Research has long shown that access to a lawyer is one of the most important factors that determines whether an immigrant in removal proceedings will be able to remain in the United States. A new policy from the Biden administration is aimed to increase access to counsel by making it easier for pro bono lawyers to take cases in immigration court.

Pro bono representation is good for immigrants and immigration courts alike, the Department of Justice (DOJ) recognizes in a newly issued memo. While calling the work of pro bono attorneys, legal service providers, and law school clinics “an invaluable public service,” DOJ urges immigration judges and court staff to accommodate and facilitate pro bono representation as much as possible.

The memo provides a list of ways for immigration courts to help make pro bono representation easier, including:

  • Creating a pro bono committee at each immigration court comprised of immigration judges and other staff that will regularly meet with local pro bono legal service providers to discuss how to improve the level and quality of pro bono representation.
  • Encouraging immigration judges to play an active role in pro bono training programs.
  • Urging immigration judges to exercise flexibility in scheduling hearings when attorneys are appearing pro bono.
  • Allowing pro bono attorneys to be first in line to have their cases heard at master calendar hearings.
  • Telling immigration judges to be flexible when a pro bono attorney wishes to participate in an immigration court hearing over the phone or on video rather than in person.

Critically, the memo also instructs immigration judges to encourage discussions between pro bono representatives and Department of Homeland Security (DHS) attorneys who represent the U.S. government and can argue for an individual’s deportation.

Conversations between an immigrant’s attorney and DHS’s attorney that occur prior to court hearings can help narrow the issues in dispute early in the process. But many immigration representatives have found it challenging to connect with DHS attorneys for substantive pre-hearing conversation. As a result, attorney time and resources may be wasted as representatives are left guessing what issues DHS will raise in court. If DHS follows the memo’s suggestions, this could be an important change for pro bono representation and should be adopted more broadly.

The DOJ memo comes at a time when access to lawyers is scarce in immigration court. Although slightly more than half of people in immigration court have legal representation, over 660,000 people facing deportation are currently unrepresented.  of all immigrants have legal representation in their cases.  For individuals in immigration detention, the picture is even darker, with only 29% of current detained immigrants in court proceedings having legal representation. DOJ actions that make pro bono representation easier may help improve these numbers.

The memo is good news for immigrants whose cases are pending in areas with pro bono services. But it does not address locations where local services are incredibly limited or non-existent, such as the courts that hear cases from immigrants held in remote detention centers. In these locations, immigration courts will not have local service providers to regularly meet with to discuss pro bono representation.

Until the U.S. government stops detaining immigrants in remotely located facilities far away from legal service providers, due process concerns will persist in these cases. Immigrants will have little chance of obtaining representation, pro bono or otherwise. DOJ should likewise focus on expanding access to counsel across the board.