Migrant Influx Fuels Push For Right To Immigration Counsel

By Marco Poggio | May 31, 2024, 7:02 PM EDT ·

A security officer directs people in an immigration court

A security officer directs people to a courtroom in an immigration court in Miami in January. Miami's immigration court had the highest number of pending cases this year — over 300,000 as of April — followed by New York, Chicago and Orlando, Florida. (AP Photo/Wilfredo Lee, file)

What Judge Dana Leigh Marks saw countless times from her bench on the San Francisco Immigration Court were David-and-Goliath-type fights.

Noncitizens, many of them having fled poverty in their home countries and having only modest educations, compete against U.S. government lawyers seeking to have them deported.

"Most people are very nervous, if not terrified," she said. "They're dealing with a foreign culture, a foreign language, a system that they have likely no way to be familiar with."

And the vast majority of them, said Judge Marks, who retired in 2021, did not have a lawyer on their side to help them.

Over 65% of the nearly 4 million people in immigration court facing deportation last year did not have an attorney. The percentage of unrepresented people reached 74% among people — about 250,000 — who were ordered deported, according to data collected by the Executive Office for Immigration Review.

In the face of these numbers, a movement to guarantee government-funded legal representation to noncitizens in deportation proceedings has been gaining ground, particularly in New York and California, where elected officials have already introduced bills that would codify the expansion into law.

And a federal bill dubbed the Fairness to Freedom Act and introduced by Sen. Kirsten Gillibrand of New York and Rep. Norma Torres of California, both Democrats, would essentially create a right to representation in immigration court similar to the one that exists in criminal cases. The bill currently has more than 40 co-sponsors — 39 Democrats and one independent, Vermont Sen. Bernie Sanders, but no Republicans — and is currently being reviewed by judiciary committees in both the Senate and the House of Representatives.

The push to provide much-needed attorneys to immigrants facing expulsion from the country comes amid a record influx of people crossing illegally into the U.S. at the Mexican border.

Shayna Kessler, an associate director at Vera Institute of Justice, a national organization that is leading the push to extend the right to counsel to noncitizens, said the problem of legal representation for immigrants is "growing and really significant."

"It really just represents an enormous amount of unfairness in our immigration system," she said. "One of the solutions is universal representation: ensuring that no one is subjected to this incredibly complex and daunting system, where the stakes can literally be life and death, without having access to counsel."

On April 22, a broad coalition of legal aid providers, immigrant rights advocates, public defenders and elected officials from seven U.S. cities called on Congress to allocate $400 million in the next fiscal year's budget to fund legal representation for people in removal proceedings.

"This allocation is a necessary step in building a strong foundation to ensure that all people facing deportation and its devastating consequences have access to legal representation and a fighting chance to stay rooted in their jobs, families, and communities," said the letter, sent to the leaders of the appropriations committee in both the House and Senate.

Studies, including one published in the University of Pennsylvania Law Review and cited by the coalition's letter, have shown that immigrants represented by attorneys in court proceedings are five times more likely to be granted relief, and people who are detained are up to 10.5 times more likely to achieve a favorable outcome when represented.

In 2013, New York City became the first jurisdiction to adopt a system of representation for people in deportation proceedings who are being held in custody by immigration authorities. Over 55 local jurisdictions across 21 states have since followed suit.

Now, immigrant rights advocates and attorneys say that, in order to confront the ever-increasing number of people embroiled in the immigration system, which lawyers and politicians across the political spectrum acknowledge is broken, it is necessary to equip them with a lawyer.

The National Association of Immigration Judges, or NAIJ, the union representing the nation's more than 500 immigration judges, supports giving a government-paid lawyer to members of vulnerable populations, such as minors and people with mental health and mental capacity issues.

"We think that that is an essential step that should take place immediately, if not sooner," said Judge Marks, who is a former president of the union who is authorized to speak on its behalf.

In New York, the proposed Access to Representation Act would require the state to appoint an attorney for every person who has a case before an immigration judge, regardless of whether they are being held in custody.

Meanwhile, a legislative proposal in California, the REP for All Immigrants Act, would eliminate a carveout in publicly funded immigration-related legal services that excludes people convicted of certain crimes.

What Lawyers Can Do

In deportation proceedings, the U.S. government's burden of proof is to show that a person is not a U.S. citizen and has been in the country without authorization. From there, the burden shifts to the immigrant to prove that he or she deserves some form of relief.

According to nationwide data collected by immigration authorities, only about 14% of asylum cases were granted in fiscal year 2023. That percentage touched 18% for people who were represented by counsel.

Lenni B. Benson, a professor of immigration law at New York Law School who runs a nonprofit legal services organization that provides free lawyers to refugee and immigrant children in the New York City-area who face deportation, said that proving an asylum case is a difficult process that requires special expertise.

She recalled a client at her clinic, an agricultural worker from Peru who, when asked why he had to come to the United States, said only that he needed to change life because he felt in danger while working in the fields. That was going to be a weak asylum claim, Benson said, until she discovered through additional questioning that the man was part of a political group that had become the target of a violent opposition faction. The new facts strengthened the man's case significantly, she said.

"What lawyers can do is help people show the judge why their claim is real and contextualize it with supporting evidence," she said.

Often, asylum-seekers experience post-traumatic stress disorder that can affect their ability to recount events or gather evidence needed for their cases. And more often than not, asylum cases involve claims for which there is sometimes little corroborating evidence, such as alleged persecution at the hands of foreign government authorities or gang violence. For that reason, Judge Marks said that the kind of research attorneys put together on an asylum claimant's background can be vital to their success.

From a cost-benefit perspective, Judge Marks said that expanding the right to counsel to noncitizens would benefit judges and the immigration court system as a whole, because the process would run more smoothly with the involvement of attorneys to prepare requests for relief and gather necessary documents and supporting evidence.

When noncitizen respondents appear in court unrepresented, meanwhile, judges have to do the equivalent of intake interviews to identify possible avenues for relief the immigrants may be entitled to pursue. Proceedings can drag on for longer in those situations, and cases easily pile up.

"Somebody testifying on their own is going to give you a whole wide universe of what their life is like when maybe only certain aspects of it are what the judge needs to hear," Judge Marks said. "It would benefit the system to have attorneys representing individuals, because they know how to cut to the chase."

In addition to strengthening a noncitizen's arguments in court, the presence of an attorney might also reduce the numbers of appeals filed in cases where judges deem a person ineligible for relief. That benefits the immigration court system as a whole in terms of reducing caseload numbers, Judge Marks said.

"An attorney will realistically tell someone whether they have a strong case or not," Judge Marks said. "And I think most people find that easier to accept from somebody who they feel is on their side."

a line of people waiting to enter building

In this June 2019 photo, a U.S. Immigration and Customs Enforcement official assists people waiting to enter the building that houses Atlanta's immigration court. As of April, Atlanta had nearly 140,000 pending immigration cases, up from just over 100,000 in fiscal year 2023. (AP Photo/Andrea Smith)

While immigration judges are currently under a gag order imposed by the Executive Office for Immigration Review that prevents them from speaking to the news media or to Congress, in the past, during hearings on Capitol Hill and through interviews, they have described themselves as busy problem-solvers managing huge, ever-increasing caseloads while contending with lack of resources.

According to Transactional Records Access Clearinghouse, a research institution based at Syracuse University, there were more than 3.5 million cases pending in immigration courts nationwide at the end of March. The backlog has grown exponentially over the past decade: it was 325,000 cases in fiscal year 2012 and has grown steadily ever since.

Miami has been the immigration court with the highest number of pending cases this year — over 300,000, as of April — followed by New York, Chicago and Orlando, Florida.

"Part of the Monster"

Lindsay M. Harris, a professor at University of San Francisco School of Law who in the past directed an immigration clinic at University of the District of Columbia's David A. Clarke School of Law, said that expanding the right to counsel in the immigration context is "long overdue."

"The stakes for immigration cases are so high and the due process challenges innumerable. Legal representation makes an incredible difference for all immigrants and certainly those seeking protection," Harris told Law360. "I am in favor of universal representation for immigrants and definitely representation for children."

But Harris said she also agreed with some legal scholars who think universal representation is not the answer and that more systemic changes are needed to ensure that immigrants receive due process.

In a New York University Law Review article published in May 2023, Angelica Chazaro, an assistant professor at University of Washington School of Law, argued that federally funded counsel is the "wrong goal" and a "false promise," because it leaves the immigration system in place as it currently is.

"Expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction," Chazaro wrote. "In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to challenge the growth of the mass deportation regime effectively."

Chazaro said advocates should instead devote their efforts to "dismantling immigration enforcement" by, for instance, focusing on closing immigration detention centers, slashing the budgets of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, and ending the surveillance and arrest of immigrant communities.

"This means putting aside battles that seek to add lawyers as one more mandated player in immigration court," she wrote.

The American Immigration Lawyers Association and civil rights organizations such as the American Civil Liberties Union support a path to citizenship for people who are unauthorized or whose legal status is temporary. The American Dream and Promise Act, a proposed bill that would provide undocumented noncitizens a path to permanent legal residency that has 188 co-sponsors, including four Republicans, is being looked at by the House Judiciary Committee.

Benson, of New York Law School, pointed out that Vera Institute, the driving force behind the universal representation campaign, has received millions of dollars in federal grants to run its free legal assistance programs for immigrants. However, she also referred to Vera Institute's early literature on criminal justice issues, which the organization focused on when it was founded in the 1960s, that argued that guaranteeing a right to counsel, while worth striving for, can also end up tacitly legitimizing problems that are baked into the system as a whole.

"Then it becomes quasi-effective. It becomes part of the monster," Benson said, adding that there is merit in the ideas floated by Chazaro.

"Why should it be that every person apprehended at the border is put into removal? Why do we have an assembly line justice system?" Benson said.

Stephen W. Yale-Loehr, an immigration law scholar at Cornell University Law School, said that reforming the immigration system and expanding access to counsel should both happen simultaneously.

"We need to do both," he said. "We have a broken immigration system, and we do need to overhaul it. But whether we overhaul it or are stuck with the existing system a while longer, we need more immigration lawyers and other navigators to assist immigrants in immigration proceedings."

Kessler of the Vera Institute conceded that universal representation alone will not fix all problems plaguing the immigration system. For instance, creating new pathways to citizenship would cause fewer people to face immigration proceedings in the first place. But getting lawyers to those who are already embroiled in the system is a critical step, she said.

"Providing access to counsel is one solution that will make sure that more people can understand their rights, can defend their rights, and can navigate the system while having a fighting chance," she said.

--Additional reporting by Courtney Bublé. Editing by Nicole Bleier.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!