Thursday, April 2, 2015
Immigration Article of the Day: National Study of Access to Counsel in Immigration Court by Ingrid V. Eagly and Steven Shafer
National Study of Access to Counsel in Immigration Court by Ingrid V. Eagly (UCLA School of Law; University of Oxford - Border Criminologies) and Steven Shafer (UCLA School of Law), March 19, 2015, University of Pennsylvania Law Review, Vol. 164, 2016, Forthcoming UCLA School of Law Research Paper No. 15-10
Abstract: Although immigrants have a right to be 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 advocates, public figures, scholars, courts, and philanthropic foundations have begun to push for the establishment of a public defender system to appoint counsel for at least some poor immigrants facing deportation. Yet, the national debate over appointing immigration defense counsel 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 an extensive data sample of over 1.2 million deportation cases decided between 2007 and 2012, we find that only 37% of immigrants overall, and a mere 14% of detained immigrants, secured representation. Nationwide, only 2% of removal respondents obtained pro bono representation from nonprofit organizations, law school clinics, or large law firm volunteer programs. Barriers to accessing counsel were particularly acute 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 in immigration court do better: after controlling for numerous case and respondent characteristics that could affect case outcomes, our regression analysis reveals that the odds are 15 times greater that an immigrant with representation, as compared to one without, sought relief, and 5.5 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 did not use valuable court and detention time to seek counsel, they 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 current efforts to expand access to counsel, while improving court efficiencies.