Key Immigration Reforms Would Increase Pro Bono Representation

By Latonia Haney Keith & Steven Schulman

As S. 744, the Senate’s comprehensive immigration reform bill, hits the floor for debate today, lawyers around the country have engaged in discussions around the various provisions that may allow pro bono attorneys to serve clients in more effective and efficient ways.

The Association of Pro Bono Counsel (APBCo), an organization with more than 120 members who lead the pro bono practices at 85 of the nation’s largest law firms, is focused on how S.744 can allow our colleagues to provide free legal services to immigrants more effectively and efficiently.

According to data from The American Lawyer, pro bono hours devoted by the top 200 grossing law firms in the U.S. has grown five-fold since 1994. But perhaps no area of the law has seen more private lawyer pro bono involvement than immigration. Lawyers at APBCo-member firms work on a variety of immigration matters, including helping refugees fleeing persecution file asylum applications, defending legal permanent residents in immigration court proceedings, and assisting abused immigrant women with applications under the Violence Against Women Act. Pro bono lawyers help change these immigrants’ lives for the better, and make the entire immigration system function more effectively.

Currently, even the most vulnerable immigrants are not appointed counsel by the government, leaving nearly half of immigrants in immigration court proceedings and around eighty percent of immigrants in immigration detention go through their proceedings with a lawyer. This includes traumatized asylum seekers seeking protection in the United States, young and unaccompanied children, those with severe mental disabilities or other extremely vulnerable populations left to navigate our complex immigration laws and court proceedings on their own.

Several provisions of S.744 would change that law in ways that will allow our colleagues to serve these pro bono clients in more effective and efficient ways.

Section 3401 would remove the bar on asylum applications filed more than one year after a refugee enters the United States.

• This provision will increase the availability of pro bono services provided by APBCo member firms, as litigating filing deadline issues can consume tremendous amounts of pro bono resources that could be better spent on substantive issues.
• It would prevent refugees with legitimate asylum requests from being denied asylum, and would prevent cases that could be more efficiently resolved at the asylum office from being sent to immigration court removal proceedings, which waste precious pro bono resources and limits the pool of volunteers to those lawyers who are comfortable in trial court (many pro bono immigration lawyers do not practice litigation, but rather are experts in other fields, like corporate transactional law).

Section 3404 would allow arriving aliens – those who appear at our borders – to seek asylum via a non-adversarial interview rather than be forced to claim asylum in a removal proceeding in immigration court.

• Forcing immigrants into immigration court wastes resources and limits the pool of lawyers willing to take these cases pro bono.  In our members’ experience, Asylum Office interviews are resolved more quickly and require far fewer attorney hours than contested immigration court proceedings.
• Section 3404 will allow pro bono attorneys to represent more asylum-seekers than they would otherwise.

Section 3501 would increase the number of immigration judges and support staff, thereby improving immigrants’ access to pro bono counsel by reducing the current backlog in some immigration courts.

• In New York City, for example, backlogs are forcing the immigration court to schedule asylum hearings for 2016, making these cases difficult to place with pro bono counsel, as they are typically wary of volunteering for a matter that will not be heard for several years.

Section 3502 would require the Attorney General to appoint counsel for unaccompanied minors and individuals with serious mental disabilities.

• This provision will allow pro bono lawyers to focus on those cases that are more appropriate for attorneys who are not experts in dealing with these populations.
• While pro bono lawyers do on occasion represent these vulnerable populations, cases of this sort can consume disproportionate resources and are typically better handled by lawyers specifically trained in the challenges presented by this population of clients.

Section 3503 would expand Legal Orientation Programs to all immigration detention centers (LOPs currently reach only 25 immigration detention facilities).

• LOPs are a critical mechanism through which local legal service providers may identify an individual who would benefit from a referral to a pro bono lawyer to assist with their case.

Coons Amendment 5, which was adopted by voice vote in the Judiciary Committee, would require the Department of Homeland Security to provide essential documents to immigrants without first filing a Freedom of Information Act (FOIA) request.

• This reform will streamline proceedings and eliminate wasteful filings, speeding up proceedings and allowing pro bono lawyers to focus on the case at hand rather than chasing documents.

Lawyers at Association of Pro Bono Counsel-member firms are committed to providing free legal services to immigrants in need. S.744 will allow them to serve these pro bono clients better, and to serve more immigrants who need help navigating a complex system.

Latonia Haney Keith is the President of the Association of Pro Bono Counsel and the Pro Bono Counsel at McDermott Will & Emery in Chicago.

Steven Schulman is the President-Elect of APBCo and is the Pro Bono Partner at Akin Gump Strauss Hauer & Feld in Washington, D.C.