SAFE Cities webinar – Brooklyn defender services webinar: working effectively with social - PowerPoint Presentation

1. SAFE Cities webinar – Brooklyn defender services webinar: working effectively with social workers and other experts to support your clients and strengthen their casesEffective use of Experts in Immigration Court : Ellen Pachnanda, Esq., Supervising AttorneyCollaborating with Social Workers: Zoe Joly, LMSW and Meg Smithson, LMSWBrooklyn Defender ServicesJanuary 17, 2019Presented to the Vera Institute of Justice’s Center on Immigration and Justice

2. This Photo by Unknown Author is licensed under CC BYDaubert v. Merrell Dow Pharmaceuticals, Inc. – Federal Rules of Evidence may not strictly apply to Immigration proceedings; however, the spirit of Daubert does apply. See, e.g., Niam v. Ashcroft 354 F.3d 652, 660 (7th Cir. 2004)Factors determining reliability of experts: (U.S. v. Romano, 794 F.3d 317, 330 (2d Cir. 2015)):Theory’s testabilityThe extent to which it ‘has been subjected to peer review and publication”The extent to which a technique is subject to standards controlling the technique’s operationKnown or potential rate of errorDegree of acceptance within the “relevant scientific community.”Standard for Expert testimony

3. Experts in immigration courtHow to apply Daubert/Federal Rules of Evidence to get our experts qualified!A person “qualifie[s] as an expert by [having] knowledge, skill, experience, training, or education and . . .specialized knowledge that will assist the Immigration Judge to understand the evidence or to determine a fact in issue.” Baldini-Poetermin, Immigration Trial Handbook section 7:18 (2014 ed.) Non-scientist experts can testify about their opinions when their opinions are based on reliable technical or specialized knowledge. Restivo v. Hessemann, 846 F.3d 547, 575-77 (2d Cir. 2017)A judge must give considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumbo Tire Co. LTD v. Carmichael, 119 S.Ct. 1167; See also Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996)Expert opinions may be based on hearsay evidence and the expert “need not have personal knowledge of the facts underlying those opinions.” Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015)

4. Experts in immigration court (cont’d)As part of the right to present evidence a respondent may present expert testimony. Indradjaja v. Holder, 737 F.3d 212, 219-20 (2d Cir. 2013) (Relying on Federal Rules of Evidence, Rule 703, in reversing BIA based on failure to consider Expert’s affidavit)Statutory right to present expert testimony – INA § 240(b)(4)(B); See also Tadesse v. Holder, 660 F.3d 905-911 (7th Cir. 2007)Remanded where IJ has excluded expert witness testimony and/or affidavitsYang v. Gonzales, 427 F.3d 1117, 1121–22 (8th Cir.2005) (finding error and remanding where an IJ and the BIA failed to accord weight to an affidavit from a non-testifying, facially qualified country condition expert)Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056-58 (9th Cir. 2005) (violation of Due Process not to allow expert to testify)Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004) (reversing IJ where he struck expert affidavit on Bulgaria without voir dire of expert)

5. First things, first: finding an expertSTEP 1: Identify the GOAL of the use of an expert Mental Health Country ConditionsSTEP 2: FIND an expert SAFE Cities/NYIFUP TA consult ColleaguesList servCGRS – Center for Gender & Refugee Studies

6. Before you hire the expert…Reach out to the expert by phone or e-mailInitial consult – over the phone! Why? To get a sense of the ultimate opinion in the case – based on quick fact summaryQuestions for the initial consult:Testified before? Qualified by court (Immigration specifically) before? What field? Has court ever refused to qualify as expert? Why?Rates/Standard Practices –Record review/report writingSeparate rate for testimony?Pro bono considerations?

7. Retaining an expertNegotiate rates/terms – via e-mail worksPro bono ratesGet requisite approval from office Retainer agreement – signed by expert & attorneySend records to expertDetermine which records are necessaryApplication for reliefClient declarationMedical/psych recordsDHS records (??)Criminal records (??)

8. Expert prep: ReportAfter Expert completes review of records, next steps:Need to speak to necessary parties?Client or discuss why not necessaryOther experts in case/outside case?Any additional records necessary?Considered relevant articles/treatises (can these form basis of opinion?)Review with expert the opinion/basis of opinionReview draft report/edit

9. Expert prep: ConsiderationsIn-person vs. Telephonic testimonyFile motions earlyIf out of country, file motion for consular testimonyShare expert report – file with call-up (along with CV)Review Expert’s QualificationsUpdated CV – review carefully with Expert WitnessAnticipate problemsReview qualification questions/voir dire

10. Expert prep: Trial prep - Direct Review Report with Expert WitnessPractice Proffer with Expert WitnessField; Education; Current work; Professional Associations; PublicationsPractice Direct Questions with Expert WitnessPrepare Expert Witness for Immigration Judge (“IJ”) Questions

11. Expert prep: voir dire?Voir Dire of your Expert- (See Niam v. Ashcroft, supra, for support)Purpose: To qualify your witness as an expert witness in Immigration CourtHow to Voir Dire:Background questions – as noted above (Field, Education, Publications, etc.)Keep it shortEnd: “At this time, I ask the Court to deem [Expert] an expert in the field of X”DHS will object Response: Daubert, FRE, caselaw IJ refuses to qualify as expert – record made of extensive qualificationStipulations??

12. Expert prep: Cross-examinationPrepare for DHS objections to report/testimonyAreas to consider:CompensationPrior testimonyNumerous?Review weaknesses in facts, knowledge, what they did not do Anything in expert’s prior writings, including published writings – as well as written reports – that might be seen as contradicting current testimony?

13. Expert: help to develop caseDirect/Cross prep – let them guide you in the questionsWeaknesses in your case – let expert assist in identifyingAdditional evidence, reports – ask for recommendations

14. Thank you! Reminders: Get a consult if you have any questions! Safecitiesconsult@bds.orgKeep & update lists of expertsCoordinate/network with local orgs, universities, communities

15. Brooklyn Defender Services:Working Effectively with Social Workers and Other Experts to Support Your Clients and Strengthen Your CasesZoe Joly, LMSW and Meg Smithson, LMSWPresented to the Vera Institute of Justice’s Center on Immigration and JusticeJanuary 17, 2019

16. BROOKLYN DEFENDER SERVICESBDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and tools for self-advocacy for around 35,000 clients in Brooklyn every year.Our 300 employees include attorneys, social workers, investigators, paralegals, policy advocates and administrative staff.In addition to our immigration practice, we represent 40% of people arrested in Brooklyn every year and 3,000 families facing abuse and neglect charges in Family Court.85% of our clients are arrested for misdemeanor or non-criminal violations.

17. NYIFUP is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. Brooklyn Defender Services is proud to be a NYIFUP provider, in NYC along with The Bronx Defenders and The Legal Aid Society, two other NYC public defense offices.The New York Immigrant Family Unity Project (NYIFUP)Since the project’s inception four years ago, BDS NYIFUP attorneys have defended more than 1,000 people in deportation proceedings. Jointly the NYC NYIFUP providers have won release from ICE custody for over 900 clients and won the cases of over 500 clients, with hundreds of cases still pending. The Vera Institute of Justice’s comprehensive November 2017 study found that 48% of NYIFUP cases end successfully – a 1,100% increase from the rate for unrepresented cases before NYIFUP.

18. Summary of PresentationThe evolution of NYIFUP Social Work since the pilot project phaseThe referral processDeveloping an interdisciplinary practiceExamples of direct client workReflections on interdisciplinary collaboration

19. NYIFUP Social WorkThe NYIFUP social work practice builds on BDS’s criminal defense and family defense SW practices and collaborations with Padilla attorneysMitigation style reports Oral and written advocacyExtensive field work: meeting with clients in detention, in court, and in the community Our growing immigration SW practice: 2014: One NYIFUP social worker 2018: Two full-time NYIFUP social workers, a social work intern 2019: established a formalized immigration social work team and ongoing collaboration with social workers at NYC-based NYIFUP providers and with social workers in Vera’s SAFE Network

20. NYIFUP Social WorkThe NYIFUP program prioritizes an interdisciplinary defense model that is sensitive to the unique biopsychosocial needs of immigrants in detention and provides extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way.At the heart of our work is a trauma-informed approach that recognizes the structural violence inherent to the United States mass detention system

21. What if My Office Doesn’t Have Social Workers? Immigration Attorneys gather detailed biopsychosocial information through the process of assessing relief options: this can enhance your relationship with your clientAttorneys can embrace a person-in-environment perspective that is cognizant of how individual behavior is impacted by environmental context Explore creative ways of supporting clients outside of the legal case: Build relationships with community partners who can offer support to clients in detention and upon releaseAttend to the biopsychosocial needs of the client outside of the legal case

22. NYIFUP Social Work Referrals NYIFUP Attorneys refer clients with histories of mental illness, substance abuse, trauma, a severe medical issue, and/or who have experienced social exclusion to our social work team for support, assessment, and interventionsNYIFUP Attorneys also make referrals for discreet case management tasks

23. The Referral ProcessAttorney identifies a client issue that they feel needs social worker attentionAttorney completes a request for social work servicesClient is assigned a social worker who then conferences with the referring attorneySocial worker conducts initial assessment with client in detention or arranges for a timely visit with the client in the community or at the BDS office

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25. NYIFUP Social Work InterventionsOur work encourages a relationship-based practice that privileges each client’s unique experience and perspective.Social work interventions include:Supportive counseling throughout detentionAffidavits to the court detailing the abuse and neglect clients experienced while in immigration custodyMitigation reports that document clients’ equities and treatment plans that address past histories of substance use, mental health diagnoses, and concerns about dangerousness and flight risk Written testimony that explores clients’ biopsychosocial historiesReferrals to community partners

26. Written WorkLetters for bond: TimingScope of discussionAverage number of client meetingsLetters for individual hearings: TimingScope of discussionAverage number of client meetings

27. Social Worker TestimonyWhen should you include the assigned social worker on the witness list?Limiting the scope of testimonyAddressing concerns about dangerousness and flight riskProviding collateral information about client equities and identity

28. Relationship-Building Central to our social work approach is the understanding that immigration detention is re-traumatizing We understand that clients may struggle to trust their legal team and will be reluctant to disclose information that is critical to their caseSocial workers help to foster trust between clients and their legal team through purposeful relationship building and fostering connections with community-based organizations

29. Detention-Based Client WorkInformation gathering for a treatment plan and/or mitigation reportExploring sensitive issues relevant to relief or as related to safety and stability while detainedAdvocating for client access to appropriate servicesSupportive counseling for clients in crisis

30. Case Example: “Daniel”Original referral: Attorney asked social worker to help 32 year old client, diagnosed with Schizoaffective Disorder and seizure disorder, and survivor of traumatic brain injury, access appropriate mental health services, including medication, while in detentionIssues: History of substance use mental health diagnoses, complicated medical presentation, cognitive delays, limited network of social supportInterventions: Weekly visits while client was detainedExtensive advocacy with jail-based mental health servicesSupport with re-entry: shelter, connection to benefits and services, psychiatric evaluation

31. Community-Based Client WorkConnecting clients to supportive services and resources Health insurance and other means-tested benefitsSubstance treatmentMental health servicesShelterMedical treatment Ongoing documentation of clients’ community involvement for future written advocacy

32. Case Example: “Edwin”Original referral: Attorney asked social worker to help 19 year old client recently released on bond, to enroll in high school Issues: unstable housing, emergent mental health and substance use issues, inconsistent work scheduleInterventions: Weekly meetings at the BDS office and in the communityHealth insuranceReferrals to alternative education and mental health programsConnected to faith-based support and housing

33. Systemic Barriers to Attorney/Social Worker CollaborationIssues with gaining access to clients in detentionLack of understanding of social worker role and purpose (“qualifications”) and the scope of our practice as licensed professionals by ICE, the government, and corrections personnel

34. Keys to Successful Social Worker/Attorney Collaboration Managing attorney expectations about purview of social work servicesSetting realistic deadlines for written workAcknowledging the potential conflict between case strategy and client self-determinationEstablishing boundaries with clients and attorneys

35. SummarySocial workers use clinical skills and assessment tools to understand clients’ exposure trauma and life experiences to help clients establish a sense of safety Social workers can help enhance the relationship between the client and the attorney by allocating additional time to addressing client concerns and fears, and helping to ensure that the attorney is kept informed about clients’ wellbeing Social workers help clients cope with the detained environment and the ongoing stresses associated with removal proceedingsSocial workers provide a vital link between detained clients and community-based resourcesSocial workers provide a unique biopsychosocial perspective on clients’ experiences and functioning while in immigration detentionSocial workers assist NYIFUP attorneys with eliciting information that is critical to clients’ defenseSocial workers are integral to an assigned counsel program

36. 177 Livingston St. Brooklyn, NY 11201 Tel. 1-718-254-0700 www.bds.org @BklynDefenderThank You!