Friday, May 11, 2012


In December 2011, the New York Times published an article and an editorial on the findings of the 2011 New York Immigrant Representation Study Report (which found that there is an "immigrant representation crisis in both quantity and quality," at least in removal proceedings--as opposed to USCIS/benefits proceedings).

Although the study focused on New York, it might well signal an even bigger problem in the nation at large. (In terms of quantity of representation, for instance, apparently, 43% of immigration proceedings nationwide occur without representation--compared with about 26% in New York.)

The key "crisis" factors included:
  • Lack of a legal right to counsel in removal proceedings, and the (natural) absence of public funds allocated to that purpose;
  • DHS detention and transfer policies;
  • "Distinctive characteristics of the population facing removal:" language barriers, lack of financial resources, lack of familiarity with the legal system and "general vulnerability to unscrupulous lawyers;" and
  • Deficient performance by lawyers.
With regard to the last factor, in particular, one survey revealed:
"New York immigration judges rated nearly half of all legal representatives as less than adequate in terms of overall performace; 33% were rated as inadequate and an additional 14% were rated as grossly inadequate. The epicenter of quality problems is in the private bar, which accounts for 91% of all representation and, according to the immigration judges surveyed, is of signficiantly lower quality than pro bono, nonprofit, and law school clinic providers."
This immigration judge survey on lawyer performance was based on questions about the "general quality of representation," attorney preparation, knowledge of the law and familiarity with the facts of the case.

Now: anyone who has ever attended master calendar hearings can probably attest to it: there is a real representation quality problem. However, the New York Times article failed to highlight that, as the study suggests, the representation crisis has far more to do with quantity than quality. While 60% of detained NY respondents never obtained the assistance of counsel, compared with 27% of non-detained NY respondents, the study reports that:
  • Represented non-detained respondents were successful in 74% of cases; represented detainees: only 18% of the time.
  • Non-detained respondents were successful without representation only 13% of the time; detained respondents: 3% of the time.
This success rate variation seems attributable in large part to DHS detention and transfer policies, although we should keep in mind that detainees who remain detained are also more likely to have weaker cases in the first place (simply because cases that trigger mandatory detention tend to be weaker by nature).

That said, whether the main organizational stakeholders could find a way to compel better immigration lawyer performance is an interesting question. 

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