Give me your tired, your poor, your huddled masses …

GUEST: Hon. Robert A. Katzmann
VTR: 04/14/09

I’m Richard Heffner, your host on The Open Mind.

And one might, of course, look only at his high judicial position and at today’s guest’s all-ivy-league academic background – an AB (summa cum laude, of course) from Columbia College, MA and Ph.D. degrees in government from Harvard, and a J.D. from Yale Law School, where he was an editor of the Yale Law Review.

Then perhaps a quite intriguing article in the New York Times last month about U.S. Court of Appeals Judge Robert A. Katzmann might seem passing strange. Its title, “In A City of Lawyers, Many Immigrants Fighting Deportation Alone”.

It’s about a highly regarded judge who has long now been concerned with the unmet legal needs of the immigrant poor.

As Nina Bernstein indicated in the Times, “In the immigration court system, where no defendant has the right to a court-appointed lawyer, and some of the most vulnerable end up in the hands of fly-by-night operators who bungle cases wholesale”, it was today’s guest who took a “rare step”…”Almost among the nation’s federal judges, he has alone used the prestige of his office to push for more and better legal representation of immigrants”.

But, given a legal career distinguished largely by his scholarly focus on constitutional matters, particularly relations between Congress and the courts –an area I trust we’ll get to today or at another time — I would begin our program today by asking Judge Katzmann what led him in 2007 to focus his now famous lecture of the Association of the Bar of the City of New York on what he called “The Legal Profession and the Unmet Needs of the Immigrant Poor”. Why did you focus on that?

KATZMANN: I focused on it because within a short period of time our court came to review many, many immigration cases. In, in 1999 our docket of immigration cases was 4%. By 2005 our docket of immigration cases had risen to 39%.

HEFFNER: 39% of all the cases before the court?

KATZMANN: Of all the cases before the court. And seeing that many cases, I came to be very concerned about the poor quality of briefing that we saw from lawyers representing immigrants.

And as you, as you correctly noted immigrants are a very vulnerable population in our society. They come to this country not knowing the language, not knowing the culture, often in fear, living life in the shadows. And they are too often the, the victim of unscrupulous lawyers.

Too often I would see briefs, for example, that were boiler plate briefs, where the attorneys paid very little attention to the facts of the particular case.

And, and, and I would see briefs from the same lawyers in a number of cases involving different individuals where the only change was the, was the name change. And I became very concerned that this population of, of, of people … of, of, of immigrants were not receiving the kind of representation that they should.

I have, like all of us … except all of us who are Native Americans … we all come from an immigrant past. And my, my father is a refugee from Nazi Germany. My grandparents on my mother’s side are from Russia. And I can still hear the, the accents of my, of my ancestors. And those … those ancestors who came for all of us … helped make this country to be a great country and I think that we have an obligation … all of us … to certainly honor our past by doing justice to those new immigrants who enter this, this country.

So, when I was asked to deliver the Marden Lecture at the, at the City Bar on any subject that I wished to—dealing with the legal profession. I chose immigration.

I was looking at it from the perspective of, of the cases that we saw at the Second Circuit. But I decided that what I really wanted to do was to understand not just the cases that, that we see, but to get a sense of the whole process from the very outset.

And what I learned, looking at the process from the, the very outset was that the problem was even worse than I, I had observed.

HEFFNER: What do you mean?

KATZMANN: … in the Court of Appeals. Well, if you look at the very outset in immigration court itself, only 35% of immigrants have representation whatsoever.

That is extraordinary. When you think of how much is at stake for the immigrant, whether that immigrant can stay in this country … whether that immigrant can stay with his or her family. Not having a lawyer in 65% of the cases … this is a nationwide figure … is, is, is just mind-boggling.

HEFFNER: How did this … how could that have come to pass?

KATZMANN: The reason …

HEFFNER: How could your system, the judicial system have permitted that?

KATZMANN: Well, the, the statues that Congress has, has passed have said that, that immigrants can have lawyers … anybody can have a lawyer … anyone is entitled to a lawyer, but not at government expense. And in these cases that we’re dealing with, for the most part, are not criminal cases which would involved court appointed attorneys. But civil cases, cases involving asylum requests.

And the law is that if you’re an immigrant, you are entitled to a lawyer if you can pay for that lawyer. But most of these immigrants can’t afford a lawyer.

Indeed the laws of our country are such that depending on your status … if you are … don’t have the necessary papers … you can’t be employed. So it’s very hard to afford to get a lawyer in the first place. In many circumstances what happens is that the lawyers who are … who do take these cases … and let me say that there are many wonderful lawyers in the Immigration Bar and I do not mean to taint a Bar that has many, many excellent practitioners.

But I do want to say that in all too many cases the lawyers that the immigrants have are not worthy of the representation that they’re clients deserve.

HEFFNER: Now I gather from the story that appeared in the New York Times … you’ve spent a lot of the last couple of years since you delivered the lecture at the Association of the Bar of the City of New York working up those who would respond to your plea that they should be represented even when they themselves cannot afford representation.

KATZMANN: That’s what we’ve been trying to do. And I’ve been, I’ve been very gratified by the lawyers who have, who have responded.

My first pitch as I try to convince lawyers to do more is to … frankly first … ask them to remember their own immigrant past …

HEFFNER: Which, as you say, everyone has to at some point in the past.

KATZMANN: At some point in the past except for our Native Americans. And secondly I, I ask them to think about what is the responsibility of the lawyer in society.

When you think about it, the legal profession has a monopoly on the administration of justice. The State affords to, to lawyers autonomy in meting out justice in society. There are the lawyers, there, there are the judges.

And surely, this is, this is my view that there must be some reciprocal responsibility on the part of lawyers to the greater good.

Several years ago I was involved in directing a project called “The Law Firm and The Public Good” that looked at the law firm’s obligations to pro bono service more generally.

Here in a very specific area that is immigration where the need is so great, it seems to me an apt area of focus, of, of the legal profession.
And I sought out lawyers who know much more about immigration than I, I, I could ever hope to. Lawyers like Robert Juceam. There’s a lawyer at the … Fried Frank been very involved in these issues over the years. And Peter Eikenberry of the New York City Bar who is very interested in, in these kinds of issues. And I conceived of this idea of creating a series of Task Forces that would look at the immigration problem in manageable parts.
And that what we tried to do is to think analytically about what the problem is and what we can do, as lawyers, in terms of addressing some of these issues involving the unmet needs of the legal poor.

HEFFNER: And how has this worked out?

KATZMANN: It’s working out … it’s working out well, with a caveat that the problem is so massive. The numbers of immigrants needing legal representation are so, so vast that one is reminded of the, the, the old saw that “my boat is so small and the sea is, is so large”.

But we’ve I think have been making very good, very good progress. The, the first task force involves an examination of, of what law firms, what non-profit organizations and there are many non-profit organization dealing with immigration, doing excellent work. Law school clinics … what all these entities can do to do more.

The second task force is looking at mechanism for service delivery … what’s going on right now? What works, what doesn’t work.

And the third taskforce that we’ve set up is looking at how do you root out the, the very bad lawyers. And also, how do you educate lawyers who want to do a good job. How do you reward those lawyers who are doing a good job?

So, we’ve been meeting in the mornings at the courthouse … a group of some 50 lawyers at 7:45 … we start at 7:30, sometimes 7:45 and we meet and, and we discuss these, these kinds of issues. And I think that we’ve been making good, good progress in terms engaging the legal community in these, in these areas.

We hope to take advantage, as it were of the, of the sad economic downturn that we’re in. Lots of law firms are saying to their incoming associates, “we don’t have the work to, to give you right now, but here’s a stipend … come back in a year.”

And what we’d like to do is to say to those lawyers, we know how you can use your stipend on some, on some worthy activity … working on issues having to do with the, the immigrant poor. So that’s, at present, our current, our current focus.

HEFFNER: How goes it? What progress?

KATZMANN: Well, we’re having a series of meetings in the next few weeks. Because firms have just come online to say that they are offering these deferments and we’ve been getting an overwhelming response from young lawyers who are interested in working in this … in these areas.

Then it will be a question of finding those to, to train and supervise these young lawyers. And that’s an administrative matter, but we think we can, we think we can tackle it.

HEFFNER: One would have to assume that this is the lot of the immigrant because he or she is among a group of people who are … if not despised … at least not cared about in our society. And how do you go about remedying that?

KATZMANN: Well, I think that that’s a question of, of, of, in a sense, leadership. And I know, I’m not in politics … I’m in, in law, but what I’ve observed is that at least at the … certainly at the Presidential level the last few administrations, across party, have been in favor of, of, of helping the immigrants generally. There have been various legislative proposals that have been set forth and I leave that for the legislative and political arena.

But I think part of it, part of it is, is leadership. I think a lot of it is overcoming fears. That especially when there are concerns about joblessness, when there are concerns about people losing their jobs and not wanting their jobs to be taken by others at lower wages. And concerns about immigrants taking those jobs. I think that, from what we read in the … in all accounts is, is part of, is part of, is part of the problem. There’s also a concern, obviously about the resources that immigrants take up in terms of, of society.

But that has always been the story of America, which is to say that you have immigrants who come, who work hard, who then enter the mainstream of society and then help make the society even greater in part because of the diversity of that, that society.

HEFFNER: What, what role could the judiciary have played or could play now in assuring even the immigrant the right of representation?

KATZMANN: Well, with respect to …

HEFFNER: Paid by the state if necessary.

KATZMANN: Paid by the state if necessary. The legislature is, is ultimately the body that will have much to say about whether there will be public funding of, of lawyers.

HEFFNER: Has made …

KATZMANN: … in the non-criminal context. Because in the civil context generally the state has been very wary of paying because of the costs.

Because if you think of the full panoply of civil matters that involve society. If … the argument of the state has been, the legislature’s has been if the legislature … if the public fist had to take care of everyone who had a, a lawsuit it would lead to the proliferation of law suits.

But, I think that what could be said in this context, in the context of immigrant is that immigrant involves fundamental liberty interests.

HEFFNER: Deportation, ultimately.

KATZMANN: Deportation …

HEFFNER: … which is hardly a civil matter, is it?

KATZMANN: Deportation is, is a matter that crosses all, all categorization and, and of course another way to do it, would be to address the problem, and again, this is beyond my purview as a judge, but there are various legislative proposals that seek to create some sort of passage to, to citizenship, over time.

And if there was some sort of more comprehensive examination of the issue than a lot of the legal questions that we’re talking about might, might change.

HEFFNER: But, Judge Katzmann in the past, over our long history, the judiciary has, at crucial points, imposed it’s own reading of our basic instrument to bring about changes even those that are almost parallel to what you seek here. Could the court not play a more active role?

KATZMANN: I’d love to answer that question which, as usual, is a typically incisive, right to the heart Professor Heffner question. But as a judge, if I were to answer that question right now in the abstract and if I were to get a case that posed that issue to me, I would have to recuse myself …

HEFFNER: Ahh …

KATZMANN: … because I would have rendered a judgment on, on an issue before. And so, I, I, I respectfully ask that I …

HEFFNER: Okay … I withdraw the question …

KATZMANN: I pass.

HEFFNER: … as I phrased it. But let me ask another question. Has any member of the judiciary been … the federal judiciary been faced with this question?

KATZMANN: We haven’t had cases directly confronting that, that issue. We have issues that are close to that. And I think it’s inevitable that the system will have to deal more and more with such, with such questions.

HEFFNER: Let me … let me … enough said. I’ll get to my friends who are lawyers and try to get them to bring such cases.

What about the question of representation, inadequate representation. What progress, if any, have you and the colleagues who meet with you so early in the morning been able to make?

KATZMANN: I think that with respect to the quality of representation … the, the fact that there is a spotlight on the quality of representation I think makes lawyers, I think … I like to think, anyway … a little more cautious in representing their clients.

What we’d like to, to do is to see there are ways to increase the sanctioning powers of immigration judges in immigration court proceedings.

HEFFNER: Sanction against the attorneys?

KATZMANN: Against the attorneys. And at, at present that’s a very limited power itself. And we’d also like to find ways to encourage the bar associations to work with the immigration authorities in terms of disciplining lawyers, disbarring lawyers where necessary.

And, up to now, there hasn’t been a process in place to facilitate that kind of oversight. The first department in New York is now looking into … a committee of lawyers is looking into how to oversee a process whereby faulty immigrant representation can be identified.

See, the problem is … a large part of the problem is … in the normal setting, if you or I were to be represented by a lawyer who was deficient … we would … we would complain about it if it were so bad. And we would know who to complain about it to. The immigrant …

HEFFNER: Yeah.

KATZMANN: … isn’t in that situation so it, it really depends upon the immigration judges. It depends upon the judges in, in the Board of Immigration Appeals who hear the cases from the immigration judges. And we, in the Federal Courts to keep a watching brief and, and to develop protocols which would enable the system to work such that where counsel who’ve been deficient come before us … there’d be some way to identify, not only identify them, but to, to deal with them.

And that’s an issue that requires a lot more attention and thinking, but we are in that process right now.

HEFFNER: When you say, “we are in that process right now”, could I as a civilian feel comforted by that, or if I had the knowledge could I go back and say, “My god, the courts have been confronted by inadequate representation before and have really, over a long period of time, not done very much”. Would I find that to be true?

KATZMANN: Well I would … in, in the context of, of, of these immigration cases …

HEFFNER: No, I mean generally.

KATZMANN: Generally, generally. I, I would say that at the Court of Appeals in the, in the cases that we see and this is, this is wholly anecdotal … the quality of representation is, is good, as a … as a general matter.

HEFFNER: MmmHmm.

KATZMANN: In our Circuit certainly, it’s, it’s a … the bar is … it’s been an excellent bar. In immigration, until the last few years, we would only see a few cases now and then in the area of immigration.

But now seeing the totality of these cases one gets a sense of the full sense of the, of the problem that one wouldn’t have had ten years ago.

And you might ask, “Well, why now? Why is it that in the last several years we’ve had this incredible increase in the number of cases?”

In part, it has to do with the fact that the Executive Branch which basically brings these cases … the cases are heard in Immigration Court which is part of the Executive Branch and then reviewed by the Board of Immigration Appeals which is part of the Executive Branch and then goes directly to the Court of Appeals.

In the Executive Branch there was this huge backlog and the Executive Branch decided to deal with the backlog …

HEFFNER: By pushing them …

KATZMANN: By pushing them to the Federal Court. And the way that they were able to push them to the Federal Courts was by streamlining the process. Rather than have three judges of the Board of Immigration Appeals review an immigration judge’s case … it would be one judge.

Rather than having a full decision … there would be a summary decision. And of course in the aftermath of 9/11 with all the fears about terrorists in our midst, the push to move on this immigration backlog became even greater.

HEFFNER: Understood, I’m almost sorry I asked the question. But thank you so much for joining me today Judge.

KATZMANN: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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