Immigrants are now far more likely to face the complexities of the immigration court system alone, without an attorney. As of December 2023, only 30% of immigrants with pending cases have secured representation, down from 65% just four years ago.
This new data comes from Syracuse University’s Transactional Records Access Clearinghouse (TRAC). On January 24, TRAC published data showing that representation rates at U.S. immigration courts have decreased significantly. These trends highlight concerns about migrants’ ability to obtain an attorney to navigate our immigration system.
Federal law generally provides immigrants the right to secure legal representation before federal immigration agencies, but immigrants must front the cost—or secure the assistance of a pro bono attorney. The assistance of an attorney can be crucial to succeeding in one’s case. For example, in removal proceedings, immigrants not subject to immigration detention are five times more likely to obtain relief if they are represented. Attorneys also contribute to efficiencies in removal proceedings, including fewer hearings and more successful claims.
Cases before the immigration courts have grown substantially in the last decade. In 2013, there were 344,230 pending cases. Now the backlog stands at more than 3.2 million. This is the result of myriad policy shifts and changes across the years, including limited resources and staffing; increased immigration enforcement; limitations on immigration judges’ abilities to manage their dockets; and reduced hearings during the pandemic. Recently, however, as migrant arrivals increase, a dramatic increase in newly filed cases during the past year—nearly 1.5 million—are causing concern about whether the supply of immigration attorneys can meet the current demand by asylum seekers.
This growth in the backlog is particularly important to Democrat-led cities and states like Maine, New York, Illinois, Massachusetts, and Colorado, which have seen an increase in recently arrived migrants needing shelter and other assistance. For the past year, mayors and governors have requested additional funding and coordination from the federal government. The Biden administration has taken steps to accelerate work permit processing for these noncitizens but has largely been unable to do more without additional resources from Congress.
In October 2023, President Biden requested $14 billion in supplemental funding for the immigration system, including $1.4 billion to fund nonprofits and local and state governments supporting newly arrived migrants and funding to hire 375 new immigration judges. However, that request is currently mired in Senate negotiations about border policy changes and funding related to armed conflicts in Ukraine and Israel.
Since the end of Title 42—a public health law used to immediately expel migrants at the border during the pandemic—all migrants are processed under Title 8 (immigration law). This requires each migrant to be processed either under a fast-track deportation process known as expedited removal or under the regular immigration court process. Because there are insufficient asylum officers to screen most migrants under the expedited removal process, the majority of people crossing the border are released with a notice to appear in immigration court.
Once released, many recently arrived migrants will likely seek asylum; however, many need legal help to figure out how to do that. An additional 1 million migrants have arrived under various parole programs established by the Biden administration to disincentivize migrants from traveling to the border. These individuals are immediately eligible to apply for a work permit, but, given the temporary nature of parole, will have to look for a more permanent form of relief if they plan to stay in the United States and may need the help of an immigration attorney to do so.
Currently, the burden to provide legal services to low-income immigrants is largely falling on civil society and local and state governments. About 40 states and localities have invested in legal representation programs for immigrants. However, many of their services are limited to those who are in removal proceedings, in detention, or unaccompanied minors or who have been determined to have mental competency issues.
New York, which has had a public defender program for noncitizens in immigration court since 2014, started a new program last year, the Asylum Seeker Legal Assistance Network, to “expand community capacity to provide immigration legal assistance for newly arrived asylum seekers.” The program is limited to those who entered the United States on or after January 1, 2022. Some states, through their Offices of New Americans, have also connected migrants to legal support through resource clinics.
Nevertheless, it is unclear how these programs impact the overall supply of immigration attorneys. TRAC notes in its report that the Executive Office for Immigration Review, the agency that oversees the immigration courts, doesn’t publish the location or number of immigration attorneys practicing—despite previously providing that information. This makes it nearly impossible to determine know how many immigration attorneys are newly practicing before the courts, whether programs like New York’s increase the number of attorneys, and how EOIR’s ever-shifting policies may impact these numbers.
It’s clear from TRAC’s new data that more must be done to make sure all immigrants have access to the legal representation they need to successfully access our country’s immigration system.
FILED UNDER: TRAC
