Update on Right to Counsel in Immigration 

by Hitha Bollu, PBI Intern

The PBEye has long followed movements to secure the right to counsel because this right marks essential progress in the struggle for access to justice for all. While we celebrated the 60th anniversary of Gideon v. Wainwright in March, which established the right to counsel in criminal proceedings, there is still no “civil Gideon” in civil and administrative proceedings, including immigration. Therefore, people who are asserting their right to stay in the United States, including those who are detained, do not have a right to access an attorney to help them through the challenging removal proceedings process.

Many non-citizens face removal proceedings in immigration court without the counsel of a legal expert, despite the legal complexity of the case, and the weight of the repercussions. There are a variety of organizations that have researched and reported statistics on this issue, which paint a dire picture of the state of legal representation in removal proceedings. According to the Congressional Research Service (CRS), as of the first quarter of FY2022, approximately 53 percent of all respondents with pending removal cases had representation, a decline from the first quarter of FY2018, when 67 percent of respondents had representation in removal proceedings. The CRS further found that the rate of success differed substantially for those who were represented: 44 percent of represented individuals were granted relief compared to only 15 percent of unrepresented individuals. Vera Institute of Justice (Vera) reported that as of September 2022, 800,000 unresolved pending immigration cases that had begun in FY2020 or later lacked representation.

Looking over a longer period, the American Immigration Council (AIC) found that 44 percent of the 5.6 millionindividuals who appeared in U.S. immigration court between February 2002 and February 2022 had counsel and the other 56 percent did not. For detained immigrants in removal proceedings, the situation is worse. The ACLU has reported that approximately 70 percent of detained adults, as well as many children, asylum seekers, and people who have language barriers, undergo their immigration proceedings without legal assistance.

The AIC further noted that there is a sharp disparity in representation rate based on the state in which the removal proceedings are taking place. For example, as of July 2022, Florida had 278,360 pending cases; however, only 28.2 percent had access to an immigration attorney, whereas in New York, which had 177,588 pending removal cases at that time, 71.7 percent had representation. TRACImmigration also reported that attorney availability varies widely amongst jurisdictions, with immigrants in places like New York and California being more likely than immigrants in Texas, Florida, and Georgia to have representation.

At the local level and state level, there are movements to fund immigration lawyers to represent individual in removal proceedings: TRACImmigration reports, “a number of cities, including New York CityAustinChicagoLos AngelesSan FranciscoSeattle, and Washington, D.C., have begun providing some funding to support legal representation for those unable to afford an attorney in these proceedings.” Additionally, TRACImmigration notes the first movement at the state level: “New York State recently passed legislation to provide some public funding as well, and legislation is under consideration in other states.” This funding can help these jurisdictions to establish more legal clinics and hire more immigration lawyers.

In an effort to ameliorate the problems that arise from a lack of legal assistance during removal proceedings, advocates in New York seek passage of the Access to Representation Act, which would establish the right to legal counsel for people facing deportation. Vera noted that there was an immigration backlog of nearly 2 million cases nationally, including more than 180,000 cases within New York state as of September 2022. The Act would provide $120 million dollars for essential services, the bulk of which would go to improve access to legal assistance. The Campaign for Access, Representation, and Equity (CARE) for Immigrant Families Coalition, a coalition of over 100 different organizations, says that the Access to Representation Act “would establish a right to counsel in immigration court proceedings.”

Additionally, the Immigration and Nationality Law Committee, Civil Rights Committee, and the Pro Bono and Legal Services Committee of the New York City Bar wrote a letter to the Governor and State Assembly and Senate Leadership to request increased funding for immigration legal services in FY2024, and for passage of the Access to Representation Act (Assembly Bill A170A and Senate Bill S999A) to guarantee the right to counsel to people facing deportation. The letter explained how the right to counsel could ameliorate challenges within immigration proceedings, such as “language barriers, trauma, different and sometimes corrupt legal systems in country of origin, as well as poverty and lack of resources, to name a few.” The letter comments on the role of pro bono attorneys in helping the immigrant community; the bar notes that Legal Services Providers (LSPs) and pro bono attorneys are doing their best but that there are insufficient legal resources, such as short-staffing of the LSPs, that directly impacts the amount of mentoring, pro bono placement, and other services that can be provided under the current system.

There are some efforts for change at the national level as well. The 2023 Fairness to Freedom Act, championed by Senators Gillibrand and Booker and Representatives Norma Torres, Meng, and Jayapal, would render individuals eligible for government-appointed counsel if their family income is less than 200 percent of the poverty line. This follows a 2022 Senate letter led by Senator Gillibrand and a House letter led by Congresswoman Torres that called for funding for legal representation for indigent adults facing removal. In the executive branch, this year the administration has requested $150 million funding for the Department of Justice to provide legal representation in immigration-relating proceedings. In March 2023, the American Immigration Lawyers Association (AILA), the national bar association of immigration attorneys and law professors, advocated to Congress to fund the Department of Justice pilot program with $400 million to benefit individuals who are facing removal.

The PBEye will continue to follow developments in this field. If you are interested in supporting the right to counsel in immigration cases, consider getting engaged in advocacy at the local, state, or national level.