Outside the courtroom, there are many external obstacles that undermine fairness in the immigration court system. The two most prevalent obstacles are the lack of legal representation and the unnecessary use of mass detention.
A hollow “right” to counsel: Despite the high stakes involved and the adversarial nature of immigration court proceedings, there is no constitutional right to appointed counsel in removal proceedings, as exists in the criminal context. Respondents may hire an attorney at their own expense, but in practice this right is hollow for the hundreds of thousands of respondents, including children, who brave removal proceedings pro se because they cannot find or afford a lawyer.
U.S. immigration law is notoriously complicated, rivaling the tax code in its density and complexity. Yet at least one immigration judge has publicized the view that it is possible to teach immigration law to toddlers—raising questions about the degree to which immigration judges are able to gauge whether respondents even understand the nature of the proceedings against them or the availability of relief to which they may be entitled.
In reality, muddling through without a lawyer simply leaves respondents unable to access legal relief for which they might be eligible. Having an attorney is “almost a necessity” for winning asylum; in fiscal year 2016, asylum denial rates were 90 percent for unrepresented respondents compared to just 48 percent for respondents with representation.
Detention: Every year, hundreds of thousands of respondents fight their cases from immigration jails. Detention makes it exponentially more difficult to prepare for immigration court. From jail, respondents are less able to collect evidence needed to support fact-intensive applications for relief because they cannot leave the facility, have little or no internet access, are limited in their ability to send and receive mail, and are charged exorbitant rates to make phone calls. Conditions in detention centers—largely operated by for-profit companies—are often so deplorable they force respondents to abandon winning claims in exchange for their freedom.
Detention also compounds problems accessing counsel. Finding an attorney while detained is especially difficult because of the remote location of detention facilities and the impossibility of earning enough money in detention to pay a lawyer. For the fraction of detained respondents with counsel, having an attorney may do less good than it does for other respondents. The difficulty of accessing detained clients due to long visitation wait times, a low number of confidential visitation rooms, recorded and monitored phone lines, and other unnecessary bureaucratic red tape is well-documented. The rapid pace of immigration court’s “detained” dockets also gives attorneys considerably less time to prepare a case.