4-26-2013By Katharina Obser
Refugee Protection Program
Last week, the bipartisan Senate “Gang of Eight” introduced an immigration reform bill that included critical, long-overdue provisions that have the potential to not only improve our immigration adjudication system but also increase access to justice for thousands of immigrants in proceedings.
Why does legal representation matter in immigration court? A 2011 report on representation in New York and New Jersey showed that an individual in New York immigration courts was five times more likely to win relief with a lawyer than without. Another study identified counsel as the single biggest factor affecting the outcome of an asylum case.
Earlier this month, at Human Rights First’s Dialogues on Detention event in Washington D.C., a diverse group of lawyers, government officials, faith, civil rights, and bar association leaders stressed the critical need for legal representation in U.S. immigration proceedings. Throughout the day, two things were made clear: the right to appointed counsel for indigent and vulnerable immigrants is long overdue, and important leaders are already conceiving potential effective models and solutions.
During a panel discussion on legal representation, lawyers who assist immigrants held in remote facilities in Louisiana and Texas described the struggles they face in accessing these remote detention centers and noted the difficulties in finding attorneys willing and able to take on detained cases that require hundreds of miles of driving or several hour wait times for client meetings. They noted the additional burden that some immigration judges don’t permit limited representation, a practice that would allow lawyers to assist eligible immigrants in a bond hearing without the deterrent of having to commit to what are sometimes several-year long cases. Juan Osuna, Director of the Executive Office for Immigration Review (EOIR), expressed concern that only about 20% of detained immigrants have counsel and described the difficulties faced by overburdened courts with inadequate resources. Panelists also cited statistics that show that immigrants, especially those in detention, rarely succeed at navigating the complex legal system without the help of a lawyer.
Experts from across fields and from diverse backgrounds recognized the fundamental difference a lawyer can make for those caught up in the system. Counsel is “a basic right,” said Dr. Richard Land, the President of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. Land was a Commissioner for the U.S. Commission on International Religious Freedom at the time it issued a comprehensive report recommending reforms for asylum seekers in immigration detention. Dr. Land identified one solution to the crisis in immigrant representation as a potential, scholarship-driven “domestic legal corps.” Wade Henderson, President and CEO of the Leadership Conference for Civil and Human Rights invoked the 50 year anniversary of the landmark case Gideon v. Wainwright and said there was a “fundamental need” for immigrant counsel. And drawing on her experience as former Assistant Secretary for Immigration and Customs Enforcement (ICE), Julie Myers Wood noted the inefficiencies in the system created when a detained immigrant does not have a lawyer and called it “abominable” that under our current system, unaccompanied children or those with mental disabilities don’t have counsel.
James Silkenat, the President-Elect of the American Bar Association (ABA), also stressed the need to address the significant gap in legal representation facing detained and other immigrants, citing a 2010 American Bar Association report that extensively documented the problems with the current immigration adjudication system and made clear the “tremendous need for representation in order to achieve just outcomes” in immigration cases. Mr. Silkenat announced that one of his top priorities as ABA President over the next year will be the formation of a Legal Access Job Corps. Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit, whose leadership on access to counsel has been instrumental in bringing attention to the gap and potential solutions, has also recommended new initiatives to address the need for quality legal representation in immigration matters, including representation needs that may arise out of immigration reform.
It was heartening to see that in the long-awaited Senate immigration reform bill, the Gang of Eight Senators included provisions that would increase access to tested legal orientation presentations, facilitate access to counsel by clarifying the Attorney General’s ability to appoint counsel, and authorize appointment of counsel for particularly vulnerable individuals, such as unaccompanied children and individuals who are incompetent due to serious mental disabilities Lawmakers recognize the impact access to counsel has not only on respecting this country’s commitment to due process, but also in promoting the fairness and efficacy of the immigration adjudication system. The move reflects the clear consensus reached last Monday: we must do more to ensure access to justice for immigrants.