Pending legislation in New York holds tremendous implications for access to justice for indigent immigrants, as the state may well become the first to guarantee representation for its immigrants in deportation proceedings.1 State legislators first introduced the bill, S999, in January 2020.[2] As the state legislature enters the 2023-2024 session, the “Access to Representation Act” remains in the Senate Finance Committee.[3]

Immigration proceedings in the United States, which handle issues as complicated and life-altering as asylum and deportation, take place in 68 immigration courts across the country.[4] The administrative courts are run by the Executive Office of Immigration Review (EOIR) under the Department of Justice (DOJ).[5] Crucially, since the proceedings are civil rather than criminal, the 6^th Amendment’s right to assistance of counsel does not apply to participants in the system.[6] Thus, while some immigrants scrape together funds for representation, many end up representing themselves in the labyrinthine system further complicated by its potential for language barriers.[7]

Indeed, according to data obtained by the Transactional Records Access Clearinghouse (TRAC), only 22.32% of the immigrants whose Notices to Appear (NTAs) were filed in a US Immigration Court in FY2022 (completed and pending cases) secured representation by December 2022.[8] Of those cases which were completed, 13.05% of the individuals with representation obtained relief and 4.93% of the individuals with representation had their proceedings successfully terminated––compared to 0.44% and 1%, respectively, of those who did not have representation.[9] Notably, these numbers do not control for confounding variables such as language, education, race, or court location and cannot alone establish a causal impact between representation and outcome.

However, in 2017, the New York Immigrant Family Unity Project (NYIFUP) “demonstrated a significant, causal impact of representation on outcomes, independent of other factors”[10]––at least within New York City. Under the project’s universal representation program, detained immigrants in New York City won their cases 48% of the time––compared to only 4% of the time when they were unrepresented.[11] Indeed, a New York state senator introduced the Access to Representation Act in response to the success of the NYIFUP study.[12]

In 2020, researchers at Stanford University, the University of Colorado Boulder, and the IZA Institute of Labor Economics explored the national spatial distribution of low-cost immigrant legal service providers (‘ISPs’). They found that most ISPs are concentrated in the populated urban areas such that the majority of indigent immigrants already live proximate to one.[13] However, they also found “a sizeable fraction of low-income immigrants in underserved areas [lacking proximate ISPs], which are primarily in midsize cities in the South.”[14]

Nevertheless, Rebecca Sandefur, a professor of sociology at Arizona State University, warns that expanding access to legal services does not necessarily translate to expanded access to justice.[15] Legal justice, she emphasizes, must be characterized by just legal outcomes, not merely by equitable access to representation in the legal system (a just process).[16] Sandefur suggests that high quality legal representation may in fact be an expensive solution to what is in actuality a systemic problem. “When a system is broken, we need systemic reform,”[17] she writes. “The access-to-justice crisis is a crisis of exclusion and inequality for which legal services will sometimes provide a solution. At other times, lawyers’ services will be too expensive and much more than necessary.”[18] Ultimately, Sandefur suggests, the challenge is, “to determine which justice problems of the public need lawyers’ services and which do not.”[19]

For now, we need further causal research on the impacts of robust representation in immigration courts across the country to inform potential courses of action––whether it be monetary investments in ISPs, expanded provision of a particular constellation of social services, state legislation to guarantee representation, or more drastic systemic change. Equity demands as much.

 

[1] Nicholas Turner and Erica Bryant, New York Could Become the First State to Provide the Right to Legal Representation in Immigration Court, Vera Institute of Justice (Nov. 30, 2022), https://www.vera.org/news/new-york-could-become-the-first-state-to-provide-the-right-to-legal-representation-in-immigration-court.

[2] Senate Bill S999, The New York State Senate (Jan. 9, 2023), https://www.nysenate.gov/legislation/bills/2023/S999.

[3] Id.

[4] Executive Office for Immigration Review, Office of the Chief Immigration Judge, The United States Department of Justice (Jan. 30, 2023), https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios.

[5] Id.

[6] Karen Berberich and Nina Siulc, Why Does Representation Matter? The Impact of Legal Representation in Immigration Court, Vera Institute of Justice (Nov. 2018), https://www.vera.org/downloads/publications/why-does-representation-matter.pdf.

[7] Sarah Spangler, How Can Immigrant Access to Legal Services in North Carolina be Improved?: A Case Study Analysis (Apr. 16, 2021) (B.A. honors thesis, University of North Carolina at Chapel Hill) (on file with the Carolina Digital Repository, University of North Carolina at Chapel Hill); Off. of the Assistant Sec’y for Plan. and Evaluation, Barriers to Immigrants’ Access to Health and Human Services Programs (2012).

[8] Transactional Records Access Clearinghouse, New Deportation Proceedings Filed in Immigration Court, Transactional Records Access Clearinghouse (Dec. 2022), https://trac.syr.edu/phptools/immigration/ntanew/.

[9] Id.

[10] Karen Berberich and Nina Siulc, supra note 6; Jennifer Stave et al., Evaluation of the New York Immigrant Family Unity Project, Vera Institute of Justice (Nov. 2017), https://www.vera.org/downloads/publications/new-york-immigrant-family-unity-project-evaluation.pdf.

[11] Karen Berberich and Nina Siulc, supra note 6; Jennifer Stave et al., supra note 10.

[12] Senate Bill S999, supra note 2.

[13] Vasil Yasenov et al., Identifying Opportunities to Improve the Network of Immigration Legal Service Providers (Aug. 6, 2020) (unpublished manuscript) (on file with arXiv.org).

[14] Id.

[15] Rebecca L. Sandefur, Access to What?, 148 Daedalus  49 (2019); see also Spangler, supra note 7.

[16] Rebecca L. Sandefur, supra note 15; see also Spangler, supra note 7.

[17] Rebecca L. Sandefur, supra note 15, at 52.

[18] Id. at 53.

[19] Id.