Think Immigration: Protect Due Process for Immigrants who Cannot Represent Themselves in Court: It Just Makes Cents

Following a recent court order, the U.S. government has resumed fully funding the “National Qualified Representative Program” (NQRP), a formal Department of Homeland Security (DHS) and Department of Justice (DOJ) policy which provides legal counsel to particularly vulnerable detained immigrants, who cannot competently represent themselves in immigration court. Since 2013, the NQRP has assured due process and made the immigration courts run more efficiently, but unfortunately became one of the many ironic casualties of DOGE government cuts purportedly to make things more efficient and less wasteful. A federal judge found that change in government policy to be “arbitrary and capricious,” further noting that the executive branch had conceded the point. With NQRP funding restored for only the next year it is critical to understand the purpose and impact of the program, so it can be recognized and protected. This moment of reprieve also underscores the need for a more secure, legislative foundation for the program which, at present, is only protected by a District Court order.

Fifteen years ago, for the first time, a judge ordered the federal government to provide representation for two detained immigrants in their “deportation” cases before the immigration court. This step was unprecedented, because while immigrants have a right to be represented, unlike in the criminal court system, they don’t have a right to be provided an attorney at government expense. The two detained immigrants at issue presented such profound mental health conditions that it was impossible for them to represent themselves. I agreed to co-represent – pro bono, i.e. for free - one of the two, a homeless refugee client whom the judge noted to present “very active and pronounced psychotic disorder, schizophrenia of the paranoid type ... frequent auditory hallucinations .... [and] psychosis … that prevented him from expressing himself,” a condition so profound that he had years earlier been voluntarily committed to a treatment facility. In this test case, we effectively lost our client’s case for bond, with the immigration judge setting a bond amount that was prohibitively high, given his life circumstances.

What was affirmed in those cases was that attorneys’ management and advocacy of these special cases – presenting evidence, expert materials, testimony, and argument - is helpful for justice. It is also very helpful for the bottom line. Why? 1) Detaining people is expensive (at least $152 daily, per detainee), but detaining similar particularly vulnerable immigrants is very expensive; and 2) court cases (which sometimes can languish for years, even in the detained setting) move much faster in the hands of a defense attorney than when a mentally ill immigrant attempts to represent themself. I took the case because I thought it was valuable to see if a system of appointed attorneys might help, even if the pro bono model (of volunteers like myself, rather than a funded model) was unsustainable over the long term. Through our advocacy, the client did not immediately win his freedom, but his case was part of an important moment.

Soon thereafter, the Board of Immigration Appeals – the appellate “court” for immigration matters within the Department of Justice – issued the first in a line of cases explaining standards and safeguards for immigration court cases of noncitizens deemed unable to represent themselves. Immigrants didn’t “win” that much more under those standards, because - regardless of competency - the factual basis for a non-citizen’s removal often is simple to prove (e.g. they lack a visa, overstayed an authorized time in the U.S., or committed a deportable offense), but the court had to first affirm the noncitizen’s understanding of the purpose of the proceedings, and take steps to facilitate the case, often in the form of permitting a “friend of the court” (a non-attorney relative, friend, caretaker) to actively participate and engage with the judge. Cases for “relief” were much more complicated, as vulnerable non-citizens faced inevitable challenges in proving that they merited favorable discretion or faced likely future persecution in their country of origin if deported. Without assistance of defense counsel, judges faced with crushing case backlogs can’t shoulder the responsibility of facilitating fair hearings without investing an inordinate amount of time themselves exploring an incompetent noncitizen’s case.

Thus, the government realized that investing in due process provided tangible returns and made the NQRP part of formal DHS and DOJ policy. The caseload of the NQRP is modest in real numbers, just over two thousand over the last twelve years, with fewer than 900 open cases at the time funding was cut in early 2025, but each represented case was a realization of the American promise of a system of laws and due process.

Fall 2025 sees us now in a country which, until recently, proudly proclaimed itself a nation of immigrants. By the narrowest of margins, Congress has authorized hundreds of billions for immigration detention and enforcement, under the pretext of countering criminality (although there’s a large body of academic research showing that there’s no connection between immigration and crime rates on top of the fact that those who do commit crimes are already subject to deportability and mandatory immigration detention under existing laws) and contrary to the needs of industry and our general economic self-interest. The Supreme Court is permitting this enforcement to include deportation of immigrants to harsh, dangerous foreign prisons or war-torn places to which they have no ties.

Against this factual backdrop, the accompanying rhetoric, and military on the city streets of our heretofore free society, it is perhaps quaint to invoke principles, even those enshrined in the constitution, but due process matters, even – especially – for unpopular groups and even more so for vulnerable ones such as the mentally disabled. Due process ensures that the awesome power of justice is meted out appropriately, including the power of a country to remove a person from its territory. In this context, principle converges with practicality, as investment in representation produces efficiency.

The recent court order rejected the way in which NQRP met its demise. The administration has, thus far, complied with the court’s order to continue fully funding NQRP, through its major stakeholders, who have an established track record of implementing services for the target recipients nationwide. There was no financial reason not to pursue the principled path. Now that it is restored, funding for the National Qualified Representative Program must be permanently protected, and Congress should move to enact legislation on its behalf.

Michael Vastine
Visiting Professor of Law, Stetson University College of Law
Academic Advisory Board, Acacia Center for Justice