Immigrants Received Legal Help in Court 23,516 Times in First Year and a Half of New Rule

Published Jun 21, 2024

A new policy that allows immigration attorneys to provide legal assistance to immigrants facing deportation in Immigration Court without taking on the responsibility of the entire case has seen tremendous growth since its implementation in 2022. Since November 14, 2022, through the end of May 2024, immigration attorneys and other designated legal specialists[1] have assisted pro se immigrants 23,516 times, as recorded by new E-60 and E-61 forms they are required to file. As shown in Figure 1, these numbers have seen steady monthly growth and reached a high of 2,488 new pro se immigrants being added to this limited legal assistance initiative in May 2024.

This report explains the importance of this new program in the context of an overwhelmed Immigration Court and provides a first look at case-by-case records based on new data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) as the result of its submission of a steady stream of new Freedom of Information Act (FOIA) requests.

Expanding Legal Assistance Through Limited Legal Assistance

As TRAC has reported on many times, legal representation is a determining factor in the efficiency, due process, and outcomes of removal proceedings in which immigrants are facing deportation in Immigration Court. With immigration judges across the country facing an unprecedented 3.7 million pending cases on their dockets, a natural question arises: will immigration attorneys also be able to keep up with these cases? According to the latest data, no. Although legal representation increased substantially for many years, TRAC recently found that average representation rates declined dramatically from 65 percent to 30 percent over the past five years and have continued to fall. As of the end of May 2024 only 29 percent of immigrants in pending cases are represented. This means that more immigrants are showing up to Court as pro se respondents—i.e., without an attorney.

One often-overlooked barrier to expanding legal assistance to immigrants is the burden on individual attorneys themselves when they take on a case. When attorneys take on a client, they are required to officially enter an appearance in Court via filing a form E-28 for appearance in Immigration Court and an E-27 for appearances before the Board of Immigration Appeals (BIA), the appellate body above immigration judges.[2] However, filing an E-28 puts the attorney on the hook for the entire case and may limit attorney’s ability to provide one-off assistance to the growing number of immigrants in Court with needs such as filing applications for relief that would allow them to stay in the country or helping people fill out other routine yet confusing documents. Importantly, providing legal assistance but not documenting that assistance with the Court can land attorneys in hot water.[3]

A new rule that went into effect on November 14, 2022[4], attempts to address this “all or nothing” approach to providing legal assistance by creating the option for attorneys to file a limited appearance notice with the Court. Under this rule, attorneys and other approved practitioners (such as BIA-accredited representatives) may assist pro se immigrants with document preparation without taking on the entire case. The only catch is that the attorney must notify the Court of their assistance on a form that immigrants include when they submit paperwork to the Court. Like E-28s and E-27s, the new E-61 is used for BIA filings and the new E-60 is used for Immigration Court filings. Thus, the 23,516 filings of E-60s/E-61s in Figure 1 above represent 23,516 concrete situations in which the immigrant respondent likely would not have received any legal assistance whatsoever were it not for this new rule.

Although the data in this report represent only a very specific aspect of the Immigration Courts—that of attorneys helping immigrants fill out and file legal documents—these initial findings speak to a more fundamental question about the future of the Immigration Courts. After all, legal assistance, even just with document preparation, not only helps immigrants—it helps the Court, as well. When immigrants without legal assistance file (or attempt to file) documents that are incomplete, inaccurate, not fully developed, or otherwise fail to conform to the often localized conventions of the Immigration Court, it not only hurts immigrants, but it also taxes the time and resources of an already overwhelmed Immigration Court system. Thus, expanding limited legal assistance, as well as evaluating its effectiveness over time, is fundamental to how the Courts will both fairly and efficiently manage its enormous backlog.

Data on Limited Legal Assistance Show Growing Interest in Program

As part of this first look at data on limited legal appearance, this report examines how often attorneys have taken up this new option for providing document help. Figure 1 above shows considerable overall growth in the number of times that the Court has received E-60s and E-61s each month, indicating both growing awareness and growing participation in this new option over the past year and a half.

In addition to growing totals of E-60s/E-61s, the data also show that more attorneys are getting involved, as recorded by the number of individual attorney identification numbers are reflected in the data on limited appearance.[5] In the first full month after the rule went into effect, just under 200 separate attorneys submitted E-60s/E-61s, with an average of 2.7 appearances entered per attorney. Since then, the number of attorneys has grown to over 700 in May 2024, the latest full month for which data is available. Moreover, the rate of these filings per attorney on average has increased to between 3.0 and 3.6 in recent months. Figure 2 below shows the total number of attorneys participating per month and the average rate of appearances entered per attorney for that month.

Attorneys are required to identify the type of assistance they provide to immigrants on each E-60/E-61. The most common type of document assistance that attorneys provided to pro se respondents was listed as applications, at 63 percent of all types of assistance listed on E-60 and E-61 forms. In second place were “motions” at 27 percent, in third place were “other document support” at 7 percent, and, in smaller amounts, appeals made up two (2) percent while briefs made up one (1) percent. Application assistance is specific to filings in Immigration Courts while assistance marked as appeals are specific to filings with the Board of Immigration Appeals (BIA). The other three types of assistance—briefs, motions, and other document assistance—may apply to filings with Immigration Courts or the BIA. Figure 3 and Table 2 show the breakdown of all types of limited legal assistance registered by the Courts from the start of the policy on November 14, 2022, through the end of May 2024.

Note that since a single form may capture up to five types of assistance provided, the total types of assistance provided in Figure 3 is larger than the total forms filed. The vast majority of forms filed—about 91 percent or 21,140 total—included only one type of assistance. In about 8 percent (1,846) of the forms filed, attorneys designated two types of assistance provided. In only 183 cases did attorneys mark that they provided three types of assistance and in just 47 cases attorneys marked four types of assistance provided—both less than one percent of the total.

These data represent the first look at the substantive outcome of a longstanding legal dispute between the Northwest Immigrant Rights Project (NWIRP) and the Department of Justice (DOJ), which oversees the Immigration Courts in NWIRP and Yuk Man Maggie Cheng v. Sessions, III, et al. The case arose in 2017 when the EOIR sought to prevent NWIRP’s staff from assisting immigrants in removal proceedings unless they filed a full notice of appearance (i.e., an E-27 or E-28). In effect, the EOIR claimed that attorneys had to choose between two options: provide no assistance at all or take on the responsibility of the entire case. The judge in the case ruled that the EOIR’s attempts to police immigration attorneys’ work in this way was unlawful.

In 2019, in part as a response to this lawsuit, the EOIR proposed a policy change that would allow attorneys to enter a notice of limited appearance when they assisted pro se respondents with document preparation but nothing more. This in-between option allows attorneys to register their assistance with the Court without being compelled to take on the entire case. Thus was born the E-60 form for limited representation before the Board of Immigration Appeals (BIA) and the E-60 form for limited representation in Immigration Court. Critics of the new policy may claim that even this form is an unlawful hurdle to providing assistance.