The Criminal Carve-Out: Denying Representation to Low-Income Immigrants

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By Elizabeth Lewis and Holly Mell

New York City has historically valued protection of the right to legal representation and has historically provided public funding for free legal representation to immigrants facing detention and deportation – but Mayor de Blasio is disrupting this history by expanding the “criminal carve-out.”

The criminal carve-out is a provision that excludes immigrants convicted of one of 170 possible offenses from services and policies. The criminal carve-out emerged in the context of civil detainer laws, a legal provision through which Immigration and Customs Enforcement (“ICE”) can request local and state law enforcement to detain an individual for an additional 48 hours after he or she is released by law enforcement, in turn providing ICE agents extra time to decide whether to initiate removal proceedings (the process of deportation).[1]New York City has traditionally refused to honor such detainers, except in circumstances in which an individual has been convicted of an offense enumerated in the criminal carve-out regulation (NYC Administrative Code § 9-131 and § 14-154). If an individual has been convicted of one of these 170 “serious or violent offenses” – ranging from aggravated murder to unlawful fleeing a police officer in a motor vehicle to falsely reporting an incident – the regulation requires law enforcement to honor the detainer.[2]

The point where criminal law and immigration law intersect can prove perilous for noncitizens. After being convicted of a crime, noncitizens experience a variety of harmful collateral consequences. These may include inadmissibility to attain lawful permanent residency (“green card holder”), barriers to naturalization, or being subject for removal. At this intersection, noncitizens often experience scant protection of their rights, especially fundamental due process rights specifically accorded to all persons (not just U.S. citizens) by the Constitution; namely, the right to be heard in court and to have fair representation. However, when it comes to immigration matters, noncitizens are not guaranteed the right to a lawyer, despite the clear-cut due process provisions of the Constitution and despite the high stakes personal, human consequences of immigration law. As former City Bar President Carey Dunne stated, “it’s hard to see why appointed counsel is still denied to non-citizen[s] […] facing detention and deportation.”[3]Deportation involves extremely high stakes—“all that makes life worth living,” as the Supreme Court has said.[4]

However, when it comes to immigration matters, noncitizens are not guaranteed the right to a lawyer, despite the clear-cut due process provisions of the Constitution and despite the high stakes personal, human consequences of immigration law.

Despite this, Mayor de Blasio employed the supporting reasoning of the criminal carve-out to direct and limit how public funding is spent in legal defense for immigration matters. The mayor’s application of criminal carve-out to legal defense funding effectively bars an organization from using city funds to represent an individual who has an enumerated conviction, even outside of a detainer context. Not only is the city refusing to provide the protection from ICE detention that it otherwise provides to other immigrants, it is also refusing to provide the legal representation that people will desperately need once the city delivers them into ICE custody. And beyond that, the city is even refusing to provide legal representation to people who are not detained and may be pursuing affirmative immigration relief, such as family-based petitions, asylum, and VAWA petitions (for victims of domestic violence). All of this is particularly troublesome and doubly tragic inasmuch as many indigent defendants plead guilty to charges simply because they cannot afford to post bail.[5]

Many legal service providers that have contracts with New York City – which primarily includes those that provide legal assistance to low-income individuals – have had their contracts altered to include the criminal carve-out. Since early 2017, the New York Immigrant Family Unity Project (“NYIFUP”), a program which works with public defender offices to provide representation to immigration detainees, has been prohibited from using city funds to represent noncitizens subject to the criminal carve-out. Subsequently, other organizations have seen the carve-out provision appearing in their contacts with the city, including ActionNYC, Immigrant Children’s Relief Advocates Effort (ICARE), and organizations with funding through the Immigrant Opportunities Initiative (IOI) program (including African Services Committee). Organizations may still be able to represent excluded noncitizens under other funding sources. But these alternative sources of funds are insubstantial by comparison. The net effect is the extension of the criminal carve-out to city immigrant legal defense funding greatly limits the availability of legal representation to many noncitizens.[6]

In addition to the direct limitation on how funds are spent, de Blasio’s application of the criminal carve-out provisions to funding may have indirect effects on how legal service organizations are able to operate. First, it requires organizations to do extensive screening for all potential clients, creating a variety of problems. Organizations with city contracts will have to screen potential clients for criminal convictions, including running background checks, before even performing consultations. If a potential client has a disqualifying conviction, lawyers are in the difficult position of having to explain to clients otherwise eligible for relief that they are unable to represent those clients, including unaccompanied minors seeking asylum, domestic violence survivors seeking VAWA relief, and even green card holders seeking naturalization. Lawyers are also unable to be compensated for the time they spent completing the required screen if the potential client has a disqualifying crime.[7]Second, the criminal carve-out may create the wrong impression that noncitizens with disqualifying convictions are undeserving of competent legal protection, compelling private donors, and other funding sources to include this provision in their contracts or pulling funding from programs that defend excluded noncitizens.

More fundamentally, the criminal carve-out works directly against the city’s other efforts to ensure that low-income immigrants are able to remain with their families and communities, at the same time as it undermines New York City’s representation of itself as a sanctuary city.

The offenses enumerated in the criminal carve-out cover a wide variety of acts, many of which have little bearing on a person’s ability to positively contribute to their family, community, and the United States as a whole. The mayor argues that the percentage of noncitizens who have these convictions is low, which is accurate, but they are also going through removal proceedings at a disproportionate rate. Between December 2016 and May 2017 – just before the carve-out went into effect – 20% of new NYIFUP cases would have been excluded by the carve-out.[8]Furthermore, all immigrants, especially those who are detained and who face possible deportation to dangerous countries, should have competent counsel without first having to be screened in respect to their criminal history.[9]

A criminal conviction should not reduce a person’s right to counsel; if anything, it should ensure such a right, because that person’s ability to seek immigration relief will be more difficult. Nevertheless, many noncitizens with criminal convictions are detained during their removal proceedings, thus limiting their resources to research and pursue their own cases. And many of the forms of relief available to such noncitizens are legally complex, requiring a lawyer to effectively build a case.[10]More fundamentally, the criminal carve-out works directly against the city’s other efforts to ensure that low-income immigrants are able to remain with their families and communities, at the same time as it undermines New York City’s representation of itself as a sanctuary city.


[1]ACLU “Immigration Detainers” (April 17 2018) https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses/immigration-detainers

[2]New York City, N.Y., Code § 9-131 (2018); New York City, N.Y., Code § 14-154 (2018)

[3]New York City Bar Association, President’s Letter: The City Bar Takes on Immigration Reform (July 2013), at http://bit.ly/2qgUJtK.

[4]Ng Fung Ho v. White, 259 U.S. 276, 284 (1922); Padilla, 559 U.S. at 364 (2010).

[5]Victoria F. Neilson, “The Need to Fund Immigration Legal Services without a Carve-out Based on Certain Convictions”, NYC Bar (January 31, 2018), http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/the-need-to-fund-immigration-legal-services-without-a-carve-out-based-on-certain-convictions

[6]Letter from John S. Kiernan, president, NYC Bar Association, to Mayor Bill de Blasio, “Re: Due Process, Universal Representation, and the New York Immigrant Family Unity Project” (June 1, 2017) http://s3.amazonaws.com/documents.nycbar.org/files/2017154-NYIFUPsupport_FINAL_6.1.17.pdf

[7]Victoria F. Neilson, “Ending the Funding, ‘Criminal Carve-out’ for Immigration Legal Service Providers”, NYC Bar (June 01, 2018), http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/ending-the-funding-criminal-carve-out-for-immigration-legal-service-providers

[8]Roshan Abraham, “Major Impact Seen from Mayor’s Carve-Out of Deportation Defense Program”, City Limits (July 10, 2017), https://citylimits.org/2017/07/10/major-impact-seen-from-mayors-carve-out-of-deportation-defense-program/

[9]Victoria F. Neilson, “The Need to Fund Immigration Legal Services without a Carve-out Based on Certain Convictions”, NYC Bar (January 31, 2018), http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/the-need-to-fund-immigration-legal-services-without-a-carve-out-based-on-certain-convictions

[10]Letter from John S. Kiernan, president, NYC bar Association, to Mayor Bill de Blasio, “Re: Due Process, Universal Representation, and the New York Immigrant Family Unity Project” (June 1, 2017) http://s3.amazonaws.com/documents.nycbar.org/files/2017154-NYIFUPsupport_FINAL_6.1.17.pdf