weather for several days and haven’t had the energy to post anything. A couple of quick things:

  • Also on Friday, Democrats on the House Education and the Workforce Committee reintroduced their WIA reauthorization bill from last year. It’s now called the Workforce Investment Act of 2013 (H.R. 798). Press release here.

A lot of old legislation gets reintroduced at the beginning of a new session, so I have no idea how excited to get over this. It’s worth remembering that it has zero chance of passing the Republican-controlled committee.

My recollection is that Republicans on the committee were planing to reintroduce their WIA reauthorization bill early this year as well, and while that presumably would pass the committee (like their bill did last year), whether it would get to the floor anytime soon, and whether it would get through the Senate or form the basis for a compromise bill is another question.