Quality over quantity: Legal representation at the Asylum Office

• Published date: 01 October 2021
• Author: Hillary Mellinger
• Date: 01 October 2021
• DOI: http://doi.org/10.1111/lapo.12177

ORIGINAL ARTICLE

Quality over quantity: Legal representation

at the Asylum Office

Hillary Mellinger

Washington State University, Department of

Criminal Justice and Criminology, Pullman,

Washington, USA

Correspondence

Hillary Mellinger, Washington State

University, Department of Criminal Justice

and Criminology, PO Box 644011, Pullman,

WA 99164, USA.

Email: hillary.mellinger@wsu.edu

Funding information

American University Doctoral Student

Research Scholarship

Abstract

Quantitative studies emphasize a positive relationship

between legal representation and asylum case outcomes

but are stymied by potential case-selection bias. More-

over, few studies address whether an attorney’s quality

level might affect case outcomes or how high-quality rep-

resentation should be conceptualized. The present study

informs this literature by drawing on 28 interviews with

immigration attorneys who practice before the Asylum

Office. It finds that most interviewees accept challenging

asylum cases and share a “big picture”understanding of

what high-quality representation should entail. However,

interviewees differ in their approach to declaration writ-

ing and their perceptions of the quality level of the

private bar.

1|INTRODUCTION

F

atima, an asylum seeker in her thirties from a Central American country, fixed her gaze at a

remote spot on the wall of the immigration detention center.

1

Her tone of voice was flat, but

her eyes glistened with tears as she relayed the reasons why she feared returning to her home

country. As a result of a “Know Your Rights”presentation given to her, she was aware that she

had the right to an attorney, but at her own expense. F

atima could not afford an attorney. She

was cold—the detention center was always cold—and she was afraid. “¿Qué me va a pasar?”

(“What will happen to me?”), she asked. Her eyes briefly flicked to mine. She then stared reso-

lutely back at the wall, perhaps trying to imagine the future that I could not describe to her.

In 1932, the United States Supreme Court ruled that criminal defendants in capital

punishment cases had a constitutional right to effective counsel (Powell v. Alabama, 1932). In

other words, the Supreme Court found that the mere presence of counsel was not enough; an

attorney should also be of sufficiently high caliber to effectively advocate on behalf of the

accused. Subsequently, in 1963, the Supreme Court determined that criminal defendants had

the right to counsel in all felony cases, no longer limiting this right to capital cases (Gideon

v. Wainwright, 1963). Since this landmark decision, the American Bar Association (ABA) has

DOI: 10.1111/lapo.12177

©2021 University of Denver and Wiley Periodicals LLC.

368 Law & Policy. 2021;43:368–389.wileyonlinelibrary.com/journal/lapo

sought to ensure “both the quality and availability of counsel”for criminal defendants (Maher,

2003, p. 1095). To this end, the National Legal Aid Defender Association (NLADA) recently

created a comprehensive index of how to clearly define and measure high-quality legal represen-

tation within the criminal defense context (Beeman, 2018; Beeman et al., 2018).

A similar Supreme Court judgment does not exist in the immigration law context, despite a

1922 Supreme Court ruling that deportation “may result . . . in loss of . . . life; or of all that

makes life worth living”(Ng Fung Ho v. White, 1922, p. 284). For individuals such as F

atima,

the most that US immigration law provides is the right to counsel at one’s own expense (INA

Section 240(b)(4)(A)).

2

This is because immigration law is considered to be civil, rather than

criminal, in nature (Eagly, 2010). It is perhaps because of this that immigrant advocacy efforts

have largely focused on universal legal representation for indigent immigrant defendants, with-

out fully addressing the competency level of that representation. However, an attorney’s quality

level is an important aspect of due process rights; indeed, a study of New York immigration

courts asserted that “[t]he immigration representation crisis is a crisis of both quality and quan-

tity”(New York Immigrant Representation Study [NYIRS] Steering Committee, 2011, p. 1).

Moreover, although high-quality legal representation is important for all types of immigration

cases, it is particularly crucial for asylum cases, in which an adjudicator’s decision to deny asy-

lum could result in the asylum seeker being deported to a country where he or she could be per-

secuted or killed (Adams & Lasker, 2011).

The push for immigrant defendants to be provided with legal representation has largely been

spurred by quantitative studies that find a positive relationship between legal representation

and immigration case outcomes (Eagly & Shafer, 2015; Ramji-Nogales et al., 2007, 2009;

Schoenholtz et al., 2014).

3

However, these studies are stymied by their inability to address

potential case-selection bias; in other words, it is unclear whether favorable immigration case

outcomes are due to immigrants having legal representation or whether attorneys primarily rep-

resent immigrants with strong legal cases. Indeed, Hamlin (2014) interviewed several immigra-

tion attorneys who explicitly cautioned asylum seekers against filing weak cases since doing so

could put them at risk of being deported should their asylum claims not be granted. This sug-

gests that it may be difficult to separate the possible effects of legal representation from asylum

case outcomes, given that immigration attorneys may only file the most meritorious asylum

claims under current case law.

Finally, only a few studies have assessed attorneys’quality levels, in spite of the fact that an

attorney’s competency likely has an influence over case outcomes (Miller et al., 2015; NYIRS

Steering Committee, 2011, 2012). Moreover, the few studies that have examined immigration

attorneys’quality levels have done so by asking immigration judges their opinion of the private

bar (NYIRS Steering Committee, 2011, 2012) or by creating an index of the factors that

scholars deem to be objective indicators of legal representatives’quality levels (Miller et al.,

2015). These studies, although important, have left out a key voice in the debate over what it

means to have high-quality legal representation in the immigration context: the voice of immi-

gration attorneys themselves.

However, before we can operationalize high-quality legal representation for the purposes of

quantitative analysis, we must first understand at a conceptual level what it means to provide

high-quality legal representation. To do this, we must reach out to a wide range of legal actors

that includes, but is not limited to, judges and asylum officers. Although the opinions of these

adjudicators are important, scholars should also consider the views of immigration attorneys,

whose actions contribute to how asylum applicants perceive the United States’labyrinthine

immigration system. Indeed, many asylum applicants may interact with immigration attorneys

far more frequently than they do with adjudicators themselves. Viewed through this lens, immi-

gration attorneys’views, while not more important than those of judges and asylum officers,

are nonetheless crucial if we are to understand what it means to have high-quality legal

representation.

LAW & POLICY369