Abstract

Excerpted From: Emily Ryo and Reed Humphrey, Beyond Legal Deserts: Access to Counsel for Immigrants Facing Removal, 101 North Carolina Law Review 787 (March, 2023) (177 Footnotes) (Full Document)

Removal proceedings in immigration courts have two defining characteristics. First, the stakes in removal proceedings are extraordinarily high for immigrant respondents. Justice Brandeis once wrote that deportation can result “in loss of both property and life; or of all that makes life worth living.” More recently, Immigration Judge Dana Leigh Marks noted that immigration cases “often involve[] life and death consequences,” which “amount [s] to death penalty cases [being] heard in traffic court settings.” Second, removal proceedings are marked by a deep power imbalance between the parties. Removal proceedings are highly adversarial, with government trial attorneys prosecuting noncitizens “who often lack English fluency, economic resources, and familiarity with our legal system.” A growing body of research shows that legal representation is associated with favorable legal outcomes across many stages of the removal process. Yet, most immigrants in removal proceedings do not have legal representation, as removal is considered to be a civil matter and courts have not recognized a right to government-appointed counsel for immigrants facing removal. For example, among cases that were initiated in fiscal year 2019 and resulted in a removal order, only about nineteen percent were represented, as of February 28, 2022. Advocates, policymakers, and *790 scholars have described this situation as an access-to-justice crisis or a representation crisis for immigrant communities.

The prevailing wisdom suggests that the solution to this representation crisis is more lawyers or more nonlawyer practitioners, such as accredited representatives and legal technicians, who can provide low-cost and quality legal services. The focus, therefore, has been on the ubiquity of “legal deserts,” commonly defined as areas with a shortage of lawyers, and on ways to increase the supply of legal service providers in the marketplace.

This Article presents an empirical study of legal representation that unsettles this prevailing wisdom by showing why an adequate supply of legal service providers is a necessary, but not a sufficient, condition to address the representation crisis in immigrant communities. Our study uses a new and original dataset that we compiled for the purposes of this study on immigration lawyers and non-detained immigrant respondents in removal proceedings. This dataset allows us to understand changes in the American immigration bar over *791 time. The dataset also allows us to leverage, for the first time, residential ZIP codes associated with immigrant respondents' places of residence at the time of their removal proceedings.

Our findings suggest that although the focus on the supply-side dimension of the representation crisis is important, it obscures other complex sets of barriers to obtaining legal representation that are distinct from the problem of legal deserts. Specifically, our empirical analyses show that whether a non-detained immigrant respondent obtains legal representation is predicted by where they reside, their primary language, and the size of their conational social networks, controlling for the availability of practicing immigration lawyers in close proximity to their places of residence and other potential confounders. In short, we argue that geography, language, and networks are destiny for immigrant respondents when it comes to obtaining legal representation.

To be clear, we recognize the critical importance of increasing the supply of immigration lawyers and nonlawyer practitioners to solve the representation crisis. Our own analysis presented here provides empirical support for that widely held understanding. However, our analysis also suggests that solving the representation crisis requires looking beyond the problem of legal deserts to attend to a variety of other hurdles to obtaining legal representation that are associated with certain geographical, linguistic, and social isolation in which many immigrants live. This approach to conceptualizing the representation crisis recognizes the deeply structural and social nature of this problem that is distinct from the issue of inadequate supply of legal service providers.

Unpacking the complexity of barriers that immigrants in removal proceedings face in obtaining legal representation, as we attempt to do in this Article, is an urgent task. As we document, the number of immigrants placed in removal proceedings has been increasing in recent years. And the growing masses of immigrants navigating by themselves the veritable labyrinth that is our immigration system has been described as one of the defining civil rights *792 challenges of our time. The challenge calls for innovative policy solutions. Yet, as Elinor Jordan has noted: “Only once we more precisely appreciate what is really stopping particular populations from getting legal help can we craft meaningful responses.”

This Article proceeds in three major parts. Part I provides the background context necessary to appreciate the scope of the representation crisis in immigration courts. Our discussion focuses on the rise of new removal proceedings initiated between 2004 and 2019. We then use our originally collected dataset on immigration lawyers to describe the increasing population of immigration lawyers and their changing demographics during the same time period. Part II highlights key insights from research on immigrant integration and on access to counsel that guided our selection of key predictors of legal representation that we examine in this study. This part also describes the original data collection and analyses that we conducted to empirically investigate the importance of geography, language, and social networks in obtaining legal representation. Part III presents the results of our empirical analyses. It also discusses the contributions of this study to research on access to justice and the policy implications of our findings for conceptualizing and addressing the representation crisis. Our discussion draws on insights from a rich and longstanding body of empirical research on access to healthcare, given that the problem of access to healthcare presents notably similar challenges as the problem of access to counsel. We also emphasize the importance of centering the voices and experiences of immigrants in assessing any policy proposals that seek to identify and address the barriers they might face in obtaining legal representation.

Before proceeding, it is helpful to clarify two points. First, our discussion of removal proceedings and changes in the American immigration bar focuses on the period between 2004 and 2019, as our data on immigration lawyers is limited to this period. Our investigation of the predictors of legal representation focuses on 2019, which means our analyses are not confounded by dramatic system changes and disruptions that occurred with the start of the COVID-19 pandemic in 2020. For example, immigration courts across the country experienced varying levels of court shutdowns and indefinite hearing postponements during the pandemic. Many lawyers experienced numerous challenges in maintaining their contacts with, and providing services to, their *793 clients due to state- and city-wide lockdowns. Video teleconference court hearings and remote legal services became more common. In light of these and other unprecedented changes that the pandemic has wrought, investigations of the pandemic's effect on removal proceedings warrant their own independent study.

Second, our analysis focuses only on immigrant respondents who were never detained or who had been detained but released from detention during their removal proceedings. Both practical and theoretical considerations warrant this particular focus. To our knowledge, the dataset on immigrant respondents in removal proceedings lacks information on detained immigrant respondents' places of residence before they were detained. Furthermore, detained immigrants face unique barriers to obtaining legal representation. For example, they face numerous impediments to the use of telephones inside detention facilities. The same is true of their attempts to maintain in-person contacts with individuals on the outside. In addition, many detainees lose their jobs due to their confinement, which drastically undercuts their ability to retain private counsel. Many detainees are also subject to multiple involuntary relocations throughout the duration of their confinement due to interfacility transfers. These and related considerations underscore the need for a separate and dedicated investigation of legal representation among the detained population.

Emily Ryo, Professor of Law and Sociology, University of Southern California Gould School of Law.

Reed Humphrey, Ph.D. Candidate, Evans School of Public Policy and Governance, University of Washington.