More judges alone won’t be sufficient. There is another serious shortage: too few immigration attorneys. As a result, the proportion of immigrants able to find an attorney to represent them in removal proceedings has dropped precipitously. Five years ago, noncitizens had found attorneys in 65 percent of all pending cases in the Court’s backlog. Today, this proportion has dropped to just 30 percent. Yet immigration attorneys are an important ingredient for assuring efficient, not just fair, court proceedings since attorneys play a vital role in alleviating a variety of administrative delays and facilitating a more functional legal process. If an immigrant cannot afford an attorney, the civil Immigration Court system does not provide one as the criminal courts do for indigent defendants.

In fact, skilled immigration attorneys are needed to present the evidence and arguments on both sides. Presenting the government’s case is the responsibility of attorneys employed by Immigration and Custom Enforcement (ICE). Recently, citing budget constraints leading to an attorney shortage, ICE has adopted the practice of not sending an attorney to many hearings. Yet the agency may seek to reserve its right to appeal if ICE doesn’t like the decision the Court reaches in their absence, an end result which only adds to the burdens faced by the Court and the immigrant in the case.

There is vast variation in representation rates across Courts headquartered in different states. In the current backlog, representation rates ranged from a high of 56 percent in Hawaii down to a low of just 14 percent in Courts based in Colorado.