The National Immigrant Justice Center (NIJC) is proud to endorse the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act, S.2389 / H.R. 4155, led by Senator Kirsten Gillibrand in the Senate and Representatives Zoe Lofgren and Donald McEachin in the House of Representatives. The FAIR Proceedings Act takes critical steps to ameliorate the due process crisis in U.S. immigration courts by requiring the appointment of counsel where most needed.
In 2017, NIJC conducted a survey of the legal service providers in the states surrounding a large U.S. Immigration and Customs Enforcement jail in New Mexico; we were shocked to find that at maximum capacity, the local bar could only possibly have provided representation to six percent of the jail’s population. We met with one Central African asylum seeker who was attempting to represent himself in appealing the immigration judge’s denial of his asylum claim; when the immigration judge asked him why he didn’t have a lawyer he responded that it would have taken a miracle to find one.
Three years later, the immigration court system has gone from bad to worse. More than half of immigrants appear in front of an immigration judge, opposite a trained federal prosecutor, without counsel. For those defending against deportation from detention, more than 80 percent appear pro se, or without representation. Through a combination of byzantine regulations, crushing production quotas for judges, and policies that cripple judicial discretion, the courts are in utter disarray. NIJC’s Ashley Huebner recently told the Associated Press that the immigration court system is defined by “bureaucratic red tape gone crazy.”
NIJC provides representation to more than 10,000 people seeking legalization or defending against deportation each year, but still our legal services teams are overwhelmed by the unmet need for representation among immigrant communities. Much of our representation is made possible through our partnerships with approximately 2,000 pro bono attorneys from the nation’s leading law firms who volunteer their time to tackle the complex immigration system and provide free representation to NIJC clients. We asked some of these attorneys to reflect on the need for appointed counsel in the immigration court systems, and their responses were overwhelming.
“Having dedicated hundreds of pro bono hours representing asylum clients in immigration court, I’ve learned firsthand how byzantine the immigration system can be, even for sophisticated attorneys,” said Marlow Svatek at Sidley Austin LLOP. “I’ve also seen how having a lawyer to help navigate this complex system can be the deciding factor in whether or not asylum is granted. By providing legal counsel to those who need it most, the FAIR Proceedings Act would help bridge this gap and ensure that immigration proceedings are decided based on the merits rather than a lack of resources.”
Adam Weiner of Reed Smith LLP shared Marlow’s perception of the relationship between representation and outcomes in the immigration court system: “I’ve seen firsthand the wide disparity in immigration adjudication outcomes based solely on whether or not someone has access to legal representation. For those struggling with extreme trauma and/or extremely limited means, navigating the immigration system without a lawyer usually means failure regardless of the substance of their claims.”
Others observed the critical role representation plays in ensuring efficiency in the immigration court system. “’Justice delayed is justice denied’—with a hefty price tag,” notes Margaret O’Connor at Goldberg Kohn. “Without appointed counsel, vulnerable populations routinely must ask for continuances to try to secure private counsel. When that fails and the individual is forced to proceed pro se, more often than not, a series of inefficiencies compound and create a haphazard, expensive, and drawn-out process.”
Eric Garcia at Allstate wonders how “anyone without counsel can even get past square one, let alone receive a fair resolution of their case” given the constant changes in regulations and procedural requirements governing immigration court practice. “Having appointed counsel in the immigration court system for certain proceedings, vulnerable persons, and detention centers is a step in the right direction to afford those persons with tremendous need access to justice.”
The FAIR Proceedings Act would require the appointment of counsel for children, people with disabilities, survivors of violence, and indigent individuals facing removal proceedings. It would also level the playing field by ensuring access to counsel and know-your-rights programming for those in remote detention centers. With so much to rebuild and repair across the immigration system, it is critical that members of Congress stand up for the principle of appointed counsel as a threshold imperative.
Heidi Altman is NIJC's director of policy.