A national study of access to counsel in immigration court.

• Author: Eagly, Ingrid V.
• Position: Introduction through II. Unequal Access to Immigration Representation, p. 1-47

Although immigrants have a right to he 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.

INTRODUCTION I. WHAT DOES IT MEAN TO BE REPRESENTED BY COUNSEL IN UNITED STATES IMMIGRATION COURTS? A. Case-Level Representation B. Hearing-Level Representation C. Case Type D. Attorney Type II. UNEQUAL ACCESS TO IMMIGRATION REPRESENTATION A. Detention B. Geography C. Nationality III. THE RELATIONSHIP BETWEEN ATTORNEY REPRESENTATION AND IMMIGRATION OUTCOMES A. Efficacy 1. Seeking and Obtaining Relief 2. Regression Analysis of the Relationship Between Representation and Case Outcomes B. Efficiency 1. Court Continuances to Find Counsel 2. Litigation Patterns in Represented Cases 3. Release from Detention 4. Failures to Appear in Court CONCLUSION APPENDIX A. Coding of Case, Hearing, and Respondent Characteristics B. National Sample C. Additional Analytical Samples INTRODUCTION

It has long been the case that immigrants have a right to counsel in immigration court, but not at the expense of the government. (1) In recent years, advocates, bar organizations, scholars, public figures, and foundations have begun to push for the establishment of a national public defender system to appoint counsel for at least some poor immigrants facing deportation. (2) Following a landmark decision in the Ninth Circuit, (3) immigration judges now appoint counsel for detainees with serious mental impairments. (4) A nationwide class action lawsuit alleges that the federal government is legally required to appoint counsel for all children in removal proceedings. (5) Prominent judges, (6) politicians, (7) and bar association leaders (8) have called for systematic attention to providing representation for immigrants facing deportation. Government and philanthropic donors established the first-ever program to provide appointed counsel for detained immigrants in New York City, (9) and an innovative pro bono effort provided universal volunteer representation for women and children held in a remote detention facility in Artesia, New Mexico. (10)

Advocates favoring government funding of immigration counsel rely on claims that too many immigrants are forced to go before immigration judges without counsel and that unrepresented litigants fare worse than do those with attorneys. (11) Other arguments in support of providing counsel reflect the belief that attorneys can reduce the strain on overworked judges by helping to resolve cases more quickly. (12) Yet, on a national level, there is limited factual information available to support these assumptions. Although the federal government publishes a yearly statistical review, such reports focus on the immigration court's caseload rather than on a detailed analysis of attorney representation. (13) Prior efforts to study representation in immigration court, while extremely valuable, rely on data samples of limited size and scope, such as cases decided in one city, (14) cases raising certain types of claims, (15) or cases from select immigration courts. (16) As courts and policymakers explore models for creating a public defender corps for immigration courts, it is crucial to bring data to bear in order to understand the role attorneys currently play on a national scale. (17)

This Article presents the results of the first national study of the scope and impact of attorney representation in United States immigration courts. Our study is based on an independent analysis of over 1.2 million immigration removal cases decided during the six-year period between 2007 and 2012. (18) This extensive dataset was obtained from the Executive Office for Immigration Review (EOIR), the division of the Department of Justice that conducts immigration court proceedings. (19) Our analysis of these court cases was informed by our study of court rules and procedures and review of government documents obtained through the Freedom of Information Act. (20) In addition, qualitative research provided an on-the-ground understanding of the data we analyzed. (21) This investigation included attending court sessions at six of the highest-volume immigration courts, (22) observations of the know-your-rights programs provided to detained respondents in these courts, (23) and interviews with representatives of the National Association of Immigration Judges (24) and attorneys representing immigrants in removal proceedings around the country. (25)

Our study provides empirically based answers to the key questions regarding immigration representation that judges, advocates, and policymakers are asking. While many of these answers confirm the intuitions of those most familiar with immigration courts, others counter the conventional wisdom regarding the availability of counsel. Part I begins by providing a principled statistical analysis of what it means to be "represented" by counsel in immigration court. By looking at individual removal cases decided on the merits, we find that only 37% of immigrants had counsel during our study period from 2007 to 2012. (26) Importantly, this percentage is lower than what is reported in government publications that do not rely on the proportion of cases with representation, but rather rely on the proportion of court proceedings with representation. Our research reveals that represented cases are more likely to have multiple proceedings in a single case and, therefore, a proceeding-based measurement technique artificially inflates representation rates.27

Our research also counters the standard narrative that the supply of counsel is increasing as a result of expanded pro bono legal services. We show that the gradual increase in representation rate that occurred during the study period captures a decline in completed case volume, not an increase in the number of immigrants who actually received representation. (28) Moreover, we find that only 2% of immigrants facing removal secured pro bono representation from large law firms, nonprofits, or law school clinics. The lion's share of immigrant representation--90% during the six-year study period--was provided by solo or small firm practitioners. (29) Finally, discussions of attorney representation often assume that representation is necessarily complete, but we find that only 45% of immigrants we count as "represented" had an attorney appear at all of their court hearings. (30)

Part II builds on these baseline descriptions of representation in United States immigration courts to uncover stark inequality in the distribution of limited attorney resources. Representation rates differed markedly along key axes, including detention status, geographic location of the court, and the nationality of the respondent. Across the six-year period studied, detained respondents went without counsel 86% of the time. (31) Revealing wide geographic disparities in representation, we find that almost 90% of nondetained immigrants in New York City secured counsel, compared to only .002% of detained respondents in Tucson, Arizona. (32) Immigrants with court hearings in large cities had representation rates more than four times greater than those with hearings in small cities or rural locations. (33) Immigrants from Mexico had the lowest representation rate of any major nationality group in our study, with only 21% represented in court. (34)

Part III investigates two commonly asked questions in the debate over the potential creation of a national system for immigrant representation--the first focuses on efficacy and the second on efficiency. (35) First, is providing lawyers for immigrants associated with more immigrants seeking relief from removal and obtaining successful outcomes in their cases? Second, regardless of case outcome, do lawyers grease the wheels of justice, enabling courts to get their work done in less time?

With respect to the efficacy of representation, we find that immigrants who are represented by counsel do fare better at every stage of the court process--that is, their cases are more likely to be terminated, they are more likely to seek relief...