Immigrants' Access to Legal Representation for Immigration Court in the United States

Overview: Unrepresented immigrants encounter significant barriers in immigration court, and seldom receive a fair trial that upholds their constitutional protections. Guided by the institutional courage framework, this study examines legal representation programs for immigration court and demonstrates how social workers can promote institutional courage and protect immigrants’ rights.Proposal text: In the United States, immigrants are not guaranteed access to government funded legal representation for immigration court proceedings if they cannot afford a lawyer. Since 2001, 74.6% of immigrants in the United States who were issued deportation orders by judges lacked legal representation for immigration court (Transactional Records Access Clearinghouse, 2021). Low income, unrepresented migrants experience substantial barriers to accessing fair trials that uphold their constitutional protections. In the absence of widespread public defender programs, local governments, non-profits, and university-based legal clinics have emerged to provide immigrants with access to legal representation for immigration court proceedings. This presentation maps the landscape of legal representation programs, locates avenues for protecting immigrants’ rights, and assesses the merits of three major legal representation programs utilizing the theoretical frameworks of institutional courage and institutional betrayal as developed by Dr. Jennifer Freyd. Institutional betrayal is defined as institutional actions, or inactions, which harm those individuals who depend on the institution for protection, assistance or survival (Smith & Freyd, 2014). Institutional courage emerges through institutional actions that pursue justice for and protect the individuals who depend on the institution (Freyd & Smidt, 2019).
Guided by institutional betrayal and institutional courage, this qualitative study examines state level policies, local municipal programs, and non-profit based legal clinics providing immigrants free legal representation for immigration court. Data include secondary and primary source documents from local publicly funded legal representation programs as well as non-profit based legal representation programs. Programs examined include the New York Immigrant Family Unity Project, Los Angeles Justice Fund, and programs under the Safety & Fairness for Everyone Initiative instituted through the Vera Institute of Justice.
Ultimately, the study demonstrates that the variation in legal representation programs leaves many immigrants without access to counsel. Program eligibility criteria, resource and budgetary missteps, and precarious political structures produce substantial gaps in service provision, which can result in a system that subjects immigrants to institutional betrayal. Data analysis demonstrates avenues for promoting institutional courage within legal representation programs. Further, a unique space emerges in this context for social workers to engage as advocates for immigrants in court. The role of social work practice in immigration court is discussed as a mechanism for promoting institutional courage, and avenues for social workers to engage with immigrants in immigration court are identified. This paper is part of a larger research study funded by a grant from the Center for Institutional Courage.