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.
National Journal
Elahe Izadi
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Elahe Izadi
April 21, 2014, 1 a.m.

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:

{{third­PartyEmbed type:in­fogram source:ht­tp://e.in­fogr.am/rep­res­ent­a­tion-in-im­mig­ra­tion-court-cases}}

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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