A National Study of Access to Counsel in Immigration Court

A new immigration representation study by National Civil Right to Counsel (NCCRC) participant Ingrid Eagly (UCLA) was published in December, 2015 in the University of Pennsylvania Law Review. The title of the study is “A National Study of Access to Counsel in Immigration Court.”

Abstract

Although immigrants have a right to be represented by counsel in immigration court, it has long been the case that the government has no obligation to provide an attorney for those who are unable to afford one. Recently, however, a broad coalition of public figures, scholars, advocates, courts, and philanthropic foundations have begun to push for the establishment of a public defender system for poor immigrants facing deportation. Yet the national debate about appointing defense counsel for immigrants has proceeded with limited information regarding how many immigrants currently obtain attorneys and the efficacy and efficiency of such representation.

This article presents the results of the first national study of access to counsel in United States immigration courts. Drawing on data from over 1.2 million deportation cases decided between 2007 and 2012, we find that only 37% of all immigrants, and a mere 14% of detained immigrants, secured representation. Only 2% of immigrants obtained pro bono representation from nonprofit organizations, law school clinics, or large law firm volunteer programs. Barriers to representation were particularly severe in immigration courts located in rural areas and small cities, where almost one-third of detained cases were adjudicated.

Moreover, we find that immigrants with attorneys fared far better: among similarly situated removal respondents, the odds were fifteen times greater that immigrants with representation, as compared to those without, sought relief, and five-and-a-half times greater that they obtained relief from removal. In addition, we show that involvement of counsel was associated with certain gains in court efficiency: represented respondents brought fewer unmeritorious claims, were more likely to be released from custody, and, once released, were more likely to appear at their future deportation hearings. This research provides an essential data-driven understanding of immigration representation that should inform discussions of expanding access to counsel.

Download “A National Study of Access to Counsel in Immigration Court” (PDF)

 

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Board of Immigration Appeals rules in favor of Law Students

Two law schools are members of the Houston Immigration Legal Services Collaborative: University of Houston and South Texas College of Law, both of which have excellent legal clinics for students seeking to develop expertise in the areas of immigration law. These schools and their students play an important role in the capacity of immigration legal service providers in Houston. While the number of cases they can take is relatively low, these clinics are training the next generation of immigration attorneys with the experience and expertise to help immigrants with complex and urgent legal needs.

In December, 2015, a law student from Cornell Law School who was participating in an immigration law clinic under the supervision of a faculty member and licensed attorney, was attempting to represent an client before an Immigration Judge. The Judge denied the motion to permit the student’s appearance, citing the backlog of the immigration courts and the unavailability of interpreters, concluding, “[a]t this time, the Court does not believe allowing law students to appear would benefit the parties or the judicial process.”

On January 29th, the Judge’s decision was overturned by the Board of Immigration Appeals, who noted that the Judge had failed to explain how either the backlogged courts or the unavailability of interpreters related to the qualifications of a law student or whether the student should be permitted to appear on behalf of a client.

Collaborative Executive Committee member and Director of the University of Houston Law Center Immigration Clinic, Geoffrey Hoffman, recently published a response to this case. Two of his points should be highlighted here:

Quality of representation provided by law students

“It is sometimes not appreciated or perhaps under-appreciated the level of commitment [law] clinics have (and I would say, necessarily have) toward their many clients and students. In order to be a clinical educator working in this specialized field of immigration practice, you have to model professional and personal competence on a daily basis. Students will look to you as an exemplar of legal practice and procedure. Because the students are working under a faculty member who is a practicing attorney, we cannot let them fail. Over and above the fact that there is a fiduciary duty to teach and mentor students, in addition we cannot and should not let them make any mistake which would reflect on our bar card, and otherwise impact the ethical rules.  The level of attention to detail this necessitates cannot be understated and moreover should be viewed in the context of a high (almost 100%) turnover rate of students year to year or semester to semester, as new students come into the clinical program. A friend and former colleague once commented to me as a clinical professor that there is no way he could run a practice where every several months you have a new crop of new associates who have to learn the ropes again and again, without the assurances of continuity that a firm usually provides. This continuity of course we provide and comes from the rigors of our program and the values of our professors.”

Women and children lack legal representation in immigration court proceedings

“Although there is lip service paid to the ‘rights’ of immigrants in the media, the fact remains that of the women and children currently with final orders of removal who have been prioritized by the current administration, the vast majority (86%) had no legal representation whatsoever. See TRAC Report. Moreover, we know that just having an attorney representing one of these women and children (although never a guarantee to any particular outcome) means a 14-fold increase in the person’s chances….The cited reasons [for the Immigration Judge’s denial of the original request], the backlog and translators, while I am sure a source of concern and pressure for the judge did not in any way justify violating the right to counsel. I am heartened that the BIA saw through the smokescreen. These decisions by the Board can be seen as a sound rejection of the IJ’s implicit, erroneous and misguided message that instead of being part of the problem, law school clinics and law students must be viewed as part of an integrated solution as we move to address the terrible plight of women and children (and in fact of all respondents) stuck in the immigration court system today.”

Read Mr. Hoffman’s full response here.

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