OPINION: Those in Immigration Court Should Be Provided Legal Assistance Regardless of Ability to Pay

by Olivia M. Scofield

It’s a common scene in any episode of Law & Order: the detective puts the suspect’s wrists in handcuffs while reciting: “You have the right to remain silent, anything you do or say can be used against you in a court of law; you have the right to an attorney, if you cannot afford an attorney, one will be provided to you.” (Emphasis mine.) The recognizable “DUN DUN” then gongs as the show goes to a commercial break. It’d be natural to assume, then, that people in all kinds of legal proceedings should have an attorney provided to them, regardless of their ability to pay. In immigration court, however, this is not always the case, as a recent ruling by the 9th Circuit Court of Appeals made clear.

The Sixth Amendment of the US Constitution gives criminal defendants the right to have a lawyer assist in their defense, even if unable to pay. This right applies in federal prosecutions and, since 1963, also applies to state prosecutions (although it does not apply to the prosecution of certain misdemeanors). While the Fifth Amendment and other laws have been interpreted so that noncitizens do have a right to counsel in immigration court, generally, it is on the noncitizen to pay for such legal expenses. Because immigration law is notoriously complex, the immigration court and removal system can be confusing and bureaucratic, and there are potentially critical and life-changing consequences that may come out of immigration court, I believe that noncitizens should be provided legal counsel in immigration court, even if they cannot afford it.

One common argument against the applicability of the Sixth Amendment in immigration court (and therefore against government-funded legal assistance) is that technically proceedings in immigration court are of a civil nature, and the Sixth Amendment is concerned with criminal law. But consider one rationale for government-assisted attorney representation for indigent defendants: the concern for criminal defendants and the ability of a powerful government to take away life, liberty, and property without due process as required under the Fifth Amendment. The potential consequences of immigration court can be extremely serious for noncitizens in that they may be removed from the United States. Depending on the noncitizen’s situation, this may mean removing them from their family, their job, their home, and the opportunities and safety that come from simply being in the United States.

Moreover, even before their case is decided, the noncitizen may be subject to detention while their case is being processed. Despite the alleged civil nature of immigration proceedings, detention is similar to criminal incarceration in many ways—detainees are sent to an Immigration and Customs Enforcement (ICE) detention center, which can be hundreds of miles away from their home; detainees’ movement and freedom are limited to the jail-like detention center and the restrictions therein; and detainees are removed from work and family while they wait for their day in court or their fate is otherwise decided. (In fact, sometimes immigration court proceedings are conducted in these remote detention centers, even via video conference/satellite with an immigration judge.) The presence of legal counsel might mean that the noncitizen is able to receive a bond hearing in the first place. (Indeed, the American Immigration Council is challenging the practice of immigration court judges refusing to conduct bond hearings. One wonders whether this allegedly illegal practice might not be so rampant if it were customary for all those facing detention to have the assistance of legal counsel?) The findings are clear: noncitizens are four times more likely to be released from detention when represented by an attorney.

Studies show that access to legal counsel significantly improves noncitizens’ chances in immigration proceedings. A 2015 study showed that access to counsel makes it ten times more likely for a detained immigrant to obtain legal residency than those without legal counsel, and according to that same study, only fourteen percent of immigrants in detention are able to secure representation during deportation proceedings. A 2017 study found that up to twelve times as many immigrants have been able to obtain favorable results in deportation proceedings (either receiving legal relief from deportation or essentially dropping the case) when guaranteed legal representation. In this study of the Varick Street immigration court in New York, where legal representation was guaranteed for detained immigrants through non-profit funding, twenty-four percent of detained immigrants won their cases with the assistance of legal representation, compared to only four percent of those who won without lawyers. Based on a model developed by the study researchers, seventy-seven percent of cases still pending at the end of the study period were likely to be successful in court. 

These studies show that those in immigration court often have valid claims under immigration law for status or relief that are simply not being heard due to the absence of legal representation. To a noncitizen who may have a legitimate asylum, trafficking, VAWA, withholding of removal, or other claim, but who doesn’t have the training, education, or language skills to understand, articulate, and argue this in a court of law, having an attorney can be a lifeline. (In the cases of children especially, it is absurd to expect them to act as their own counsel in these complicated legal proceedings.) In a society where we cherish the right to safety from undue interference with our life, liberty, and property, there should be some provided legal assistance when the government initiates proceedings that could lead to the loss of those valued rights.

Another argument against legally mandated access to counsel in immigration court cases is that a noncitizen’s ability to enter and remain in the US is a benefit, not a right. Why then should the government have to guarantee funding to dispute their own determination on these matters? The US government undeniably has the authority to make and enforce immigration laws, including determining who may enter and remain in the United States. It is therefore much more palatable to require noncitizens submitting affirmative applications to the government or who are applying for visas at consular posts abroad to be responsible for acquiring and paying for the necessary legal counsel. But once a person has entered the United States, they should and do have certain basic constitutional protections. Therefore, when the government brings an action that implicates the right to due process (such as removal proceedings) against a person already in the United States, there should be a mechanism in place to assist in that person’s defense.

Last year New York created the first statewide immigrant-defense fund, and other cities—including Seattle, Los Angeles, San Francisco, Chicago, Washington, D.C., and Austin—have also designated or used public funds to provide legal counsel in immigration courts. I believe this could be a model for the rest of the country to follow. In the end, it is up to Congress to enact nationwide laws that require counsel to be provided in immigration courts. Many immigrants who are in immigration court proceedings here in the US are escaping extreme poverty, violence, abuse, and other horrific situations in their home country. It is the right and just thing to provide all these individuals with legal counsel.