Despite Efforts to Provide Pro Bono Representation, Growth Is Failing To Meet Exploding Demands

Published May 12, 2023

The availability of pro bono legal representation has grown for noncitizens with cases before the Immigration Court. It is, in part, a remarkable story of the increase of volunteer efforts across this country given the importance of legal representation to immigration outcomes.[1] But despite this growth, volunteer efforts have not been able to meet the needs of immigrants in the growing Court backlog. This is particularly true now that Court cases have reached all-time highs during the Biden administration, causing the odds of finding pro bono help to plummet. See Figure 1.

Documenting these trends is now possible for the first time with newly released case-by-case court records that show pro bono representation through the years. These detailed records were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC). This report provides an initial overview of just how many cases are now being represented by pro bono attorneys, and how these numbers have changed over time. Given the importance of understanding the trends and impact of pro bono representation as well as the complexity of the data, TRAC is currently seeking funding to support in-depth reporting and online query tools digging deeper into this new data resource.

Tracing the Initial Success of Efforts to Increase Pro Bono Representation for Vulnerable Populations

Individuals appearing before the Immigration Court have a right to obtain their own attorney, but unlike in the criminal legal system, if they do not have the resources to hire one, the government does not provide them with their own attorney. According to Immigration Ccurt records, in 2000, just 55 court cases were recorded as completed with pro bono representation. Ten years later, in 2010, this had grown nationwide to just 149 cases. Amid the growing workload of the court during this period, the percent of noncitizens securing pro bono assistance remained a minuscule fraction of just over 5 out of every 10,000 cases.

Then, beginning in 2012, a wave of unaccompanied children seeking sanctuary began arriving along the U.S.-Mexico border.[2] The image of young children appearing alone in this adversarial court forum and being asked to defend themselves alone galvanized widespread public concern.

Organized efforts by immigrant rights groups, attorney associations, NGOs and local communities to provide pro bono representation for these children, as well as for young mothers[3] arriving with children seeking asylum, picked up steam. In some parts of the country these volunteer efforts were bolstered with funds from governmental bodies.

By 2015, completed pro bono represented cases had jumped to 1,894 and one year later in 2016 it was over twice that (3,859). It doubled again by 2019 reaching 8,054 cases completed with the help of pro bono attorneys.

These numbers may not capture the full picture of pro bono work that attorneys do, since they only involve cases in which an appearance was entered. For instance, in some courts, attorneys can provide guidance to immigrants in court using a “friend of the court” appearance rather than taking on the respondent as a client.

The Changing Landscape Presents New Challenges

The onset of the COVID-19 pandemic and steps taken to slow its spread, also had an impact on this volunteer movement. While the number of completed cases with pro bono representation did not drop, their numbers ceased to increase. Immigration Court cases completed with pro bono representation stayed at around 8,000 each year from FY 2019 through FY 2021.

As society began returning to more normalcy, a new wave of individuals seeking refuge in this country began arriving. Efforts to provide pro bono services redoubled and an increasing number of attorneys stepped forward to volunteer their services on a pro bono basis. FY 2022 ended with a record number of completed cases – some 13,400 -- with pro bono attorneys. Recently, this growth in numbers appears to have stalled. During FY 2023 pro bono representation ceased to grow. As of April 2023, numbers have matched the pace during FY 2022 but have not climbed further.

Plummeting Odds of Finding Volunteer Representation

The failure of the supply of volunteer attorneys to keep up with a growing demand has had a serious impact on the odds asylum seekers and others have been able to find pro bono representation.

The push under the Biden administration to grow the capacity of the Immigration Court to get its backlog under control, increased the number and speed with which cases were heard. The odds of someone finding pro bono help with their case has plummeted as a result. From its peak of nearly 5 percent in FY 2021, in less than 20 months the odds of finding a volunteer attorney has fallen by more than half.

Today the failure of the supply of pro bono legal representation to match this growing demand means the odds of noncitizens seeking asylum or other forms of relief finding a volunteer attorney has plummeted to just 2 percent.

The End Result

As of the end of April 2023, over three out of four persons ordered removed this fiscal year by Immigration Judges had no representation, and just 0.8% -- that is only 8 out of 1,000 -- had been able to find a volunteer attorney to represent them. See Table 1. Without the help of a skilled immigration attorney, fewer immigrants are able to prepare asylum applications or other materials required to get their claims even heard.