Where You Live Impacts Ability To Obtain Representation in Immigration Court

If you happen to live in Honolulu, Hawaii then the odds are good that if an Immigration and Customs Enforcement agent comes knocking at your door, you will be able to find an attorney to represent you - even an attorney who volunteers on a pro bono basis if you don't have the money to hire one. Likewise, the odds of ending up with representation is particularly high if you live in Manteca, California or in Pontiac. Michigan.

But you won't be so fortunate if you reside in Roma-Los Saenz or Huntsville, Texas, or in Coral Springs-Margate, Florida, or even in Atlanta-Decatur, Georgia. These places rank among the worst in the proportion of their residents who have found an attorney in their proceedings before the Immigration Court.

Indeed, newly obtained case-by-case court records show that depending upon the community in which the immigrant resides, the odds of obtaining representation in Immigration Court deportation proceedings varies widely. In some places in the United States the odds are 1 out of 100 of obtaining representation in cases filed in the last 90 days, and rise to only 20 out of 100 for all pending cases. In other communities your chances rise to over 82 out of a 100 of securing an attorney in recently filed cases, and climb to 98 out of 100 for all pending cases[1].

These and other findings are based upon very current case-by-case court records that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Information reflects court records as of the end of May 2017. In many respects these new data are unique. For the very first time, the public can determine the number of individuals residing in each state, county, and local community within a county, who now have pending cases before the Immigration Court. See Table 1.

The latest data show that residents in three out of every four counties in the country, and in some 11,894 places within these counties, now have residents with cases before the Immigration Court. And using TRAC's interactive web mapping application, the public also can determine the odds these residents were able to find an attorney to represent them in their court case. This information shows that where you live greatly impacts the ability to secure representation in Immigration Court.

Why Finding Representation is Important

Our Immigration Court system was established by Congress to conduct deportation proceedings and decide "whether foreign-born individuals, who are charged by the Department of Homeland Security (DHS) with violating immigration law, should be ordered removed from the United States."[2] In these court proceedings over the past five years, roughly half of individuals were ordered deported, and half were not[3].

While the government is always represented by an attorney, this is not true for the immigrant. Unlike in criminal proceedings, the federal government is not required to provide legal counsel to those without the means to hire an attorney.

Attorney availability - and especially those who specialize in immigration matters -- varies widely by location. While many immigration lawyers and law clinics attempt to provide legal assistance on a pro bono basis, their numbers are insufficient to meet the need. Recently a number of cities, including New York City, Austin, Chicago, Los Angeles, San Francisco, Seattle, and Washington, D.C., have begun providing some funding to support legal representation for those unable to afford an attorney in these proceedings. New York State recently passed legislation to provide some public funding as well, and legislation is under consideration in other states. However, communities differ whether there are these initiatives or an active pro bono bar or even a sufficient number of attorneys to handle immigration matters. Thus, the practical reality remains that individuals residing in different communities differ greatly in their ability to find an available attorney.

Few dispute the importance of having an attorney to effectively argue one's case. Representation can also lead to a number of efficiencies in the handling of court proceedings. In the first nationwide study of access to counsel in Immigration Court, TRAC Fellows and UCLA Law School scholars, Ingrid Eagly and Steven Schafer, found that only 37 percent of all immigrants (and just 14 percent of detained immigrants) obtained representation. Yet individuals who were represented had five times or greater chances of prevailing. Having representation also improved the court's efficiency in several respects in handling these cases. Earlier TRAC studies focusing on cases involving women with children as well as unaccompanied juveniles also found dramatically different outcomes based upon whether or not they were represented.

Delay in finding an attorney can in itself be deleterious. While individuals can wait for months and indeed years to have their Immigration Court cases heard, a sizable number of cases are resolved rather quickly. Over the last decade close to one million cases were decided within just 90 days of their filing. Despite the court growing backlog, this year in cases filed within the last 90 days, Immigration Court proceedings already have been completed and the case closed in 10,000 cases. And not surprisingly, unrepresented individuals were almost always ordered deported.

How Representation Rates Vary

Three states head the list of those where their residents are most likely to obtain representation: Hawaii, New Hampshire, and Mississippi. These states have relatively small numbers of pending cases, but are located in entirely different regions of the country. Hawaii had the best record on representation for both pending cases filed within the last 90 days, as well as for its entire court backlog of cases. While New Hampshire was second, Mississippi's record was very close to that of New Hampshire's. (Rankings considered both representation in the entire case backlog as well as in just recently filed cases. See Table 2.)

West Virginia, in fourth place, actually had the second highest representation rate for recently filed cases - identical to that of Mississippi. New Mexico also ranked high for representation rates for recent cases, but dropped to the bottom ten states in representation for its entire case backlog. Kansas, South Dakota, and Georgia had the worst composite records for their residents finding representation. Kansas did particularly poorly on residents with recently filed cases. Less than one in five secured representation. Only Wyoming and Delaware had worse records on this indicator. However, these two states moved up in the rankings because of higher representation rates across their entire case backlog.

California with the largest case backlog ranked 11th from the bottom on representation rates. The other two states with the largest court backlogs as well as recently filed cases were Texas, ranked 15th from the bottom on representation rates, and New York which ranked considerably better - just 18th from the top. New York would have ranked higher except for its poor representation rates in cases filed in the past 90 days - only 29.7 percent. California also did particularly poorly on recently filed cases - just one in five (20.0%) had obtained representation.

However, communities within a single state often varied considerably in their representation rates. Table 3 lists the communities with the best, and the worst representation records. (Rankings were limited to places with at least 25 pending cases filed within the past 90 days.) Three states had communities that ranked in the top 25 as well as in the bottom 25 places in the U.S. For example, Ocilla, Georgia made the top 25 list, while 6 other places in Georgia were in the 25 worst places. Kendale Lakes-Tamiami and Macclenny, Florida were in the top 25, while 5 Florida communities were shown in Table 3 as having among the worst records in the country. Texas also had communities that made both lists as best and worst. Indeed, the 25 communities that ranked the highest on the odds of finding an attorney were spread across 17 states.

Similar details for every community in the U.S. are available in TRAC's free new web mapping application.

Footnotes