By Jacob Oldaker
It was long held that the government had no obligation to bare the expenses of appointing counsel to immigrants in immigration court. Recent trends, landmark court decisions, and advocacy by bar organizations, scholars, public figures, and foundations have sparked a compelling push for the creation of a “national public defender system to appoint counsel for at least some poor immigrants facing deportation”. The systematic attention that this topic requires has found footing in both New York and New Mexico. New York was able to establish the first ever program, the New York Immigrant Family Unity Project, to provide universal court-appointed deportation defense counsel in detained cases. New Mexico saw an innovative pro bono effort that provided women and children held in remote detention facilities with volunteer representation.
The push for representation comes from the longstanding history of unrepresented litigants faring worse in court than those that are represented. A National Study of Access to Counsel in Immigration Court, 164 U.Pa.L.Rev. , monitored the first national study of access to counsel in the United States immigration courts and the data was shocking. In over 1.2 million deportation cases between 2007-2012, only 37% of all immigrants, and a mere 14% of detained immigrants secured representation. Of this representation, only around 2% was pro bono from nonprofit organizations. The immigrants that were fortunate enough to procure representation had 15 times greater chances of winning in court compared to those who were self-represented. Beyond the lack of success, is the amount of time and money that is used to hold these numerous court sessions.
After detention, lengthy judicial processes are carried out which costs the courts and detention officials money. Around 51% of court adjudicated time was incurred from immigrants requesting an attorney. Unfortunately, the majority of the detained immigrants never found counsel and were forced to proceed on their own. Those who found representation were more likely to receive a custody hearing and to be released from detention, thus cutting down detention costs of housing, food, etc.
Approving a national public defender system for immigrants will not solve the immigration problems or eliminate the incurred expenses of trial but it is a step in the right direction. Appointed counsel is associated with a range of adjudication issues including: immigration detention, immigration court locations, adjudication times, and patterns in grants of relief. Currently, attorneys are scarce but those that are involved are fighting for a winning defense and are helping the courts complete their work efficiently. Severe gaps are still present in immigration representation as the legal world works to mend the relationships between representation, deportation, and the court. These current findings have immediate implications for poor immigrants battling removal proceedings. As the United States Supreme Court approaches their docket for 2017, they need to be mindful of their decisions regarding the Trump administration travel ban. The United States was founded on immigration but lawyers, the court, and the government have a long road ahead to determine where the line is drawn for appointed representation. Does each person who sets foot in America deserve counsel? Do you have to be a citizen to receive counsel? Whose responsibility will it be to afford these appointed counsels? There are many questions to be answered and the next Supreme Court session should give a small blueprint of where we are headed under this new administration.
Ingrid V. Early & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1 (2015).