The stakes in immigration court could not be higher—many people face the possibility of being permanently torn away from their families and communities in the United States. Others seeking protection in the U.S. risk being forced back to dangerous conditions in their home countries. Despite these extraordinarily high stakes, immigrants are not entitled to publicly funded lawyers.

A new policy brief from the Vera Institute of Justice explains why this needs to change now.

The Value of an Immigration Lawyer

An attorney can make a tremendous difference in someone’s immigration case. And unlike the criminal justice system, those in the immigration justice system do not have the right to a public defender. Even children are forced to defend themselves in immigration court alone.

According to the Vera Institute brief, immigrants who have lawyers are 3.5 times more likely to be granted bond, which lets them fight their cases outside of detention. Immigrants who have a lawyer are also up to 10 times more likely to establish their right to remain in the United States than those who do not.

These statistics, while sobering, are not surprising. Immigrants without lawyers are forced to navigate a complex legal system. They must learn immigration law; draft and file legal documents; face off against trained trial attorneys from the Department of Homeland Security; and appear before immigration judges entirely on their own, often in a language they do not know.

The challenges for those in immigration detention are even worse. The majority are cut off from legal resources and are often unable to communicate with and obtain evidence from the outside world.

The Numbers on Legal Representation

Despite the importance of having legal representation, many immigrants are unable to access it.

In fiscal year 2019, a staggering 77% of people with completed immigration court cases did not have lawyers.  The need in immigration detention is particularly high—70% of individuals in detention over the past five years have not had lawyers.

A Public Defender Program Can Help Address Systemic Problems

Vera’s policy brief calls for a federal defender system that is universal, zealous, and person-centered. It explains that this service is necessary to address our immigration system’s racist history and current harms.

Our immigration system has a long history of excluding immigrants of color, dating back to the Chinese Exclusion Act in the 19th century. Since then, racism has continued to permeate all facets of the immigration system.

More recently, the Trump administration worsened racial inequities through its actions and policies. This included its Muslim ban, family separation policy, and the Migrant Protection Protocols—a program that forced asylum seekers to wait in dangerous conditions in Mexico while their immigration court cases proceeded in the U.S.  A federal defender service for immigrants is necessary to begin addressing this ugly history.

Providing a universal federal defender service will help address the criminalization-to-deportation pipeline and mitigate the discriminatory effects of the criminal legal system.  Black and other overpoliced immigrants of color are at a higher risk of deportation as a result of any law enforcement contact, even if it is incidental and does not result in a criminal charge or conviction.

The harmful effects of our closely linked criminal and deportation systems can be reduced by guaranteeing that immigrants have legal representation at every step of the process.

We need a way to make sure that immigrants are never deported simply because they lack the economic resources to pay for a quality legal defense. According to Vera, a significant majority of people in the United States—67%—support government-funded representation for immigrants facing deportation.  The Biden administration has the opportunity to build a federal defender service for all immigrants.  The administration should embrace the opportunity to do so now.


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