Featured Issue: Ensuring Legal Representation for People Facing Removal

Despite the critical role legal representation plays in ensuring fairness in removal proceedings, the law still does not guarantee the government will pay for counsel if the person is unable to afford one. According to a 2016 study by the American Immigration Council, people were five times more likely to obtain legal relief if they were represented by counsel and people who were detained were ten-and-a-half times more likely to succeed. In the absence of a universal right to counsel, a significant portion of people in removal proceedings—at least 40 percent—are unrepresented by counsel.

Despite the critical role legal representation plays in ensuring fairness in removal proceedings, the law still does not guarantee the government will pay for counsel if the person is unable to afford one. According to a 2016 study by the American Immigration Council, people were five times more likely to obtain legal relief if they were represented by counsel and people who were detained were ten-and-a-half times more likely to succeed. In the absence of a universal right to counsel, a significant portion of people in removal proceedings—at least 40 percent—are unrepresented by counsel.

AILA calls upon President Biden and Congress to increase federal funding to expand legal representation for people in removal proceedings.

Government Announcements

• Attorney General Issues Memo on Access to Justice - May 18, 2021
  • Attorney General Garland issued a memo reinvigorating DOJ's Office for Access to Justice and announcing a process to develop a plan for expanding DOJ's role in leading access-to-justice policy initiatives, including on how DOJ and partners can address barriers to access in the immigration systems.
• Presidential Memorandum on Restoring DOJ’s Access-to-Justice Function and Reinvigorating the White House Legal Aid Interagency Roundtable - May 18, 2021
  • President Biden issued a memorandum directing the Attorney General to “consider expanding DOJ’s planning, development, and coordination of access-to-justice policy initiatives,” and reinvigorating the White House Legal Aid Interagency Roundtable (LAIR) geared toward improving access to justice.
  • White House Fact Sheet: President Biden to Sign Presidential Memorandum to Expand Access to Legal Representation and the Courts – May 18, 2021

Advocacy Resources

• Polling conducted by Hart Research in October 2021 finds overwhelming public support for legal representation of unaccompanied children
  
• Representatives Urge Attorney General to Reverse Trump’s Attacks on Immigrants
  
  • On 6/10/21, Representative Pramila Jayapal (D-WA) led 60 lawmakers in calling on DOJ to immediately implement a set of reforms on immigration court backlogs, regulatory and policy review, EOIR personnel, legal representation, criminal prosecutions, and the ongoing pandemic.
• Policy Brief: The Biden Administration and Congress Must Guarantee Legal Representation for People Facing Removal – January 15, 2021
  
  • AILA and the American Immigration Council issued a policy brief calling upon the Biden administration to expand federally-funded legal representation programs for people facing removal, arguing that legal representation ensures due process and efficiency, reduces the detention of immigrants, and reduces court backlog.
• American Immigration Council: Access to Counsel in Immigration Court – September 2016
  
  • This report presents the results of the first national study of access to counsel in U.S. immigration courts. Drawing on data from over 1.2 million deportation cases decided between 2007 and 2012, the report provides information about the scope and impact of attorney representation in U.S. immigration courts.
• Senate Bill: Funding Attorneys for Indigent Removal (FAIR) Proceedings Act – March 23, 2021
  
  • AILA urges Congress to pass the FAIR Act sponsored by Sen Kirsten Gillibrand (D-NY). The act would guarantee access to legal counsel during removal proceedings for children, individuals with disabilities, victims of abuse, torture, and violence, and those living at or below 200 percent of the federal poverty line.
• National Association of Immigration Judges: NAIJ Position on Legal Representation in Immigration Court – May 5, 2021
  
  • The NAIJ endorses efforts to provide greater access to representation and for free legal services to those appearing before the immigration court, especially for vulnerable populations such as the mentally impaired or juveniles, as well as for detainees.

Funding for Legal Representation

• AILA and Partners Urge Congress to Provide Funding for Appointed Counsel for Individuals Facing Removal – November 17, 2021
  
  • AILA and the American Immigration Council led a sign-on letter urging Congress to provide robust funding for appointed counsel for indigent individuals facing removal. The letter was joined by 118 bar associations and immigration, civil rights, human rights, and service organizations specializing in providing legal representation to immigrants.
• Senators Request $200 Million for Services Within EOIR to Provide Legal Representation to Vulnerable Individuals and $300 Million in Funding for Legal Services for Unaccompanied Children – May 6, 2021
  
  • Twenty senators sent a letter to the Senate Subcommittee on Appropriations for Commerce, Justice, Science, and Related Agencies requesting that $200 million be appropriated to DOJ for legal services within EOIR to provide legal representation to vulnerable populations. In addition, 21 senators sent a letter to the Senate Subcommittee on Appropriations for Labor, Health and Human Services, Education, and Related Agencies requesting no less than $300 million in funding for legal services for unaccompanied children through the Office of Refugee Resettlement (ORR).
  • El Diario: Senadores presionan por $500 millones para ayudar a niños y otros inmigrantes – May 6, 2021
    
    • El Diario reports on the letters from senators urging increased funding for legal representation.
• Members of Congress Send Letter Supporting Funding for Providing Legal Representation to Individuals in Removal Proceedings – April 28, 2021
  
  • Forty-eight House representatives, led by Congresswoman Norma Torres (D-CA), sent a letter to the House Committee on Appropriations to support funding to expand federal programs that provide legal representation for individuals facing federal immigration court removal proceedings.
  • The Hill: House Democrats Call for Paid Legal Representation in Immigration Court – May 3, 2021
• Elected Officials from California Urge President Biden to Expand Federally Funded Legal Representation Programs – April 15, 2021
  
  • Twenty-nine California state senators and assembly members sent a letter to President Biden urging the expansion of federal programs and funding to provide legal representation and related services for individuals who face federal immigration court removal proceedings without the advice of counsel.

Cite as AILA Doc. No. 21050438.