Studies Show that Government-Funded Counsel for Indigent Immigrants Facing Deportation Would Promote Justice and Save Money
By Morgan Macdonald
President Obama recently issued executive action that benefits millions of undocumented immigrants, but one issue that the recent executive action did not address is access to legal counsel for indigent immigrants facing deportation. At CAIR Coalition, we provide legal assistance to detained indigent immigrants in Maryland and Virginia and we see on a daily basis the nearly insurmountable hurdles that those individuals face when defending themselves in immigration court without an attorney. Our resources are limited and often we can offer only a group legal orientation session and a short case consultation to each individual. In a relatively small number of cases, we are able to represent an immigrant throughout the entirety of his case or place the case with a pro bono attorney. Too frequently, however, our short case consultations are the only legal assistance an immigrant will receive throughout the entire deportation process, which usually involves procedurally complex adversarial court proceedings where the ability to articulate challenging legal arguments is essential. This is so despite the critically high stakes at issue in deportation proceedings; indeed, the Supreme Court has recognized that “preserving [a noncitizen’s] right to remain in the United States may be more important to [the noncitizen] than any potential jail sentence,” Padilla v. Kentucky, 559 U.S. 356, 368 (2010) (quoting INS v. St. Cyr, 533 U.S. 289, 322 (2001)). Yet, unlike most criminal cases where defendants have the right to a public defender at no cost, the law provides no right to government-funded counsel for detained indigent immigrants in deportation cases.
The lack of government-funded representation for indigent immigrants facing deportation applies across the board, even to lawful permanent residents (“green card” holders) who have been present in the United States for decades and have U.S. citizen family members. A lawful permanent resident convicted of a single misdemeanor can be placed into deportation proceedings, mandatorily detained in an immigration jail during the entirety of his case and deported to a country where he has no family and fears persecution – all without the ability to obtain legal representation if he cannot afford a lawyer. The Supreme Court’s much celebrated ruling in Gideon v. Wainright, 372 U.S. 335 (1963), which set forth the guarantee of government-funded counsel for criminal defendants based on the premise that “our state and national constitutions and law have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law,” does not apply in immigration cases despite the fundamental liberty interests at stake.
Given this background, it is perhaps unsurprising that recent empirical studies show that the lack of counsel available to most indigent immigrants has a profound impact on their ability to defend themselves. An October 2014 study by the Northern California Collaborative for Immigrant Justice (“NCCIJ”) illustrates this point (the study can be found here: http://tinyurl.com/mugu3e7). The study found that among immigrants facing deportation in San Francisco’s Immigration Court: (1) detained immigrants facing deportation are more than 50% less likely to have representation in immigration court than non-detained immigrants; (2) detained immigrants with lawyers are three times more likely to prevail in their removal than those without lawyers; and (3) immigrants who have lawyers are more than twice as likely to assert defenses to deportation in the form of applications for relief from removal. The NCCIJ report follows a similar study released in December 2011 analyzing the representation of immigrants facing deportation in New York City (the “Katzmann Study Group Report”). The Katzmann Study Group Report found that 60% of detained immigrants do not have a lawyer by the time their cases are completed, and that immigrants who are unrepresented and detained only have a 3% chance of obtaining relief from deportation as compared to 18% of those who are represented but detained and 74% of those who are represented and released or never detained (the study can be found here: http://tinyurl.com/7lmxvfo).
Although the need for legal representation among detained immigrants is unquestionable, there has been relatively little movement towards adopting a system for government-funded counsel. Opponents of such a system often raise concerns about cost. However, one recent study convincingly demonstrates that, in fact, government-funded counsel for detained immigrants would yield such great cost savings that it would effectively pay for itself. In May 2014, NERA Economic Consulting released a study analyzing the estimated cost and offsetting savings of a program funded by the federal government to provide counsel to every indigent respondent in removal proceedings before an immigration judge (the study can be found here: http://tinyurl.com/nsv3ugn). Purely from a cost-savings perspective, the NERA study concludes, based on factors such as decreased detention time and increased efficiency for court hearings, that according to “calculations using available data and reasonable assumptions, fiscal savings to the Federal government (between approximately $204 and $208 million) would pay for most if not all of the entire cost of the Proposal (approximately $208 million).”
These studies show that delaying the implementation of a government-funded defense system for detained indigent immigrants facing deportation not only deprives those immigrants of the ability to effectively assert meritorious defenses but may be economically unwise from a cost-savings perspective. Rather, guaranteed government-funded counsel would promote a more just and efficient system.
