Former United States District Court Judge Shira A. Scheindlin is a member of the Litigation Practice Group at Stroock...
Monica Bay is a Fellow at CodeX: The Stanford Center for Legal Informatics and a columnist at Above The Law. She also...
While the Trump administration has brought about a significant number of changes, perhaps the most notable are the policies regarding immigration. In this episode of Law Technology Now, host Monica Bay talks to former United States District Court Judge Shira Scheindlin about the American Immigrant Representation Project (AIRP). This non-profit organization was created by a group, including Scheindlin, in order to allow those facing deportation access to counsel. In their discussion, they talk about the driving reasons that motivated this project and how listeners, especially young lawyers, can help.
Former United States District Court Judge Shira A. Scheindlin is a member of the Litigation Practice Group at Stroock & Stroock & Lavan and serves as an arbitrator/mediator under the auspices of JAMS.
Law Technology Now
The American Immigrant Representation Project with the Honorable Shira Scheindlin
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Monica Bay: Hi. I am Monica Bay and welcome to Law Technology Now. We have a wonderful guest today and very compelling information that we are going to talk about, and it’s Judge Shira Scheindlin, who I suspect many of you are very, very familiar with. Welcome to our show.
Shira Scheindlin: Thank you.
Monica Bay: It’s my pleasure. So you have been instrumental in creating a new organization called the American Immigrant Representation Project. Can you tell us a little bit — actually before I have you answer that question, for the two or three people who might not know you, could you tell us a little bit about your background and what you have been doing in the judiciary.
Shira Scheindlin: Sure, I would be happy to do that. In 1994 I was appointed by President Bill Clinton to be United States District Judge in the Southern District of New York. I am sure your listeners know that’s the trial court, federal trial court located in Manhattan.
I sat on that court for the last 22 years, had a wonderful experience and had the opportunity to work on a number of cutting-edge issues, including one in which I got to know you, which is the world of e-discovery, but I also got to work with some very big systemic change cases, such as the challenge to New York City’s Stop-and-Frisk Program, which pretty much ended with my decision in Floyd v. City of New York.
And I also had a major case involving solitary confinement, and the conditions of solitary confinement in the State of New York have been revised completely because of my decision.
So I have had wonderful cases in my 22 years on the bench, but I decided after that amount of time to step down, because I wanted to be able to be more active in the community, which is what we are going to talk about today. But I also hope to be able to write and to speak on many issues that are important to me and have been doing that.
So I wrote a piece last May for The New York Times about the role of the trial courts in the federal judiciary. Then just a week or two ago I wrote a piece in The Washington Post about the criminal justice system and mandatory minimums and how they distort the people that are in prison and cause us to end up with mass incarceration because of the mandatory minimums. So I have had a chance to speak out on a number of issues that have concerned me since leaving the bench.
I am now both in private practice, but more importantly, working as a mediator and arbitrator with JAMS. So I think that brings us to the current moment and now I am happy to turn to my more recent work, if you are ready for that.
Monica Bay: I am, but I suspect that you might want our folks to know that you are at — will you pronounce it for me, Stroock, is that the correct way?
Shira Scheindlin: Sure. So the law firm is Stroock & Stroock & Lavan and I am a counsel there, but as I said, my primary work is with JAMS, which stands for Judicial Arbitration and Mediation Service, where I do work as a mediator and arbitrator and also work as a mock trial judge. So that’s my current employed side, and now we can turn to what I consider the pro bono side, which is of equal, if not greater, importance.
Monica Bay: Yes. And as I started to say in the beginning and then stopped myself, please do tell us how the American Immigrant Representation Project got started?
Shira Scheindlin: Thank you for that opportunity, I would actually like to tell that story. After the election in November I know a lot of lawyers were thinking to themselves, what can I do to be active now, there’s going to be changes coming from Washington, some of those changes may not be things that we agree with and how can we become active?
And when I thought about it for myself, very personally, I thought, well, the area that I think is going to need the most attention is immigration defense work, because during the campaign the then candidate said that he really intended to ramp up sort of a war against immigrants and he would seek to deport millions of people, and he would seek to target Muslims, and he would seek to close our borders and to be rid of people he considered dangerous, and there was a lot of rhetoric in the campaign. Of course, we couldn’t know what would happen if he actually became the President, would he actually carry these policies out, that’s something we couldn’t know, but that was the campaign rhetoric.
So once he was successful and became the President-elect, this is the area I decided to focus on. So I together with a few, very few lawyers in New York decided that we would build an organization, which we named American Immigrant Representation Project, and the purpose of the organization was to seek volunteers from big law firms in large numbers, and those volunteers we would hope to fund by fundraising and then we would hope to deploy them to actually do removal defense work at detention facilities on a national scale.
So for example, some cities have very robust defense programs. For example, New York City does. Again, because of an initiative from a judge, Judge Katzmann of the Second Circuit, Judge Robert Katzmann stimulated the Bar to found a project here that has helped New York City to provide lawyers to represent people in removal. So New York City is in good condition. And now Governor Cuomo of New York State is starting a project called the Empire State Project to work on removal defense.
But that’s just New York. In the other 49 states, some have programs, but many don’t. So that was the idea of the American Immigrant Representation Project was to marry the forces of big law, funding from big law and from outside funders like businesses and foundations and then to deploy lawyers to detention facilities to help people in removal proceedings.
Monica Bay: And I had the great pleasure of writing an article about your project for Above the Law and I was very impressed by the group of people that you got to start your organization. Can you tell us a little bit about Faith Gay, Michael Patrick, Marjorie Peerce, if I am pronouncing that right, and Lenni Benson.
Shira Scheindlin: Sure. Those are the Executive Committee. We have actually formed a Steering Committee, which is now up to approximately 30 people, and I would like to tell you about the Steering Committee. So the names that you mentioned were the original brain trust and we now call ourselves the Executive Committee of the Steering Committee.
Faith Guy is a Partner at Quinn Emanuel. She is an amazing woman, super energetic, busy all the time, but she has thrown herself into this project. She has many friends in big law and has been very instrumental in providing their names so that we can approach them to participate. And the good news is we already have 30 firms that have decided to join the project and to give us volunteers. We have also raised more than $350,000 already and growing I hope daily, and Faith has been very, very active in that end.
Professor Lenni Benson is another remarkable woman. She works around-the-clock. This is her field. She is the only one of the five of us who really specializes in immigration law. She is a Professor of Law at New York Law School, and she is in charge of our Subcommittee on Training.
So what she is working on now is preparing training materials for our volunteers. She will produce reading lists that they can start reading soon and then eventually she is collecting videotape training materials from many organizations, including her own, and that will be the training materials that will help our volunteers go forward.
The other members of the Executive Committee, Marjorie Peerce, she is a specialist in criminal defense work, and that’s very important, because our original focus was going to be on folks who are in removal, because they have a prior criminal conviction, and we will talk about that more during this podcast. But for now I just want to say that while that doesn’t initially sound attractive to represent somebody with a prior criminal conviction, I must point out that we are not talking about rapists and murderers as the President is talking about.
People can have very minor criminal convictions, like turnstile jumping or an identity theft or driving under the influence, or even an open container, standing in a line with a beer bottle and a brown bag. So some so-called criminals are really people who when they were young made a small mistake, maybe a very small amount of marijuana in their pocket or whatever the type of crime is.
But I want your listeners to understand that when I say prior criminal conviction, I am not talking about those subgroups who have serious felony convictions like murder and rape, that’s a very small percentage of those with prior criminal convictions.
So anyway, back to Marjorie Peerce, because she is an expert in criminal defense law, she is very helpful to this project, because part of the defense will eventually be to look at those convictions and analyze whether there’s anything about them that — they really don’t — they should be expunged or they are really just a misdemeanor or a minor misdemeanor, or it was a youthful offender, all of that might be a defense to removal, so that’s her role.
The fifth member, Michael Patrick, was also an expert in immigration law. He practiced for more than 30 years in the field of immigration law. He was with the US Attorney’s Office as their expert in immigration law and then joined the Fragomen Law Firm, which is a leading law firm in immigration work.
So that’s a quick sketch of the five members of the Executive Committee, but now we are up to maybe 30 members, and very briefly, I won’t go through every name, but I just want to describe the 30 for a minute.
We have partners from nine big law firms, I counted this morning, from nine big law firms on the Steering Committee, and they are on the Steering Committee to show that big law is supporting this project.
The other members of the Steering Committee are representatives of many, if not all, of the nonprofit organizations that do immigration defense work, such as the National Immigration Project of the National Lawyers Guild, the National Association of Criminal Defense Lawyers, the Immigrant Justice Corps, the Southern Poverty Law Center, et cetera; I am sure I have left somebody out, the ACLU, but the point is we have tried to gather all of the many groups that do already defend people in removal proceedings around the country.
And the only other member I would like to give a special shout-out to is we also have Monica Enand, who is the CEO and President of Zapproved, which is a legal tech support company. And she just volunteered, she said — I was speaking at one of their events and she said I would love to help, and they have been terrific in providing tech support, such as creating a logo, creating a website, and she has also reached out to others in the tech field to see if they will help fund our project.
So that’s our Steering Committee, big law entities that do this kind of work and then Monica Enand of Zapproved, who so helpfully is assisting us in this work.
Monica Bay: Were there other reasons judge that made you so inspired to want to address this topic?
Shira Scheindlin: Well, I think my own personal background comes into play here. I am the daughter of immigrants myself and as a judge on the court every two or three months each judge gets a turn to swear in new immigrants at a naturalization proceeding, and so you would swear in 250 or 300 new immigrants every few months, and you made a speech. And in that speech I talked about what it means to be a new American, what it means to be the daughter of immigrants, that both my father and my stepfather came from abroad; one from Russia, one from Germany.
And I know the history of this country has been that we have always accepted immigrants. We have built our society on immigrants. Immigrants have made such a difference in this country.
I know that recently many of the tech companies joined an amicus brief to the Ninth Circuit when there was a fight over the President’s new executive order and they pointed out that 40% of their CEOs came from abroad. They were immigrants to this country. So immigrants have been our history. We have the Statue of Liberty for a reason. We welcome immigrants.
And this was all in my own personal background. It meant a lot to me. And the thought that we want to close our doors to immigrants and we want to exclude certain people, we want to get rid of certain people, this really troubled me personally, it called out to me, given my own history, my own feelings about immigrants. So I hope that answers your question in a different way.
Monica Bay: I completely resonate with what you are saying, because I come from a family that immigrated also. Mine was probably one level longer than yours, but it was very, very obvious to me how important that was. I am also the daughter of an airline pilot and I had the great experience at a very, very young age to travel all over Europe and that was something that really, really affected me and shaped who I am too. So I completely resonate to what you are saying about that.
So the first steps you have talked about, what’s next? What has to happen and how can our listeners get involved with what you are doing with AIRP?
Shira Scheindlin: Right. So the next steps are first, we are continuing to raise volunteers, and we are hopefully continuing to raise money. So any interested person listening to this podcast is certainly welcome to volunteer if they are an attorney or to give money to the AIRP. I will say that our fiscal sponsor is the American Immigration Council and so the check goes to American Immigration Council, earmarked for the AIRP.
But putting that aside for the moment, the next step is once that group is raised, they begin training, which we hope will take place in the next two weeks, and then within the next four weeks or so we will actually have detention facilities selected, where we will be sending our volunteers to work on the ground on removal defense cases. So I think that probably brings me to the point where I need to describe what’s going on in today’s world.
So just this week as the President issued a couple more of his executive orders that relate to immigration and he is really planning a big push with what he calls removable criminal aliens. Now, he has given the number of 3 million such people, but there aren’t 3 million such people; his figures, as is often the case with his figures, are just inaccurate.
There is a number floating around of 2 million, but half of those have green cards, so they are not deportable.
They are probably 820,000 unauthorized immigrants who have been convicted of crimes, but of those a good number are so minor that generally that doesn’t count, so there’s probably about 650,000 people in the US now who do have felony convictions or other misdemeanors.
But that’s not the limit anymore. Now he says he also wants to go after people who may be even suspected of a crime. So not only those who are actually convicted, but those that an Immigration and Customs Enforcement Officer or the Customs and Border Patrol Officers, if they have any reason to even think that somebody might be a danger to society, then they can pick them up also if they are undocumented.
So that now means that based on mere suspicion, not even a conviction, but a suspicion that somebody could be someone who might commit a crime. I mean, just think about that, and obviously that could lead to abuses like racial profiling. And that’s the real worry that with such a vague definition of what is a criminal alien, not even a conviction, much less a major conviction, but somebody who you think might have criminal tendencies or might be a gang member or might be a terrorist.
So let’s go beyond that now and say all these folks are picked up, hundreds of thousands, maybe close to a million on the theory that they either have a criminal conviction, no matter how minor, or they might be dangerous. Now they are sent off into a detention facility. And what we know is that if someone is detained, remains detain, can’t make bond, and has a lawyer, that person is 10 times more likely to be able to stay than if they don’t have a lawyer.
So what the ICE is counting, ICE again being Immigration and Customs Enforcement, is that people won’t have lawyers and they will be moved out quickly without any due process, in an expedited removal proceeding and just sent out of the country. And if we can stop that by providing lawyers, the system will have to slow down, which is actually a better thing, because if you slow down you might find that there’s a real defense and you should be allowed to stay.
Now, if a person is released on bond, they are no longer detained, they are called the non-detained, they are 20 times more likely to be able to stay if they have counsel. So it’s very important to try to provide counsel to these people who are being swept up.
Another thing that changed with the new executive orders is that under President Obama the only ones who were in expedited removal were those who were found within a 100 miles of the border, who had been here less than two weeks, because technically they were considered still in transit. But this has all been expanded now.
Now it’s going to be somebody found anywhere in the US, who has been here less than two years, and he is saying all of those people who are here less than two years, found anywhere in the US don’t even get a court hearing. They should be placed in expedited removal too, where they simply are put in the detention facility, have a sort of quick kangaroo court hearing in the detention facility and are sent out of the country quick, quick, no court, no due process, and that’s an enormous change, enormous change.
The only group that he hasn’t really gone back on are the so-called Dreamers, which is the Deferred Action for Childhood Entrants, for that group, the acronym is DACA, he seems to have some pity and he says he is not going after those Dreamers yet. But he is going after their parents, and if the parent actually assist the child, I believe that’s a different group than Dreamers, but if a parent assist a child to come in, he actually wants to prosecute the parent for trafficking.
So there’s a lot of new material here where he says he wants to publicize crimes by undocumented immigrants. He wants to strip those immigrants of privacy protection. He wants to enlist local police officers as enforcers, which many cities are resisting that idea, because it only causes a breakdown in police community relations.
He wants to build new detention facilities, which he has to do, because there aren’t enough facilities, there aren’t enough beds to house the number of people that he wants to go immediately and pick up. So he wants to build these private prisons, and we know a lot about these private prisons, the conditions of confinement there are horrendous. There’s often not any decent medical care, there are no phones or other communication facilities. Families don’t even know where their people have been taken.
It seems to be almost part of the plan, somebody could be picked up let’s say in Philadelphia on the streets and then sent to Georgia, and then moved to Texas, and the family doesn’t even know where they are, neither does the lawyer. So this is all part of the system is to build these new facilities, which is grateful for the private prison business and their stockholders.
He wants to discourage asylum, he wants to speed up deportations, and all this cries out to say slow down, we need to have people have lawyers and have due process rights, which according to our laws, these people who are here have due process right, even if they are not yet citizens or documented.
Monica Bay: It has really been heartbreaking to watch the news a lot. There was a recent story about a family, where the children were citizens and the mom had, as you had mentioned before, some Mickey Mouse little tiny thing and they shoved her out. I mean, it’s just scary when you see these families just being — it’s amazing.
Now, we have been talking a lot about the lawyer’s role, but what role do you have for law students or younger people who are interested in helping on this, are there opportunities for them to volunteer if they are not lawyers?
Shira Scheindlin: It’s a good question and I am not entirely sure of the answer. I know that law students is an easy answer, because most law schools have a clinic working with immigration issues and so the law students do sign up for those clinics and do terrific work. They have done work with removal defense. They have done work on asylum petitions. They have done work in naturalization and citizenship.
And by the way, there are some defenses to removal that can be raised, such as sending someone back who has a fear of being injured in the home country, that’s a fear of return. And there’s also something called the Convention against Torture. If we know somebody is being sent back to be tortured, the Convention against Torture doesn’t permit that. So there are some defenses and law students do work on writing those kinds of petitions or habeas petitions, things like that, so law students, there’s definitely a role.
For non-lawyers, I am not quite sure of the answer, but I understand that non-lawyers sometimes can be helpful with intake. They may be able to interview the folks who are picked up at the detention facilities and at least get the background facts very quickly, so there may be a role for non-lawyers to help with that too.
One of the problems is that at the facilities there’s no modern technology, they don’t have video conferencing, they don’t have cellphones or iPhones or iPads or something that people could use to have a Skype interview with a lawyer, and that’s something I think we are working on.
I met yesterday with a woman who is running a company called LawToolBox and she works with Microsoft, who has used her technology, what she talked about trying to do was to help us to have iPads brought into the facilities that Microsoft might donate, so that at least you could do Skype interviews. If there were 10 iPads, maybe they could do 10 interviews at a time with different people who are swept in and facing removal in 10 days, the lawyer could interview them by Skype.
So there’s a tremendous need for technology here and the tech community, which is a phrase you certainly know Monica very well, could step up and could help us here by providing some free assistance such as the actual physical devices, but also cloud-based technology that could help us track all of the cases of removal, where are the people and what is the status of the case and we could do a lot with them. So I just wanted to mention that too.
Monica Bay: Well, we are running out of time and I want to spend a little bit more time on that wonderful word money. And one of the questions I asked you in my Above the Law column was, what do you need for the money, you said something that really resonated to me, which is, there are so many things that don’t jump right out at you, for example, how do you support travel? How do you get to remote locations? The video conferencing you were just talking about and training, getting food, I mean, there are so many things.
If someone is interested, whether they are a lawyer or a non-lawyer, I am going to give the address for sending it to you, if you don’t mind. If you wish to donate, it’s the American Immigration Representation Project c/o American Immigration Council. The address is 1331 G Street, NW, Suite 200, Washington D.C. 20005. Is there a phone number that someone might be able to call or do they want just to send?
Shira Scheindlin: Actually I don’t have a phone number yet, but I would point out, just to be sure your listeners note that hat’s a fully tax-deductible, that is 501(c)(3), IRS has approved it as such, so it’s important to note that because it’s a question that we are frequently asked.
But you did a great job of describing why we need donations. I know everybody is seeking donations these days, because there are so many issues coming out of Washington that need lawyers and other volunteers to be involved in resisting certain policies, not just in the immigration area, so I know there’s a lot of demands for money, but you did a great job of describing why this project needs money.
It does need to fund attorney travel to remote locations. It does need to see if we can get video conferencing into every detention facility. We do need training materials, and it costs money to do that online. We also want to do online supervision, so we need to set up chat rooms and phone lines, things like that.
And we also will do Know Your Rights Programs at all the detention facilities, which you have to put a poster in, you have to explain, so there will be written materials. So of course there’s a need for funds and I am very appreciative that you gave your listeners a careful and slow address there, so that if anybody does want to contribute, it is very helpful to us.
Monica Bay: If you are a lawyer, but you are not practicing immigration this might be a great time to go to some of the association meetings that are coming up. The American Immigration Lawyers Association has a bunch of regional ones that are coming up very quickly. The Federal Bar Association is having a May 13th program in Denver.
There is a calendar put out by the Immigration Advocates Network. There’s a new one that I couldn’t find too much information about, but it’s ICIRL 2017, the 19th International Conference on Immigration and Refugee Law. So there’s a lot of people out there. And whether you are involved one way or the other, whether you are a lawyer or someone who is just very, very passionate about this, there’s a lot of resources there. And I will turn it back over to you judge for any final comments you would like to make.
Shira Scheindlin: Well, first of all, I have always prized accuracy and I think I spoke inaccurately earlier in the broadcast, never too late to correct, so I use the word two executive orders this week; they weren’t executive orders really, they were documents released by the Department of Homeland Security, the DHS, and they explained all of the things that I said were in these recent executive orders, those weren’t executive orders, but it comes to exactly the same thing. They are enforcement policies that came from DHS and they did the things that I said, expanding the definition of criminal aliens and all of the rest of the things that I mentioned.
So I think as a final wrap up I would only say that we do expect to see vastly increased numbers of deportation orders, they start with notices to appear, which means they are placed in removal, people are going to be picked up on very broad and flimsy grounds, as I said, not just prior convictions, but even suspected of activity.
We are concerned about racial profiling. The President has used the word targeting Muslims, so we know that’s part of his intent in any event. And the numbers are going to be high and there is going to be a great need for counsel. I have already explained what a difference it makes to have counsel.
So I can only summarize by saying, I think this is very important work, and the more people who step up and volunteer for our organization or any other organization, we are all together in this, there is no competition. So if somebody wants to work with the American Immigration Law Association, which is AILA or the ABA, which has a Commission on Immigration or the Southern Poverty Law Center or any one of the many groups, it’s all fine with us. We just want to see volunteers and money poured into the effort to make our country what it really has always been, which is a refuge, a place where refugees can come to and can find safety, and not remain in a place where they are endangered and just not safe and not free. We want to be what America always was.
So I hate to use the phrase that the President uses, but to me that’s how we make America great, by remembering who we are and remaining true to our history and our principles.
So I am very grateful for the opportunity to be on this program and to explain why I am passionate about this issue, why I care, and why I hope we all care.
Monica Bay: Very beautifully said. Judge, if someone wanted to reach out to you, what’s the best way for them to get to you?
Shira Scheindlin: Yes, thank you for that opportunity too. My promise, I have the hardest last name to spell, and that’s of course my email address, so I am going to do it very slowly and hope somebody can catch the spelling. I am happy to get emails. The address is sscheindlin, which is HYPERLINK “mailto:[email protected]”[email protected]. So it’s HYPERLINK “mailto:[email protected]”[email protected]. I spelled it slowly as I could, but if I get emails, I will respond.
Monica Bay: And if you didn’t have your pencil there you can email me, it’s HYPERLINK “mailto:[email protected]”[email protected], so HYPERLINK “mailto:[email protected]”[email protected]. Thank you so much. I am so excited about what you are doing, and you get the very last word before we say goodbye.
Shira Scheindlin: Well, I just want to, again, thank you Monica and thank the producer today for hosting us so that we have the opportunity to get our message out to as many folks as possible. So I am grateful for the time and grateful for the exposure.
Monica Bay: Judge, thank you again, and thank you very much for listening and we hope you will be with us on the next edition of Law Technology Now.
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