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Opinion: Letter to the Hon. Chief Justice Rabner of the NJ Supreme Court

Justice for All/Justicia para Todos — a proposed program that could ease an enormous amount of misery for very little money

potter
Credit: Amanda Brown
R. William Potter

As you know, thousands of undocumented immigrants in New Jersey, including children, face deportation hearings without attorneys to defend or guide them through the maze of hearings, despite the herculean efforts of various pro bono attorneys and civil rights groups such as the American Civil Liberties Union (ACLU)and Kids in Need of Defense (KIND).

These undocumented immigrants are at risk of banishment, often to countries they hardly remember, where violent gangs, unemployment, poverty, and abusive and corrupt law enforcement may await them.

Making matters worse, New Jersey’s most populated counties — Bergen, Essex, and Hudson — profit by cooperating with the U.S. Immigration and Customs Enforcement (ICE) in making arrests leading to detention and deportation. These counties signed Intergovernmental Service Agreements (IGSAs) “that allow ICE to rent County jail space for immigrant detention for $110 per day for every ‘undocumented’ they house sometimes in brutal or unsanitary conditions,” as Julia Draper wrote on this site.

Before going further, we want to express our gratitude for your efforts to dissuade the Department of Homeland Security (DHS) from sending ICE agents to pursue and arrest immigrants at courthouses. Your letter of April 19, 2017 to DHS Secretary John Kelly asked him to add courthouses to the list of “sensitive locations,” along with schools, hospitals, and houses of worship, that are generally off-limits to arrests by ICE agents. Regrettably, DHS disregarded your request and these kinds of courthouse arrests continue throughout New Jersey.

Other jurists also seek to protect the rights of undocumented immigrants. In New York City, for example, when ICE agents detained Ravi Ragbir, executive director of the New Sanctuary Coalition on January 11 during a routine immigration “check-in,” Federal Court Judge Katherine B. Forrest held that ICE had violated Ragbir’s due-process rights by its “… abrupt and by all counts unnecessary detention … Taking such a man, and there are many such men and women like him, and subjecting him to what is rightfully understood as no different or better than penal detention is certainly cruel. We as a country need and must not act so. The Constitution commands better.”

Who are NJ’s undocumented?

Besides protesting such outrages, what else can we in the legal profession do to alleviate the suffering and anxiety felt by the undocumented living, working, and paying taxes in New Jersey who fear to be seen in public or to hear the loud knock at the door, reminiscent of Jews in Hitler’s Germany?

But first, who are New Jersey’s undocumented immigrants? According to the American Immigration Council’s fact sheet:

  • In 2014, 500,000 undocumented immigrants made up 24 percent of the immigrant population and 5.4 percent of the state population.

  • Between 2010 and 2014, 604,615 people in New Jersey, including 204,946 born in the United States, lived with at least one undocumented family member.

  • In 2015, more than a third of adult immigrants in New Jersey held a bachelor’s degree or higher.

  • Undocumented immigrants in New Jersey paid an estimated $587.4 million in state and local taxes in 2014.

  • In 2017, arrests of undocumented immigrants in New Jersey were up 20 percent and deportations were up 30 percent, as reported by northjersey.com.

Some help may be on its way if Gov. Phil Murphy follows through with his promise to declare New Jersey a “sanctuary state” — meaning, law enforcement would not assist ICE agents in arresting immigrants for the civil offense of being here without “proper papers.” In addition, Murphy’s 2019-2020 spending plan includes $2.1 million for the legal defense of immigrants who cannot afford to hire an attorney.

Lawyers for the undocumented

However helpful these initiatives by one of the nation’s most progressive governors, we can and must do much more.

All undocumented immigrants facing detention and deportation need lawyers, and they need them now. While those facing criminal offenses who cannot afford an attorney must be assigned a public defender, most immigration violations are categorized as civil offenses, not criminal — never mind the cruelty and severity of the punishment — so no attorney is provided. That’s right, being here illegally is a civil offense, like driving too fast or letting your dog off the leash: You get a ticket, pay a fine and go home. But undocumented immigrants face indefinite detention in a county jail followed eventually by deportation.

What can the Supreme Court do to assure some measure of due process for New Jersey’s immigrants? Article VI, Section 2, Paragraph 3 of the 1947 State Constitution empowers the Supreme Court with authority to adopt rules governing the practice of law, including a requirement for attorneys to pay annual fees into various trust accounts as a condition of practicing law in the state. For example, in 1989, the court created the “Interest on Lawyer Trust Accounts” (IOLTA) Funds program. IOLTA allows for the pooling of interest on portions of attorney trust accounts to finance legal representation of low-income residents in civil court cases.

Since 1989, variations of IOLTA have been established in every state, as well as the District of Columbia and the Virgin Islands. In 2009 the IOLTA programs generated more than $124.7 million nationwide. These funds have enabled nonprofit legal-aid providers to help low-income people with a variety of civil legal matters.

In New Jersey, where IOLTA was established nearly 30 years ago, the fund has awarded grants of over $414 million to Legal Services of New Jersey, the New Jersey State Bar Foundation, and 136 other nonprofit organizations.

These grants provide funding for free legal services to low-income people with civil legal problems. Grantee organizations serve income-eligible persons who have been affected by consumer housing, income maintenance, education, immigration, employment, healthcare, or family law problems who cannot advocate for themselves or afford an attorney, according to the New Jersey Bar Association.

Independent funding source

In short, for more than three decades New Jersey has had a funding source dedicated to serving low-income residents with legal assistance on a variety of civil law issues, including immigration. But the need for more immigration attorneys is so great that every cent of IOLTA could be used to defend detainees, leaving nothing for other just causes, and it would not be nearly enough. A separate funding source, not a raid on IOLTA, is clearly needed.

That’s why we propose that the Supreme Court, using its constitutional powers as it did with IOLTA, promulgate a rule on an expedited basis imposing a special fee of $100 per year on every lawyer in the state — all 41,168 of them, if the American Bar Association’s ABA National Lawyer Population Survey for 2017 is to be believed. The proceeds from this fee would be dedicated to enlisting attorneys to defend New Jersey residents facing possible deportation. Importantly, these funds should not be comingled with IOLTA but would be collected by the administrative office of the court and held in a trust account that we call Justice for All/Justicia para Todos.

The exact number of undocumented immigrants in New Jersey’s detention centers is not known but some data is available. In 2015, more than 5,000 people passed through the Essex County, Hudson County, and Elizabeth County facilities combined, and an additional 1,100 were detained at the former Delaney Hall facility — for a total of 6,100 detainees. In December 2017, there were 3,151 detainees in Newark, 1,896 in Elizabeth, and 1,490 in Plainfield. Lakewood, Kearney, Hackensack, Fairview, Long Branch, Perth Amboy, and Cliffside Park each had more than 200 residents with pending immigration court matters. Using December 2017’s total ICE detainees (7,937), that means for 2018 there are likely to be some 8,000 cases that need Justice for All/Justicia para Todos.

According to federal data, nearly 70 percent of New Jersey’s detainees in “removal” proceedings have no legal representation, which comes to some 5,600 cases in 2018 that need legal counsel, as reported in New Jersey Real-Time News.

This proposed Justice For All/Justicia Para Todos program, if funded at $100 per attorney in New Jersey, would raise $4.1 million per year, supplementing the $2.1 million in Murphy’s budget for legal assistance. This is enough to train and mobilize many more attorneys to aid our Garden State neighbors who happen to be here from another country without proper papers.

While we can and should debate how to make our national immigration system more rational and humane, a sense of common decency and basic fairness must speak to us as legal guardians of the Constitution. However undocumented immigrants are classified, before any person is sentenced to the “cruel and usual” punishment of banishment — euphemistically labeled deportation — they should be entitled to legal representation that can be funded through a modest annual fee on lawyers in the state.

To sum up: We call on the state Supreme Court to use its plenary authority over attorneys — who enjoy a monopoly on the right to represent parties in court — to establish a fee paid into a trust fund dedicated to providing legal aid for New Jersey’s immigrants caught in the ever-expanding ICE dragnet. Thus, we request that as Chief Justice you initiate and expedite a Justice for all/Justicia para Todos rulemaking fee as outlined above.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

Clara S. Haignere, PhD, is professor emeritus of public health at Temple University.

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