The Yerman Group has represented over 10,000 clients before the Executive Office of Immigration Review – also known as the immigration court. Immigrants have a right to counsel in immigration court, but that expense is borne by the noncitizen. Because deportation is classified as a civil rather than a criminal sanction, immigrants facing removal are not afforded the constitutional protections under the Sixth Amendment that are provided to criminal defendants. Whereas in the criminal justice system, all defendants facing even one day in jail are provided an attorney if they cannot afford one, immigrants facing deportation generally do not have that opportunity.
Detained immigrants, particularly those held in remote locations, face the additional obstacle of accessing counsel from behind bars. Yet, in every immigration case, the government is represented by a trained attorney who can argue for deportation, regardless of whether the immigrant is represented.
The lack of appointed counsel has a profound impact on immigrants’ ability to receive a fair hearing.
Access to counsel is scarce and unevenly distributed across the United States
- Nationally, only 37 percent of all immigrants secure legal representation in their removal cases.
- Immigrants in detention are the least likely to obtain representation. Only 14 percent of detained immigrants acquire legal counsel.
- Representation rates varied widely by court jurisdiction.
- New York City’s representation rate for non-detained cases (87 percent) are a full 40 percent higher than that of Atlanta (47 percent).
- Immigrants with court hearings in small cities are more than four times less likely to obtain counsel than those with hearings in large cities (11 percent in small cities versus 47 percent in large cities).
- Immigrants of different nationalities had very different representation and detention rates.
- Mexican immigrants have the highest detention rate (78 percent) and the lowest representation rate (21 percent) of nationalities examined. In contrast, Chinese immigrants have the lowest detention rate (4 percent) and highest representation rate (92 percent).
Immigrants with attorneys fare better at every stage of the court process
- Represented immigrants in detention who have a custody hearing are four times more likely to be released from detention (44 percent with counsel versus 11 percent without).
- Represented immigrants were more likely to obtain the immigration relief they sought.
- Among detained immigrants, those with representation are twice as likely as unrepresented immigrants to obtain immigration relief if they sought it (49 percent with counsel versus 23 percent without).
- Represented immigrants who were never detained are nearly five times more likely than their unrepresented counterparts to obtain relief if they sought it (63 percent with counsel versus 13 percent without).
The fact that so few immigrants in deportation proceedings are represented by counsel is important because having an attorney is associated with successful immigration outcomes. The data show that immigrants with legal counsel were more likely to be released from detention, avoid being removed in absentia, and seek and obtain immigration relief.
Two Stages of Immigration Removal
Removal is a two-stage process. In the first stage of the process, the Department of Homeland Security (DHS) files a charging document (known as a “Notice to Appear”) against the immigrant (referred to in immigration court as the “respondent”), and the judge decides whether to sustain those charges. If the Notice to Appear does not state a valid ground for removal, the judge must terminate the case. For example, the judge will terminate the case if the respondent is a U.S. citizen. For cases that are terminated, the respondent will generally be allowed to remain in the United States.
If the immigrant is found to be removable, the second stage of the proceeding begins. In this stage, the immigrant will be ordered removed unless he or she pursues an application for relief. For example, an immigrant may be eligible for asylum based on a well-founded fear of persecution on certain grounds. Alternatively, an immigrant may obtain a limited form of relief called “cancellation of removal” based on, among other factors, a long-term residence in the United States and U.S. citizen or Lawful Permanent Resident family members. If the judge grants the application for relief, the immigrant is allowed to remain in the United States. If, however, the application for relief is denied, the immigrant will be required to leave the United States.
Immigrants with representation are more likely to be released from detention
Immigrants in detention are more likely to secure release with the aid of an attorney. For those immigrants who are eligible for release on bond or other conditions, immigration judges may hold a custody hearing if one is requested. When judges rule on an immigrant’s request for release prior to trial, they must weigh numerous factors related to risk of flight and public safety. Immigrants who are granted bond will be released if they are financially able to post the required amount.
Approximately 44 percent of represented detainees are granted a custody hearing before the judge, compared to only 18 percent of detainees without counsel. This increase indicates that having an attorney is necessary in navigating the complex rules governing eligibility for custody hearings.
Immigrants with representation are more likely to appear in court
Immigrants who are not detained must appear in court at a later date for their immigration removal hearing. If, however, the immigrant fails to appear for one or more of these hearings, the judge may enter a removal order without the immigrant being present. These removal orders issued when the immigrant fails to appear are referred to as “in absentia” removal orders.
Immigrants who are represented by attorneys are far more likely to attend their immigration court hearings and thus avoid these in absentia orders. Ninety percent of unrepresented immigrants with removal orders are removed in absentia versus only 29 percent of their represented counterparts with removal orders. Representation by counsel is strongly associated with immigrants coming to court. When immigrants appear in immigration court, immigration judges can more effectively do their jobs.
Immigrants with representation are more likely to win their removal cases
Not only are represented immigrants less likely to be ordered removed in absentia, they are also more likely to win their removal cases.
Success in a removal case can happen in either of the two stages of immigration proceedings. The immigrant can succeed in the first stage of the removal process if the judge terminates the case because the charges do not state a valid ground for removal. The immigrant can also succeed in the second stage of the removal process if the judge grants the immigrant relief from deportation so that he or she can remain lawfully in the United States.
Immigrants with representation are more likely to seek and obtain relief from deportation
Immigrants facing removal cannot obtain relief unless they apply for it. Immigrants without counsel are also far less likely to pursue relief. And, if they do pursue relief, they are less likely than those with counsel to prevail.