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Undocumented Immigrants Are Lawyering Up Undocumented Immigrants Are Lawyering Up

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Policy

Undocumented Immigrants Are Lawyering Up

The majority of immigration court cases now involve legal representation.

An undocumented Guatemalan immigrant, chained for being charged as a criminal, prepares to board a deportation flight to Guatemala City, Guatemala at Phoenix-Mesa Gateway Airport.(John Moore/Getty Images)

photo of Elahe Izadi
April 21, 2014

The majority of immigration court cases in 2013 involved immigrants who had legal representation, a reversal from five years ago, according to new data from the federal government.

In 2013, 59 percent of those in immigration proceedings had legal representation—that's a big jump from 2009, when just 39 percent had lawyers. In 2012, a very slim majority of cases had clients with no legal representation. Those figures come from the 2013 statistical yearbook from the Executive Office for Immigration Review, or EOIR, which is part of the Justice Department.

Nearly all new cases that came to immigration courts last year were deportation cases. Click through this graphic to see how legal representation in new immigration cases changed over the past five years:

 

So, what happened? A number of factors are at play.

For one, the government has done more to help connect the undocumented with pro bono resources, particularly the EOIR working with third-party groups. For instance, Health and Human Services has funded the coordination of pro bono representation of juveniles in immigration proceedings. New programs, such as the creation of the Legal Orientation Program for Custodians in 2012, help educate adult custodians of undocumented children and connect them to representation. And EOIR has a recognition and accreditation program to give low-income undocumented immigrants access to reputable and legitimate legal representation.

But, also, the nature of immigration cases has shifted over the past few years. Executive actions and administrative directives have changed and highlighted the ways some undocumented immigrants can seek relief from deportation proceedings. In 2011, then-Director of U.S. Immigration and Customs Enforcement John Morton formalized prosecutorial discretion, which directed immigration officials to take mitigating factors into consideration, such as how long a person has been in the U.S. In 2012, the Obama administration issued Deferred Action for Childhood Arrivals, which lets dreamers delay deportation proceedings. The share of such cases in courts has increased through the years.

Things like that "have really brought the immigrant community into kind of a savvier understanding of what their rights might be," says Crystal Williams, executive director of the American Immigration Lawyers Association. Additionally, increased anti-deportation activism may have also heightened awareness that legal resources are available. 

That also means that many of the people going through the court system may happen to have more complex cases, particularly given the administration's emphasis on people with criminal charges—even though a New York Times analysis found that many of those deported during the Obama administration had minor violations.

Of course, it's worth noting that the overall number of decided immigration cases has declined, from 224,577 in 2009 to 173,018 in 2013. If a greater proportion of those cases involved complex factors, or people with criminal charges, those individuals may have already been exposed to legal resources, Williams reasons. She also notes that AILA membership has increased in recent years. "There may be more attorneys available for people to retain, and it may just be as simple as that."

More immigrants having lawyers means that these immigration cases have become more complex and can take longer to resolve. That's contributed to a slowdown in the number of new deportation cases, reports The New York Times, even as budget cuts have increased the backlog of cases. Court-ordered deportations actually dropped by 43 percent from 2009 to 2013. And roughly half of immigrants are now winning their cases before judges, according to analysis by Syracuse University.

At the same time, a large share of undocumented immigrants removed from the U.S. actually don't go before a judge, according to Homeland Security data. So just because immigrants may have more legal representation in court doesn't mean that most of those who get deported have had lawyers.

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