Revisiting the Need for Appointed Counsel

Despite the complexity of immigration law and procedures, most immigrants in the United States facing removal lack legal representation. Although federal statute affords “the privilege of being represented,” to persons in removal proceedings, appointed counsel must be “at no expense to the government.” This brief examines the “no expense” restriction and its effect on case outcomes. It then outlines a number of ways in which legal representation could be increased without significant federal funding.

The report finds that the lack of counsel has a pronounced, negative impact on case outcomes. Furthermore, recent changes in immigration law appear to have simultaneously increased the complexity of legal standards and raised the stakes for immigrants facing removal. The author argues in favor of an appointed counsel system, contending that particularly vulnerable immigrants—including indigent immigrants with viable claims to remain in the United States and asylum seekers whose case outcomes often carry life-or-death consequences—could greatly benefit from legal representation. He also proposes that legal representation serves the government’s interest by promoting better-prepared cases, more efficient proceedings, shorter detention periods, and correct legal decisions. The report then highlights three models that the government could adopt to increase legal representation: (1) a public defender-like system; (2) a pro bono representation model; and (3) a legal orientation program for detainees.