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| Laura Lunn |
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| Shaleen Morales |
They're simply given a list of nonprofit organizations that provide free or low-cost legal services. Yet most nonprofits cannot handle the influx of requests.
The other option is to hire a private attorney, which can be upward of $10,000 and is often cost-prohibitive. As a result, more than 70% of people in immigration detention in fiscal year 2023 represented themselves, according to data from the Transactional Records Access Clearinghouse, a nonpartisan, nonprofit data research center at Syracuse University.[1]
Even for attorneys, the U.S. immigration system is exasperatingly complex. No one should be forced to tackle something so nuanced and challenging on their own, especially if English fluency is lacking.
And the stakes are daunting: Deportation can mean leaving family members behind permanently or returning to a country where their lives are at risk.
That's why every noncitizen facing removal must have the option of free legal representation. This isn't an immigration issue — it's a matter of due process and fairness. Everyone deserves equitable access to justice, no matter where they're from. That can't happen without access to counsel.
The current immigration system is categorically unfair. People must argue their cases against trained government prosecutors before politicized immigration courts.[2] How could this possibly be the best way to ensure justice?
Last April, the U.S. House of Representatives introduced the Fairness to Freedom Act, which called for immigration courts to utilize a public defender-style model.[3]
The bill failed to gain momentum, even though the need for it is increasingly urgent. As of Dec. 17, 2023, more than 36,000 noncitizens were in ICE custody[4] — up from about 23,000 a year prior.
Over 3 million people nationwide are waiting for their cases to be heard, according to data from TRAC.[5]
Though the initial introduction of the bill stalled, the model it proposed would establish a universal right to federally funded representation for anyone facing deportation. This would ensure that no one is forced to defend themselves in immigration court alone, and no one will be deported simply because they cannot afford an attorney.
An Opportunity to Rethink Immigration Detention
It's not surprising that without legal representation most people seeking asylum lose their cases. In fiscal year 2021, 82% of people in detention who sought asylum without counsel were denied, compared to 66% of those with representation, according to an analysis by TRAC.[6]
Of course, critics point out the issue of cost to explain why Congress might be reluctant to allocate funds for a national network of immigration public defenders when cities across the country are feeling the financial strain of so many new arrivals.
The most obvious answer is to reduce the use of detention, which is onerously expensive. Sources vary on the exact figures, but it costs the U.S. government somewhere between $4 and $8 million a day to detain immigrants.[7] The government could instead use that funding to create a more efficient and equitable system.
In 2021, the Colorado Fiscal Institute estimated it would cost $15.2 million annually to provide an attorney for individuals whose cases were pending in Colorado and could not afford private representation.[8] There are now over 57,000 cases in the state backlog.[9]
Fortunately, there is a growing trend of local nonprofit organizations — in addition to the National Immigrant Justice Center and American Bar Association's Commission on Immigration — recruiting pro bono non-immigration attorneys to address the increase in asylum seekers. But this isn't a permanent solution.
A better answer is to provide zealous counsel who are trained in immigration law, analogous to a public defender model. Underwriting a pool of such experts would also have financial benefits, both for the federal government, as cases would be processed more efficiently, and for local and state governments that are having to provide resources to people who would otherwise be self-sufficient if they had access to work authorization.
Skilled lawyers could move people's cases along faster, thus reducing the backlog and helping to relieve the burden on cities.
Immigration attorneys could help people understand their rights and responsibilities in proceedings, including helping them secure permission to work lawfully as soon as possible to ensure self-sufficiency, which is critical to these clients.
People with work authorization are less likely to be vulnerable to wage theft and human trafficking. Having access to counsel at the outset of a case would help prevent these types of abuses.
No one should be detained while simply trying to access justice. People in immigration detention are not held by the federal government because they have been sentenced to a crime; the sole reason is related to their pursuit of legal rights.
Detention is disproportionately harmful to people who have experienced significant past trauma, which occurs at a high rate for people fleeing persecution and torture and for survivors of domestic violence.
A 2018 study from researchers at the Helen Bamber Foundation found that migrants and asylum seekers held in detention often experience severe anxiety, depression and post-traumatic stress disorder.[10]
Past harms that forced people to flee their homes in the first place can lead to symptoms — including poor memory, inability to place events in chronological order, disjointed thoughts and flashbacks causing disassociation from the present — that may hamper their ability to represent themselves in immigration court.
Imagining a New Kind of Immigration System
Fundamental fairness and basic due process are only possible in our immigration system if people have meaningful access to counsel. Similar to the public defender model, the government should provide attorneys when people cannot otherwise afford one.
This is the first step to reforming an antiquated structure that no longer serves the needs of our communities. Let's imagine a more humane system that ensures access to justice and no longer relies on a system of imprisonment for people in civil immigration proceedings.
When viewed this way, it would not matter how a person arrived in this country. Applying for protection from persecution or seeking legal status to remain with one's family would not be an antagonistic endeavor.
Immigration court should not be constructed in a way that mirrors criminal legal proceedings. Rather, it should be a trauma-informed administrative process in which people are evaluated on whether they meet the criteria to receive a legal benefit.
Until that happens, the most basic and meaningful way we can infuse fairness into the immigration legal system is through enhanced due process protections afforded by access to counsel. This shift will ensure people understand what is required to win their cases, with life-saving implications.
It also symbolizes what our nation stands for: a place where everyone has a chance to be treated fairly — including people knocking at our door asking for help and seeking the opportunity to live safely and freely in the U.S.
Laura Lunn is director of advocacy and litigation, and Shaleen Morales is the universal representation staff attorney in the detention program, at Rocky Mountain Immigrant Advocacy Network.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://trac.syr.edu/phptools/immigration/closure/.
[2] https://www.aila.org/featured-issues/immigration-courts.
[3] https://www.congress.gov/bill/118th-congress/senate-bill/1187?s=1&r=20.
[4] https://trac.syr.edu/immigration/detentionstats/pop_agen_table.html.
[5] https://trac.syr.edu/phptools/immigration/backlog/.
[6] https://trac.syr.edu/immigration/reports/667/.
[7] https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics, https://www.dhs.gov/sites/default/files/2022-03/22-%201835%20-%20FY%202023%20Budget%20in%20Brief%20FINAL%20with%20Cover_Remediated.pdf, https://www.dhs.gov/sites/default/files/2023-03/U.S%20IMMIGRATION%20AND%20CUSTOMS%20ENFORCEMENT_Remediated.pdf, https://www.aila.org/library/featured-issue-immigration-detention.
[8] https://www.coloradofiscal.org/wp-content/uploads/2021/02/2.12.21-Final-Report-2.pdf.
[9] https://trac.syr.edu/phptools/immigration/backlog/.
[10] https://bmcpsychiatry.biomedcentral.com/articles/10.1186/s12888-018-1945-y.