A national study of access to counsel in immigration court.

Author:Eagly, Ingrid V.
Position:III. The Relationship Between Attorney Representation and Immigration Outcomes through Conclusion, with footnotes and appendices, p. 47-91

Up to this point, this Article has established that the overwhelming majority of immigrants are forced to defend themselves during removal proceedings. Parts I and II have also revealed stark differences in court location, nationality, and custody status correlating with whether counsel is accessed in United States immigration courts. Yet to what extent does representation make a difference in deportation cases?

Advocates supporting expanded access to counsel for immigrants have relied on two main assumptions about the difference that representation makes. The first is that immigrants are less likely to be deported when they are represented. The second is that cases with representation move more swiftly through the system, thereby improving court and detention efficiencies by resolving cases more quickly. (160) No research has yet measured the strength of these assumptions on a national scale.

  1. Efficacy

    This Section turns to the central question of whether and how attorney representation matters for immigrants facing deportation. Two caveats are in order. First, the analysis presented here is descriptive, based on an analysis of case files. While we do show robust, statistically significant correlations between representation and certain outcomes, we do not argue that representation causes the respondent success and efficiency gains that we describe. For example, the higher success rates for relief applications that we identify in represented cases may be due to selection effects: attorneys may choose cases they can win. (161) Cases with weak facts or harsh law could be rejected and left unrepresented. Even attorneys offering free legal services through a nonprofit organization or pro bono initiative may want to be strategic and focus resources on the strongest or most sympathetic claims. In addition, clients themselves may self-select: those with the strongest desire to fight their cases may be precisely those who succeed in finding attorneys. (162) In the future, a controlled study in which immigrants are randomly assigned to counsel or self-representation would allow researchers to address some of these issues of selection bias. (163)

    Second, our analysis of the relationship between counsel and case outcomes does not purport to measure the experience (164) or zealousness (165) of the individual attorneys handling these cases. The low quality of immigration lawyering is a topic of significant concern. (166) A study of immigration judges in New York found that a shocking 33% of immigration lawyers were "inadequate" and 14% were "grossly inadequate." (167) Appellate courts have notoriously criticized the "lack-luster" skills of many immigration attorneys who practice in deportation courts. (168) Nonetheless, although we do not attempt to quantify attorney skill or strategic decisionmaking, our project is the first on immigration representation to systematically analyze case outcomes at each stage of the removal process and in relation to the organizational type of the attorneys involved. (169)

    1. Seeking and Obtaining Relief

      Success in the immigration system is generally understood as the ability to remain in the United States, achieved when the government's charges are terminated (e.g., when the Notice of Action fails to state a valid reason for removal) or when an immigration judge grants relief from removal (e.g., asylum). Using termination and relief as a combined measurement of success, we find that both detained and nondetained immigrants with counsel had higher success rates. These higher rates are displayed in Figure 14.

      Depending on custody status, representation was associated with a nineteen to forty-three percentage point boost in rate of case success. Put another way, detained respondents, when compared to their pro se counterparts, were ten-and-a-half times more likely to succeed, released respondents were five-and-a-half times more likely to succeed, and never-detained respondents were three-and-a-half times more likely to succeed.

      These findings suggest that having an attorney to help navigate the complex removal process enhances the chance of success in removal. They could also reflect other factors, such as the reality that prevailing on a pro se claim from detention is almost impossible and that attorneys tend to gravitate toward claims that they can win. Moreover, respondents cannot obtain relief unless they apply for it and, as we presented earlier, cases with representation and those litigated outside detention are far more likely to pursue relief. (171) In order to further evaluate these patterns, we next explore the two components of obtaining relief--the respondent's decision to apply for relief, followed by the judge's decision to grant the application. These findings have implications for a national public defender system. Although our data are merely descriptive and cannot predict what representation for all respondents would look like, these results suggest that universal representation would provide respondents with more avenues for relief. In addition, it may help to deter unmeritorious applications from being filed by pro se respondents. As Professor Philip Schrag has argued in the context of asylum, allowing the government to fund counsel would both "be fair to low-income asylum applicants with complex but valid cases" and "help to deter fraudulent applicants from pressing their claims." (172)

      We know that attorneys are associated with success in immigration cases, but do some types of attorneys have more success than others? The quality of the immigration bar is often criticized as substandard, (173) yet few studies have addressed the relationship between attorney type and case outcome. In a 2011 survey, New York City immigration judges rated pro bono counsel, law school clinics, and nonprofits as more highly skilled than private attorneys. (174) A recent report concluded that 83% of cases handled by nonprofit organizations in Northern California had a successful outcome. (175)

      Other empirical work in this area has focused on asylum cases. One study found that asylum seekers represented by Georgetown University's clinical program were granted asylum in 89% of cases, compared to only 46% of the time in asylum cases handled by other types of attorneys. (176) More recently, researchers analyzed asylum claims filed by 1234 immigration attorneys. (177) Among other findings, they concluded that pro bono attorneys "are better than more experienced immigration attorneys" in terms of their win rate on asylum cases. (178)

      Our attorney-type analysis builds on these earlier findings, using a more robust data sample that includes all types of claims for relief. Importantly, our analysis is also staged: we first examine the rate of case terminations and, among those cases that are not terminated, look at relief rates among those who seek relief. This type of analysis is critical to properly understanding what happens as respondents move through the removal process. (179) Finally, we also separate grant rates based on three different custody statuses: detained, released, and never detained.

      The results of our analysis are contained in Table 3. We find that small and solo firms had the worst overall performance. Across each custody status, small and solo firms had the lowest level of success attaining case termination and relief for their clients. They were more or less on par with other providers, however, in terms of the rate with which they sought relief.

      Nonprofits enjoyed high levels of success in detained cases (7% of detained cases were terminated, and 59% of detained cases with relief applications were granted). However, for detained cases, large firms, which primarily handled cases through pro bono programs, had the highest win rates of any category of attorney (11% of detained cases were terminated, and 64% of detained cases with relief applications were granted). As Table 3 reveals, nonprofits also did quite well in obtaining termination for released and never-detained clients, but were less competitive in obtaining relief than large firms, medium firms, and law school clinics.

      Law school clinical programs had the highest overall success rate of any attorney type for relief applications on behalf of nondetained clients. For clients released from detention, law clinics obtained termination in 36% of their cases and won relief in 72% of the cases where they sought relief. For clients who were never detained, law clinics obtained termination in 41% of their cases and won relief in 77% of the cases where they sought relief.

      Finally, for comparison purposes, the last row in Table 3 displays the patterns in termination, relief applications, and grants of relief for pro se respondents. The contrast between pro se respondents and represented respondents is remarkable. While other research has compared pro se and represented outcomes among certain groups of applications for relief (such as asylum), (180) our work shows that the procedural paths of pro se and represented cases are different. At the initial stage of the removal process, pro se cases were much more likely to have their charges sustained. Then, after having these charges sustained, they were far less likely to pursue relief. For instance, among detained pro se respondents, 99% had their charges sustained and 97% never sought relief from removal.

    2. Regression Analysis of the Relationship Between Representation and Case Outcomes

      To further distill the impact of attorney representation on case outcomes, in this subsection we turn to a sequential logit regression model, (181) which allows us to take into account the two-staged procedure in immigration cases and to control for various respondent- and case-level attributes. (182) As in Parts I and II, we limited our data sample to the approximately 1.2 million removal cases decided on their...

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