The Proskauer corporate social responsibility and pro bono blog

Ten Years for a Second Chance? New York’s Sealing Statute Lags Behind Other States

In 2018, Proskauer highlighted the importance of a New York law that gives those with criminal convictions an opportunity to build a better life. New York Crim. Proc. Law § 160.59 (“CPL 160.59”) allows persons convicted of certain crimes to apply for their criminal record to be sealed upon meeting two requirements: (1) at least ten years have passed since their release from prison; and (2) a record of two or fewer criminal convictions only one of which can be a felony.  Once sealed, these records are inaccessible to the public and through routine background checks, such as those used by landlords and employers. Though CPL 160.59 has provided some with a needed second chance, it has excluded far too many people.

Many other states have implemented their own laws permitting criminal records to be sealed — in 2019 alone, 31 states and D.C. enacted bills creating, expanding, or streamlining conviction record sealing, set-asides, or expungement. New York was one of those states, reforming the system by automatically sealing drug convictions for now decriminalized offenses, as well as sealing certain pending matters where there has been no activity in the past five years.  Nevertheless, New York did not take the opportunity to expand the scope of CPL 160.59 and thus it remains severely underused compared to original estimates. Continue Reading

Proskauer Represents Forensic Scholars in Successful Amicus Brief Overturning Wrongful Conviction After 40 Years

On August 24, 2020, the United States Court of Appeals for the Fourth Circuit, sitting en banc, reinstated defendant Ronnie Long’s petition for a writ of habeas corpus, challenging his rape conviction more than four decades earlier.  Proskauer filed an amicus curiae brief in support of Mr. Long on behalf of some forty leading scholars who specialize in forensic science, emphasizing the grave impact of the prosecution’s repeated failures to disclose all the forensic evidence in the case.  The Fourth Circuit agreed, and now Mr. Long is expected to be released imminently.

Over forty years ago, Mr. Long was accused of committing a rape and burglary that he has consistently maintained he did not commit.  Relying heavily on the victim’s identification testimony, and the asserted “honesty” of law enforcement who investigated the crime, a jury found Mr. Long guilty of first-degree rape and first-degree burglary.  He was sentenced to life in prison, and his conviction was upheld on appeal.  As the result of continued litigation over the span of many decades, however, a steady stream of suppressed evidence concerning the crime, neither disclosed to the defense nor presented to the jury, came to light. It included lab-test results demonstrating that Mr. Long was not linked to the crime scene; medical evidence taken from the victim that unaccountably went missing; and, most recently, 43 latent fingerprints lifted from the scene, none of which matched Mr. Long.  It also became plain that the detectives who investigated the crime lied at trial about the evidence suppression. Continue Reading

Another Public Health Crisis: The Intersection of Gun Violence & COVID-19

As COVID-19 ravages communities across the United States, another serious public health crisis is also escalating: gun violence. Everytown for Gun Safety, a nonprofit organization and longtime Proskauer partner dedicated to ending gun violence, has been examining the impact of COVID-19 on the gun violence epidemic, as well as making important recommendations.

In a recent report, Everytown found that there was a major spike in gun sales between March and May of 2020 in comparison to previous years, as well as a corresponding rise in gun deaths. As a result of these sales, there has been a corresponding sharp increase in requests for background checks, which puts immense stress on the National Instant Criminal Background Check System (NICS). Everytown notes that the primary and most dangerous consequence of this strain on resources is the so-called “Charleston loophole.” While federal law mandates that licensed gun dealers run a background check on any prospective gun buyer, this loophole allows any purchaser, even one with an incomplete background check, to proceed by default with their gun purchase if three business days have elapsed since the background check request was submitted – the technicality through which Dylann Roof was able to secure a firearm to kill nine Black churchgoers in South Carolina. As a result, a significant number of gun sales (potentially over 90,000) have been processed during the course of the COVID-19 pandemic thus far without complete background checks. Continue Reading

Know Your Rights: Proskauer Partners with The Legal Aid Society to Provide Information and Resources to Immigrants

Many immigrant families in the U.S. live with the fear that their loved ones will be detained on very short notice during Immigration and Custom Enforcement (ICE) raids. Just this week, a Proskauer pro bono volunteer answered a call to the Immigration Helpline from a woman seeking help after her undocumented husband was arrested and detained by officials she feared were immigration officers. She did not know why he was taken, where she could go to see him, and whether he was going to be incarcerated or deported.

Unfortunately, this caller’s experience is commonplace under U.S. immigration policy. In July 2019, the federal government announced nationwide ICE raids targeting immigrant families in major U.S. cities. At the time, the President characterized the coordinated raids as a “major operation,” threatening to send undocumented and other removable immigrants into detention and out of the country. Shortly after the President’s announcement, Proskauer pro bono attorneys and staff sprung to action, working through the weekend, to answer calls from immigrants fearing these raids. Continue Reading

Collaborating with Community Organizers for Social Justice: An Interview with Michael Stanley and Ray Lopez

This week we had the privilege of speaking with Michael Stanley, a professional community organizer with Manhattan Together and South Bronx Churches Sponsoring Committee (SBC), and Ray Lopez, the Director of Environmental Health Services of the Little Sisters of the Assumption Family Health Service (LSA), on the topic of pro bono lawyering for social justice in collaboration with community organizers.  Manhattan Together, SBC, and LSA are nonprofit organizations and members of Metro IAF, a network of multi-faith organizations that draw on the power of person-to-person organizing to transform communities and build the local power necessary to create change on local and national levels. Continue Reading

DHS Rules Effective August 2020 Will Push Asylum Seekers Further into Poverty and Marginalization

In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications.  By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.

The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application.  This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays.  The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.”  But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs. Continue Reading

Demanding Withdrawal of Proposed DHS Rule Harmful to LGBTQ and HIV-Affected Asylum Seekers

Pervasive anti-LGBTQ violence around the world causes many individuals to flee their countries of origin in search of safety. The past few years have been tremendously difficult for immigrants of all walks of life, but especially so for LGBTQ and HIV-affected asylum applicants who have fled to the United States to seek refuge from persecution and torture.

Following a steady stream of new policies, executive orders, and regulations that roll back protections for immigrant victims of violence, on June 15, 2020, the Department of Justice and the Department of Homeland Security released a Proposed Rule on Procedures for Asylum that would eliminate asylum as a viable form of relief for nearly all applicants.

The Proposed Rule upends decades of well-settled case law, unlawfully attempts to re-write sections of the Immigration and Nationality Act, and creates evidentiary hurdles so high that the vast majority of asylum applications will be denied if the Proposed Rule is adopted.

While all asylum seekers will be harmed under this Proposed Rule, the effects will be particularly devastating for those who have suffered violence due to their sexual orientation, gender identity, or HIV status.

With a timeline of less than 30 days to respond to the Proposed Rule, Proskauer Pro Bono Counsel Erin Meyer led a team in partnership with the New York City Gay and Lesbian Anti-Violence Project to research, draft, and submit a public comment letter demanding the withdrawal of the Proposed Rule in its entirety.

The Anti-Violence Project is a nonprofit organization that provides free legal services and counseling to LGBTQ and HIV-affected survivors of all forms of violence. Drawing upon our collective expertise and experiences with asylum law as it pertains to these vulnerable communities, the letter focuses on the specific aspects of the Proposed Rule that threaten to jeopardize the safety, wellbeing, and due process rights of LGBTQ and HIV-affected asylum seekers.

  • According to the U.S. Department of State Country Reports on Human Rights Practices and the Human Dignity Trust, more than 70 countries around the world criminalize LGBTQ identity with penalties ranging from imprisonment to death sentences.
  • Laws criminalizing LGBTQ identity not only expose LGBTQ people to the threat of arrest, imprisonment, and death, but also increase their risk of facing other forms of abuse at the hands of both state actors and civilians.
  • In many countries, LGBTQ people suffer a pattern of physical, verbal, and sexual abuse, as well as severe economic deprivation resulting from discrimination in employment, housing, health care, and education.

A grant of asylum can be life-saving and liberating for LGBTQ individuals who cannot freely and safely be themselves in their home countries.

The Proposed Rule threatens to force LGBTQ and HIV-affected immigrants to return to these dangerous conditions in their home countries by, among other things:

  • drastically narrowing the definitions of “persecution” and “political opinion,”
  • imposing a list of 12 so-called “discretionary” factors that would mandate denial of asylum claims, and
  • removing a number of critical due process protections.

Of particular relevance to LGBTQ asylum seekers, the Proposed Rule refuses to recognize that laws criminalizing LGBTQ identity are inherently persecutory, even though the U.S. Supreme Court struck down as unconstitutional such laws when they existed in the U.S. prior to 2003 on the basis that laws criminalizing same-sex relationships violate human rights and personal liberties.

Laws criminalizing LGBTQ identity are persecutory, even in the absence of prosecution, because these laws 1) forcibly closet LGBTQ individuals – which is itself a form of persecution, 2) enable government actors and civilians to harm LGBTQ people with impunity, and 3) prevent LGBTQ people from seeking protection from harm, particularly where the harm is on account of their LGBTQ identity.

The Proposed Rule would require LGBTQ asylum seekers to prove that persecutory laws have been or would be applied to them personally, a requirement that unreasonably expects that LGBTQ immigrants should expose themselves to the risk of arrest and prosecution before they can obtain asylum.

The Proposed Rule is by no means the first immigration law in the U.S. to target LGBTQ immigrants for exclusion. Laws dating back to 1917 denied LGBTQ immigrants admission to the U.S. on the basis that “homosexuals” were “persons of constitutional psychopathic inferiority.”  This bar against LGBTQ immigrants was not lifted until 1990.

Similarly, HIV-affected immigrants were banned from entering the U.S. from 1993 until as recently as 2010. In closing the door once again on many LGBTQ and HIV-affected immigrants, the Proposed Rule threatens a return to this shameful time in U.S. history.

Supported with legal precedent, social science literature, and the lived experiences of past clients, the public comment letter filed on July 14, 2020 makes a clear case for rescinding the Proposed Rule in its entirety.

To access the public comment letter in full, click here.

Our pro bono team included Pro Bono Counsel Erin Meyer, Litigation Associate Bryant Wright, Pro Bono Paralegal Alex Volpicello, Litigation Project Assistant Tori Klevan, and Pro Bono Intern Jennifer Qu, in collaboration with Lauren DesRosiers, an Equal Justice Fellow co-sponsored by Proskauer, at the Anti-Violence Project.

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