Public Defenders Are Needed to Ensure Justice in Our Immigration Court System

Post by Ingrid Eagly, Professor of Law at UCLA School of Law, and Faculty Director of the David J. Epstein Program in Public Interest Law and Policy.

The global migration crisis is placing immigration courts in the world spotlight. In the United States, immigration courts are severely backlogged and detention costs are soaring. Yet, because deportation is considered a civil, not a criminal, matter, the Sixth Amendment of the United States Constitution does not require the appointment of counsel. This lack of counsel is not only harming the immigrants subject to the deportation process, but it also prevents our courts from reaching just and efficient decisions when faced with increased migration flows.

Immigrants too poor to afford counsel need public defenders.

In a new study just published in the University of Pennsylvania Law Review, Steven Shafer and I conducted the first-ever national evaluation of access to counsel in US immigration courts. We analyzed over 1.2 million immigration cases decided between 2007 and 2012 that we obtained from the immigration court’s own database. What we find is a dismal picture of access to counsel in immigration proceedings. Nationally, only 37% of immigrants found a lawyer. For immigrants held in detention centers during their court case, the situation was even more dismal: 86% of detained immigrants attended court without a lawyer. The geographic disparity in representation was also striking. For example, while 90% of non-detained immigrants in New York City secured counsel, only .002% of detained immigrants in Tucson, Arizona found attorneys. Obtaining a lawyer was especially difficult in small cities and rural areas. Some remote cities that host major detention centers—such as Lumpkin, Georgia—did not have a single practicing immigration attorney.

Immigration law is notoriously complex. Lawyers can assist immigrants to pursue valid claims to remain here lawfully, while discouraging them from bringing meritless claims that clog the courts. Immigration attorneys in our study did just that—they only filed claims for some of their clients and, when they did pursue relief, they succeeded well over half of the time. Nationally, however, free legal services for immigrants are shockingly scarce. Over a six-year period, only 2% of all immigrants facing deportation obtained pro bono representation from nonprofit organizations, law school clinics, or volunteers from large law firms. The remaining 98% had to either pay for counsel or proceed on their own. Appointing lawyers for immigrants who are unable to afford counsel could improve the fairness and efficiency of our immigration system. Without counsel it is almost impossible for immigrants to defend themselves in court. Over the six-year time frame of our study, 98% of immigrants without counsel were deported.

Providing public defenders for poor immigrants could also reduce spending on expensive detention centers. In our study, almost half of immigrants with attorneys were released on bail, compared to only 7% of those without attorneys. Every release from detention saves the government money. According to estimates, the government pays approximately $159 per day for every immigrant it detains, and even more for those held in so-called ‘family detention’ centers. In addition, despite concerns that immigrants might not come to court, we found that 93% of released immigrants with lawyers attended all of their future court hearings. 

Using government funding to provide legal representation would not be unprecedented. Since 2003, federal immigration courts have funded a Legal Orientation Program that provides know-your-rights trainings in detention centers across the country. More recently, the Department of Justice announced that it would appoint counsel at government expense for detainees with severe mental impairments and established a new program to provide legal assistance to immigrant children who cross our border without a parent. An innovative model program in New York City, known as the New York Immigrant Family Unity Project, uses city funds to appoint attorneys from public defender agencies to represent detainees who cannot afford to pay for an attorney. Admittedly, providing attorneys for immigrants costs money, but economic research has shown that such programs can pay for themselves by helping courts to resolve cases more quickly.

The time has come to establish a national public defender system for immigrants. Appointing lawyers at government expense would not only be the right thing to do, but it could also help our overburdened immigration courts to function more efficiently and reduce our country’s dependence on incarceration to manage the migration crisis.

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How to cite this blog post (Harvard style):

Eagly, I. (2016) Public Defenders Are Needed to Ensure Justice in Our Immigration Court System. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/04/public-defenders (Accessed [date]).