February 11th, 2019
The Debate over Universal Representation in Immigration Court
The Sixth Amendment gives defendants in criminal courts the constitutional right to an attorney regardless of their ability to pay. Defendants in immigration courts however only have the right to an attorney hired at their own expense.
Studies have found that not having an attorney can have a profound impact on an immigrant’s “ability to receive a fair hearing” and on the outcome of an immigrant’s case.
The effect of having an attorney can be seen in both detained and non-detained cases. Detained migrations are 11 times more likely to pursue potential relief from deportation if they have an attorney and are twice as likely to win their cases as detained migrants without an attorney. Non-detained immigrants who have attorneys are five times more likely to win their cases.
Unaccompanied children are also required to go to immigration court without appointed counsel although they have the right to find and hire an attorney themselves. A recent study shows that 73 percent of represented children end up being allowed to remain in the U.S., compared to only 15 percent of unrepresented children.
These statistics, along with the complexity of immigration law, have led many attorneys and politicians to argue that due process requires a right to government-appointed counsel in immigration court – otherwise an individual’s ability to access and pay an attorney may determine whether they are deported. New York was the first state to experiment with universal representation in immigration courts, by providing funding for the New York Immigrant Family Unity Project, a public defense program for immigrants facing deportation. Those who run the program intend it to be a model for other localities. Now, other cities and states have also made moves to provide funding for public defense programs for immigrants.
Opponents to universal representation argue that limited resources that exist around the country should be spent elsewhere. These opponents state that funds should be going to vital services, such as schools and roads. The debate is unlikely to end soon.