ACCREDITED REPRESENTATIVES AND THE NON-CITIZEN ACCESS TO JUSTICE CRISIS: Informational Interviews with Californian Recognized Organizations to Better Understand the Work and Role of Non-Lawyer Accredited Representatives.

AuthorBenjamin, Brittany

INTRODUCTION 264 I. INTRODUCTION TO THE ACCREDITED REPRESENTATION SYSTEM 271 II. OPINIONS REGARDING NON-LAWYER REPRESENTATION OF IMMIGRANTS, AND THE NEEDS OF NON-CITIZENS 274 A. Early Responses to Recognized Organizations and Representation of Immigrants by Non-Lawyers 275 B. Recent Change in Tide Regarding the Use of Non-Lawyers to Address the Access to Justice Gap, Generally and Within Immigration 280 III. INTERVIEWS WITH ACCREDITED REPRESENTATIVES AT CALIFORNIA-BASED RECOGNIZED ORGANIZATIONS 283 A. Introduction to the Organizations, Hiring and Staffing Mix 284 B. Services Offered and Division of Labor 287 C. Collaboration with Lawyers 289 D. Accredited Representative Training 290 E. Ensuring Effective, Quality Representation 293 F. Mission, Community, Outreach, and Reputation 295 G. Fees, Funding, and Salaries 298 H. 2017 Federal Reforms 299 IV. DISCUSSION AND ANALYSIS OF ACCREDITED ORGANIZATION INTERVIEWS 301 CONCLUSION 306 INTRODUCTION

Each year, hundreds of thousands of non-citizens face the might of the United States Department of Homeland Security and the "harsh consequences" of deportation, and they do it alone--without legal assistance. (1) In 2016, the Department of Homeland Security initiated immigration enforcement actions against 805,071 alleged inadmissible or deportable non-citizens. (2) While the majority of enforcement actions occurred at the U.S. Border, this total still included 114,434 Immigration and Customs Enforcement (ICE) administrative arrests, which occur within the interior of the county--once individuals have already arrived in the United States. (3) In total, ICE and Customs and Border Patrol (CBP) removed or returned 450,954 individuals from the United States to their home countries in 2016. (4)

President Donald Trump has made immigration enforcement a priority for his administration, and he has expanded immigration enforcement priorities. (5) Accordingly, since Trump took office, ICE's arrests have included more individuals without criminal backgrounds, and ICE has arrested more individuals already living within the interior of the country. (6) This marked a striking contrast to the policies of past administrations, which had mostly focused immigration enforcement on non-citizens with criminal records. (7)

Once arrested by ICE or CBP, immigration proceedings can take multiple years, and by statute, ICE can place certain administratively arrested individuals in civil detention. (8) Indeed, in 2016, ICE placed over 350,000 non-citizens in civil detention facilities. (9) Circumstances of civil detentions are often akin to prison, (10) and non-citizens have no statutory right to bail. (11)

Few of the individuals placed in removal proceedings--whether placed in detention or not--have legal assistance. Although non-citizens have a right to representation if they would like counsel, the non-citizen must bear the cost. (12) There is no comparable Sixth Amendment right to counsel for deportation cases. (13) Consequently, the leading national study found that only 37% of non-citizens in removal proceedings have legal representation. (14) Of those detained, only 14% have legal assistance. (15) In rural communities and small cities, the dearth of representation is particularly great: only 11% of individuals retained representation. (16)

These figures are particularly striking because the same study found that having representation was strongly correlated to a successful case outcome. (17) Detained non-citizens charged with removability were ten and a half times more likely to defeat removal when represented. (18) Respondents who avoided detention but faced removal were three and a half times more likely to win when represented. (19)

Non-citizens are far from the only demographic in the United States feeling the impact of this access to justice crisis. While the United States has the greatest concentration of lawyers in the world--roughly 1.34 million in 2017 -- (20) it is estimated that over 80% of the civil legal needs of the poor are unmet. (21) Indeed, while the federal Legal Services Corporation is the largest funder of legal assistance for the poor in the United States, and while it reported assisting 1.8 million people in 2013, the organization acknowledges that over 63 million people are actually eligible for assistance. (22) It must turn away 50% or more of those who seek assistance. (23) Moreover, federal funding for legal aid has been cut by nearly 20% since 2010 (24)--a particularly troubling fact since the population of individuals eligible for federal legal assistance has increased. (25) Studies estimate that another 40% to 75% of the middle class's legal needs also go unaddressed. (26) The problem is multi-faceted, stemming from breakdowns at financial, political, structural, and doctrinal levels. (27)

Non-citizens are acutely vulnerable to the detriments of pro se representation, and they face heightened access to justice obstacles for multiple reasons. Non-citizens have little political power since the majority cannot vote, and they face considerable societal prejudice, particularly from Americans who believe immigrants steal jobs. (28) In addition, non-profits that receive Legal Services Corporations federal funding are barred from representing undocumented non-citizens, and the federal government makes no money available for non-citizens in deportation proceedings. (29) Accordingly, the non-profit legal services which provide assistance to some poor Americans are unavailable to undocumented non-citizens, including those facing deportation. (30) Cultural elements also exacerbate the access to justice conundrum of non-citizens. Non-citizens often are not native speakers of English, they are regularly unfamiliar with American court systems, and their personal networks rarely include friends or relatives well-versed in the American legal system. (31) As discussed more below, this makes immigrants prime targets for notario fraud--a problem in which individuals untrained in immigration law prey on non-citizens by marketing themselves as practitioners of law, and then charge high fees. (32)

To address the national justice gap, lawyers and policy makers have proposed numerous legal services innovations that could expand the reach of lawyers and the availability of legal representation. These range from the "unbundling" of legal services, a service model in which clients save money by paying an attorney to perform only limited tasks of their case, (33) to pro se court reform, which would entail simplifying certain aspects of American substantive and procedural law, to improving educational practice guides and forms to better empower litigants to represent themselves. (34) Some advocates of legal services reform also suggest that authorizing more non-lawyers to conduct work historically reserved only for lawyers would also improve the access to justice gap. (35) Advocates of limited non-lawyer representation point to studies conducted abroad where non-lawyer representation is more common. These studies have indicated that "it is specialization, not professional status, which appears to be the best predictor of quality" representation. (36) Thus, while the cry for a civil-Gideon remains, (37) some now wonder whether relief will more immediately come from holistically re-conceptualizing the provision of legal services--innovating not just how lawyers serve clients, but also broadening who can serve.

In the immigration law field, the federal government has authorized non-lawyer representation of non-citizens since 1975. (38) More specifically, and as this Note fully explores, the federal government has established eligibility requirements for "accredited representatives"--non-lawyers who can represent and assist non-citizens with numerous legal needs, ranging from affirmative applications of citizenship to removal defense. (39) These representatives receive accreditation from a federal agency, previously the Board of Immigration Appeals (BIA), now the Office of Legal Access Programs (OLAP), and the representatives must work with a "recognized organization"--a non-profit organization that the Department of Justice "recognizes" as authorized to house immigration legal service providers. (40)

Accredited representatives are the focus of this Note because their federally-recognized status has been fairly controversial since inception, even while relatively little scholarship has examined their service model, studied their role in their communities, or reviewed their efficacy. Moreover, although the program remains fairly small--nationwide, only 1,985 accredited representatives are in practice today (41)--the statistics on how few non-citizens find legal representation emphasize the urgency of finding solutions. This has put more attention on the possible role that accredited representatives can play in those solutions. (42) State and local governments, as well as non-profits, have even made funding available for accredited representatives to serve non-citizens. (43)

The limited scholarship on accredited representatives raises questions about the validity of historic criticism of the program as well as the more recent embrace of their services. This Note seeks to begin filling some of the holes in the scholarship and to start conceptualizing what role accredited representatives can and do play in addressing the justice gap faced by non-citizens. To this effect, this Note catalogues and discusses interviews with individuals from five California-based recognized organizations in order to give voice to a sampling of accredited representatives and to consider how these representatives can fit into the larger access to justice solution. The five organizations are the International Institute of Redwood City, Catholic Charities of Santa Clara County, New Voice Immigration Assistance Services, Immigrant Hope Santa Barbara, and World Relief Garden Grove. Part III presents the...

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