As the elevator rises through the federal office building in downtown Portland, Oregon, one expects the sliding doors to open onto rows of federal bureaucrats keystroking policy into reality. Instead, a narrow hallway leads to the lobby of two diminutive courtrooms. This administrative court, like others scattered across the nation, is where immigration judges daily determine whether noncitizens will be expelled from the United States or remain in permanent or liminal immigration status. Some noncitizens arrive with their lawyers. But many appear pro se, or sometimes not at all. Shining light on immigration courts, Ingrid Eagly and Steven Shafer published their groundbreaking study of immigrant representation in 2015, A National Study of Access to Counsel in Immigration Court. I fan-girled their work here, and watched their revelations impact legal scholarship, briefs, opinions, and media.
Then the world changed. Even as statutory reform remains stuck in cryo, immigration policy has lurched wildly—from lots of enforcement, to more, to still more, until now when proclamations of mass incarceration and deportation of the worst of the worst sear national headlines. Immigration courts have lurched in time, if not in tune, with these developments, with backlogs weighing down due process. Meantime, communities, NGOs, states and localities responded to the threat of removal of thousands of long-term residents by trying to expand representation of noncitizens in their communities. Eagly and Shafer did what any self-respecting empirical scholarly team would when faced with this new reality. They created a troika, adding co-author Renee Moulton, rolled up their sleeves, and went back to work. Access to Counsel in Immigration Court is a master class in translating empirical analysis into accessible and compelling analysis.
The scope of their project is so large you have to step back to see it. In this new report, the three authors analyzed more than 8 million deportation cases between 2006 and 2024 to deconstruct the state of legal representation in the U.S. immigration system. What they discovered is good news and bad news. Here’s the good news: more lawyers are representing more immigrants now than before, more immigration courts have more immigration judges (or had more), and when immigrants are represented in immigration court, they’re more likely to win. Here’s the bad news: the system is running a race it cannot win. More on that in a moment.
Here’s what you need to know first: the pool of people entering the deportation system today is much larger and more complex than twenty years ago. Nationality and geography heavily influence representation rates. Between the original study and this one, many nationalities saw their representation rates shift. The representation rates for Mexicans increased from 21 percent to 50 percent, and for Hondurans from 23 percent to 41 percent. But the study reveals a precipitous decrease in the rate of representation for Haitian nationals, from 71 percent to 43 percent. For immigrants from Colombia, the representation rate decreased from 64 percent to 35 percent.
Data from the last two decades shows a clear increase in the number of noncitizens with legal representation. As of 2012, only about 37 percent of immigrants were represented in court. After 2012, representation rates jumped to 52 percent. Representation of unaccompanied children played a major role in this change: their representation rate leaped to 62 percent. Part of this story is that between 2006 and 2024, the population of active representatives almost doubled. Most representation (99 percent) is provided by licensed attorneys. But representation by nonlawyers, such as law students and accredited representatives, makes important contributions to immigration court representation, and those experiences lead many accredited reps to become immigration lawyers.
Representation matters. Despite transformative shifts in the makeup of the client pool and the immigration bar, the study reveals that higher representation rates undoubtedly lead to better outcomes. Between 2013 and 2024, immigrants were overall 4.6 times more likely to avoid removal from the United States if they had counsel (14 percent versus 64 percent). For one thing, represented people tend to show up to court. Both studies consistently found that close to 94 percent of those who found representation attended all of their hearings. For those who claim that immigrants skip out on their hearings, more and better representation is the new bandwagon to jump on.
And representation for children really matters: with counsel, 73 percent of children succeeded in their removal cases, compared to only 15 percent of those without counsel. In other words, kids with lawyers were almost 5 times more likely to succeed than kids representing themselves. While it may seem obvious that kids with lawyers do (lots) better than kids without, not everyone seems to share that insight, so it’s nice to have data that backs it up.
Where an immigrant is located, and whether they are detained, makes a difference in whether they are likely to be represented and whether they are likely to succeed. Representation rates have risen in small cities and in courts attached to detention facilities. Detention matters now more than before: those released from detention or who were never detained saw a 13 percent jump in success in court since the last study period. Representation rates in detained courts ranged from a high of 22 percent in El Paso to close to zero in Tucson. For noncitizens held in carceral conditions, under tremendous pressure to end the ordeal by agreeing to deportation, representation can provide a reason to wait. And it often results in release on bond.
In the face of this news about the expansion of immigration representation, the authors sound a warning bell—several, actually. Representation in the ballooning number of pending cases decreased from 47% in 2012 to only 31% in 2024. Deportation defense practitioners are now stretched to the breaking point: In fiscal year 2024, only 16,976 representatives provided counsel for just over 1.4 million immigrants facing removal, leaving almost 2.9 million immigrants unrepresented.
The representation rate for those not detained has fallen from 66 percent to 57 percent between 2013 and 2024. The authors suggest that this decrease results from focusing resources on high-stakes detention centers, such as through Legal Orientation Programs. This drop in representation rates means that many immigrants are left to figure out the deportation system on their own. Geography matters too. Representation in non-detained courts varied from 87 percent in New York to just 47 percent in Kansas City and Atlanta.
And, although the immigration bar has grown, it is greener that it was in 2013. The median number of years of experience immigration attorneys have is three years. These rates suggest that a significant chunk of the immigration bar is new to the practice. The numbers may also indicate a rapid turnover rate.
Now, massive case backlogs, erratic policy changes in immigration adjudication, and an increase in resources dedicated to arrest, detention, and removal are pushing an increasing number of cases into immigration courts. Lawyers and courts are straining to keep up. The immigration case backlog has continued to balloon at a rate that outpaces the rate at which immigration judges decide cases.
And this brings me to my one complaint about this article, and that’s the title: (it’s Access to Counsel in Immigration Court, Revisited, in case you missed it). Don’t get me wrong—it is accurate, and it trips nicely off the tongue when spoken or sung (try it!). But it severely underplays the contribution the article makes. Broadly, this study comes to the same conclusion as the 2015 study, with data to back it up: that a lawyer can make or break the outcome of whether a noncitizen may stay or must go. But our authorial troika hasn’t merely revisited the original study. The piece makes a great leap forward, injecting valuable data and insights into scholarship, advocacy, and public dialogue, and it does so at a critical historical moment. I like it. Lots.
