Monthly Archives: February 2020

BBA Panel Discussion on Right to Counsel in Eviction Cases

As part of our effort to support the Massachusetts Right to Counsel Coalition, in their campaign to enact a right to counsel for indigent tenants and landlords in eviction cases, the BBA hosted a panel discussion about the issue on February 26.  The event, sponsored by our Delivery of Legal Services section, featured:

  • Chief Justice Ralph Gants of the Massachusetts Supreme Judicial Court (SJC)
  • Annette Duke of the Massachusetts Law Reform Institute (MLRI) and leader of the Coalition
  • Stefanie A. Balandis, Associate Director of Northeast Legal Aid
  • Marc Migliazzo of Ropes & Gray LLP and long-time Lawyer for the Day volunteer in Housing Court

Chief Justice Gants kicked off the event by highlighting why establishing such a right is so important, saying that it will not only protect the rights of litigants who currently go unrepresented but also promote housing stability in communities statewide. 

To understand why legal counsel is especially important in eviction cases, one need look no further than the SJC’s unanimous 2019 ruling (authored by Chief Gants) in the Adjartey case—in particular, its 25-page appendix, which seeks to catalog, as a kind of “one-stop shopping” for lawyers and pro se litigants, all the statutes and court rules that make up the landscape for summary-process cases.  The judge asked for a show of hands in the audience from all who had the read the appendix in its entirety (few went up), then said, “It is hard to read because the law is hard to understand.”  The relevant statutes inherited and adopted the arcane language of property law (think first-year of law school), the Housing Court rules (currently being revisited) are similarly complex and sometimes in conflict with the Rules of Appellate Procedure, and the Legislature has granted considerable rights to tenants over the past 40 years. 

With the BBA set to release a report that will calculate the savings that the state would achieve by investing in an eviction right to counsel, Chief Gants also urged attendees to consider not only the fiscal benefit to the state budget—from avoided costs on foster care, emergency shelter, health care, and the like (as documented first in our 2014 report, Investing in Justice)—but also non-monetary benefits, which can’t easily be quantified. 

Those include, for example, the value of a single parent able to stay at home and thus not have to work out a new individualized education program (IEP) for a child with special needs, as the result of being displaced and forced to move to a new school.  Health and mental health are directly affected by the stress of facing eviction without legal assistance, and figures presented at the event show that household income often rises significantly when tenants are able to stay in place.

As Chief Gants put it, we can’t afford not to enact a housing right to counsel.

Annette Duke offered some background on the Coalition she leads, in which the BBA is a proud member—one of 125 (and growing).  But when the campaign began last year, there were only 13 members.  As Duke recounted, having successfully coordinated the effort to enact legislation to expand the Housing Court to statewide jurisdiction, she sought input on what the next logical step should be and ultimately, after input from community partners, chose to pursue a right to counsel—in large part because of the numbers: There are 40,000 eviction cases in Massachusetts courts each year, and in 91% of them, the tenants are unrepresented.

In January 2019, three separate bills were filed in the State Legislature, by Sen. Sal DiDomenico, Reps. Michael Day and David Rogers (together), and Rep. Chynah Tyler, respectively.  The Right to Counsel Coalition advisory committee then set about studying lessons from the six cities in the US that have already adopted a right to counsel, to learn from their experiences about how to improve legislation that would make Massachusetts the first state to do so. 

In New York City, for example, 84% of represented tenants remain in their homes, eviction filings in court are down 15% overall, savings are showing up elsewhere in the municipal budget, and the new city-funded right to counsel is changing the culture around evictions.  One challenge, however—which Massachusetts will need to be mindful of—is the need to develop a strong pipeline to train and recruit lawyers for right to counsel. In Massachusetts, we are fortunate to already have law schools with clinical programs based in Housing Court.

The Coalition has now put forward a new draft that incorporates those lessons, and the Judiciary Committee is expected to consider it in the next few months.  Duke offered an overview of its main points:

  • State funding for the program must come from a new stream, rather than draw from existing resources in the budget for legal and housing-stability assistance.
  • The program would be based in a newly-created Office of Civil Justice, housed within the Executive Office of Housing and Economic Development.
    • First, though, a committee would engage in a one-year study on how best to implement and administer the program.  (Many of these details are intentionally left to this committee to determine.)
  • The right would extend to litigants who are below 200% of the poverty level (which translates to $52,400 for a family of four), covering both tenants and owner-occupant landlords of two-family units.
    • This would include full representation in litigation and require a Civil Justice Committee to make recommendations about “upstreaming”—that is, outreach, education, and guidance for people early in the process, after a notice to quit has been served but before any court eviction has been filed.

On upstreaming, the Access to Justice Commission’s Justice For All Housing Pilot Project, operating out of Lawrence and supported by Northeast Legal Aid and Lawrence Community Works, is showing success in identifying vulnerable tenants when they first become at risk, helping virtually all its clients remain in their homes. 

At the other end of the continuum, the Lawyer for the Day program in the Boston Housing Court—a partnership among the BBA, Volunteer Lawyers Project, Greater Boston Legal Services, The Legal Services Center of Harvard Law School, Harvard Legal Aid Bureau, and the Boston Housing Court—has been offering representation to tenants and landlords on Eviction Day, from a table outside the courtrooms, helping more than 18,000 tenants and landlords over the past 20 years, with a high percentage of cases settling on the spot. 

Such assistance (shameless plug: volunteers needed!) can be critical, considering the speed with which evictions can proceed: Tenants may have as few as seven days to file an answer, including counter-claims, discovery motions, etc., and trials are often scheduled for only a few days after that deadline.  When you consider how a tenant—typically unsophisticated in housing law and court rules (see the Adjartey discussion above!) and with limited free time during business hours, often facing language and/or educational barriers—is supposed to find and hire counsel, schedule a meeting, and draft and submit a filing in such limited time, it’s no surprise that so many simply show up for trial without having done any of that.

These programs are important in addressing the pro-se crisis in Housing Court, but they cover only a fraction of the need. Most tenants facing eviction cannot afford a private lawyer, and even among those seeking help from legal aid in housing matters, most must be turned away due to under-funding.

Only a true right to counsel in evictions—as endorsed by the BBA more than a decade ago—can resolve the problem, save the state money, and build housing stability.  That’s why we’ll keep advocating for enactment of the Coalition’s legislation.  And watch for news, in the coming days, about our new report on cost savings associated with it…

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Public Charge, the Travel Ban, “Birth Tourism”, and More

Public Charge Update

The BBA has been closely following the developments of the Department of Homeland Security (DHS) public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join.

In August 2019, the Trump administration proposed a change to the regulation known as the “public charge” rule. This regulation would deny green cards to immigrants deemed likely to become reliant on various forms of social welfare. Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”, including the perceived likelihood that that person will require public benefits in the future, even if they are not currently using them. The Migration Policy Institute study that we cited in our September 2019 Immigration Update found that this regulation would disproportionately impact immigrants from Mexico, Central America, Africa, and Asia.

Throughout the past several months, the rule was challenged in several federal courts and more than a dozen state attorneys general, including Massachusetts AG Maura Healey, under the argument that it discriminates against low-income immigrants and immigrants of color. One of the major concerns was the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and thereby imposing a huge cost on local and state governments. Furthermore, this concern is heightened by the fear and misconceptions held by the affected population, which may lead people to withdraw from, or not apply to, programs and benefits that are not covered by the rule. These impacts will hit entire families, including spouses and children who may be citizens.

In November, we published an Issue Spot blog post citing the temporary injunctions that judges from New York, California, and Washington had issued to prevent the rule from taking effect on October 15, 2019, as planned. In January, Twitter, Microsoft, and other tech companies signed on to an amicus brief in support of appealing the public charge rule. 

On January 27, 2020, the Supreme Court voted 5 to 4 to set aside the preliminary injunction from New York that prevented the public charge rule from taking effect nationwide. This was the last of the three district court nationwide injunctions standing, which means that the rule can now go into effect nationwide while litigation continues[1]. This ruling was extremely disappointing for immigrant advocates and civil rights organizations who have been working diligently to litigate against it. The rule is now expected to be implemented on February 24, 2020.

There are still appeals concerning the reasoning of the injunctions that are ongoing. The appellate cases are moving on expedited schedules and could be decided within a couple of months, and positive appellate court results could expand the injunction beyond Illinois. The national Protecting Immigrant Families (PIF) campaign is bringing advocates from around the country together to fight back against the negative effects the public charge rule will have on immigrant families. On February 6, Attorney General Maura Healey joined a coalition of attorneys general in filing two amicus briefs opposing the public charge rule. The briefs “call on the Trump administration to immediately halt unprecedented new rules that direct the State Department to deny green cards and visas to immigrants who are likely to use government assistance programs in the future.” Attorney General Healey said that “we cannot allow these new rules to overturn decades of immigration policy and deprive people of a path to citizenship in our country.”

If you would like to help or to learn more about the potential effects of this regulation, the BBA is hosting a training on March 10. You can also access the following resources:

Iranian Students Turned Away at Boston Logan

Over the past several months and amid the escalation of tension in U.S. foreign policy with Iran, reports indicate that Iranians have been increasingly denied entry at the U.S. border despite having valid visas.

On Monday, January 20, an Iranian student, Shahab Dehghani, was turned away from Logan Airport despite having a valid visa to study at Northeastern University. When he landed in Boston, he was abruptly taken aside by CBP and told that his visa had been revoked without an explanation or the chance to contact an attorney. He was held at the airport overnight for questioning. In the meantime, his lawyers obtained a court order directing the immigration authorities to allow him to remain in the country for 48 hours while his case was reviewed. But Mr. Dehghani had already been put on a plane back to France, just minutes after the court order was issued.

Although officials claimed that there was evidence that Mr. Dehghani could pose a potential security threat, his lawyers questioned the truth of the allegations, given that such a threat would have certainly been uncovered during the months of extensive vetting that he endured before being granted a visa to enter the United States.

Mr. Dehghani is one of at least 13 Iranian students who have been turned away since August at airports across the country despite having valid visas. This raises significant concerns that Iranian immigrants are being treated differently because of their heritage. In interviews with 10 of the Iranian students who have been removed since August, many said that their visas had taken months to be processed, and that they had spent their entire savings, or taken out loans, to pay for plane tickets, entrance exams and university applications. Even those who were not denied entry were extensively questioned for no apparent reason.

Higher education is important to this region and the actions of the Logan Airport immigration authorities have the potential to have a chilling impact on applications to Boston universities. These ramifications may extend beyond colleges and universities to the business sector as a whole. We stand firmly against the policy of denying students access because of their heritage and hope that Boston continues to be a safe and welcoming city for immigrants.

“Birth Tourism” Policy

On January 23, 2020, the Department of State posted a final rule amending its current regulation concerning the issuance of B nonimmigrant visas for individuals on a visit for “pleasure”. The rule amends the Department of State’s regulations on B nonimmigrant visas to clarify that traveling to the United States in order to obtain citizenship for a child by giving birth in the United States, or “birth tourism,” is not a permissible activity for a temporary visitor visa.

The rule outlines that, “under this amended regulation, U.S. consular officers overseas will deny any B visa application from an applicant whom the consular officer has reason to believe is traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child”.

The Trump administration’s attack on “birth tourism” aligns with his ongoing battle against “birthright citizenship”, the granting of citizenship, under the Constitution, to anyone born in the United States regardless of the parents’ nationality or immigration status. The new rule gives consular officers the authority to reject women they merely believe are pregnant or “likely to give birth” from entering the United States. The rule raises the burden of proof for pregnant women by outlining in writing that giving birth in the country “is an impermissible basis” for visiting the United States. Even if a woman says she is entering the country for medical treatment — a legitimate factor for visa eligibility — she will need to satisfy visa officers that she has enough money to pay for such treatments. She will also need to prove that the medical care she is seeking was not available in her home country.

The State Department has failed to provide an example of how “birth tourism” presented a national security risk, as they argued, and the rule has been criticized by immigrant rights advocates for “turning embassy employees into reproductive policemen”.  

Trump Administration Expands the Travel Ban

In 2017, the Trump administration proposed a travel ban that imposed restrictions on citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Although there was large public outcry against the ban, the Supreme Court allowed the third version of the ban (which spared Sudan and Iraq) to go into effect while legal challenges against it continued. We spoke out against the ban in 2017 and mentioned it explicitly in our 2018 Immigration Working Group Principles, citing its disregard for due process and equal protection rights for immigrants:

“The BBA has long supported measures to uphold due process and equal protections rights and access to counsel for immigrants, and in recent months has spoken out against the “travel ban” that would limit immigration from several Muslim countries; condemned the practice of separation of immigrant families at the border; and opposed proposed changes to “public charge” regulations that would make it more difficult for immigrants to access essential benefits and services.”

BBA Immigration Working Group Principles, 2018.

On January 31, the Trump administration announced that it will extend the travel ban to impose restrictions on six additional countries: Nigeria, Myanmar, Eritrea, Kyrgyzstan, Sudan, and Tanzania. The new order, which will go into effect on February 22, will affect nearly 350 million people, including a quarter of Africa’s population. Unlike the original travel ban, which prohibited citizens of the countries mentioned above from entering the United States, this ban will restrict citizens of Nigeria, Myanmar, Eritrea, and Kyrgyzstan from obtaining immigrant visas and will prevent citizens of Sudan and Tanzania from moving to the U.S. through the diversity visa lottery.

Immigrant advocacy groups are vehemently opposed to the expanded rule. “The ban should be ended, not expanded. President Trump is doubling down on his signature anti-Muslim policy — and using the ban as a way to put even more of his prejudices into practice by excluding more communities of color,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “Families, universities, and businesses in the United States are paying an ever-higher price for President Trump’s ignorance and racism.” The BBA continues to be opposed to the travel ban and the singling out of specific immigrant groups.

In the news

  • Massachusetts Sheriffs Receiving Funds from ICE for Housing Detainees

The Boston Globe recently uncovered that the Commonwealth has received more than $160 million in funding from federal immigration authorities since 2012, “mostly in exchange for keeping and transporting ICE detainees in jails run by four Massachusetts sheriff’s departments”.

The funding in question stemmed from agreements between ICE and the sheriff’s offices for Plymouth, Bristol, Franklin, and Suffolk counties. Suffolk ended its relationship with ICE this past October but the other sheriffs’ offices have defended the arrangements, claiming that their relationships with ICE have made Massachusetts safer.

  • Information Sharing Between BPS and ICE

A lawsuit brought by Lawyers for Civil Rights (LCR) and other civil rights and education advocates revealed documents that showed “extensive interactions” between Boston Public Schools (BPS) and federal immigration enforcement. A statement released by LCR outlines that since 2014, at least 135 student incident reports generated by BPS have been made accessible to ICE via the Boston Regional Intelligence Center (BRIC), an information-sharing network of local, state, and federal law enforcement agencies that is funded by the U.S. Department of Homeland Security and housed within the Boston Police Department.

The entanglement between BPS and ICE first came to light in 2017, when an East Boston High School student was the subject of a BPS incident report of a failed attempt by students to start a fight. ICE accessed the report after BPS shared it with the BRIC and the student was deported. Since then, City officials have denied the collaboration between BPS and ICE, but LCR asserts that the extent of collusion between the two is “alarming” because “BPS is creating a dangerous school-to-deportation pipeline”.

  • SJC Decision on Osman Bilal Case

In late January, the SJC came to a decision in the controversial Osman Bilal case. Bilal pleaded guilty to stealing jewelry from a Boston street vendor in 2011 and was at risk of deportation to Somalia, a country his family had fled when he was just two days old, due to this misdemeanor conviction. The judge who accepted his plea had rejected four motions for a new trial when the case was picked up by attorney Kelly Cusack in November. She worked with Donna Jalbert Patalano, general counsel for Suffolk District Attorney Rachael Rollins, to try again.

Cusack and Patalano appeared before Boston Municipal Court Judge Michael Coyne on November 15 and prosecutors dismissed the charges. But, six days later, Judge Coyne called the lawyers back to court and accused them of deception for not informing him that Bilal’s prior judge, Sally Kelly, had previously denied four motions for a new trial. Coyne vacated his order granting Bilal a new trial and reinstated his conviction.

At this point, D.A. Rollins’ office filed an emergency petition with the SJC, arguing that Coyne had no authority to reinstate the conviction. SJC Justice David Lowy vacated Bilal’s conviction, saving him from facing deportation proceedings.

D.A. Rollins has made it one of her top priorities to help defendants get convictions dismissed when it appears that they unjustly faced “harsh collateral consequences”, including deportation, under federal immigration law. “This is the unfortunate state of our federal immigration law,” Rollins said in a statement. “Mr. Bilal’s current situation is the very definition of extreme and unjust collateral consequences. We are better than this. I know it.”

[1] With the exception of Illinois, where it is still blocked by a statewide injunction.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association