New Illinois Law Allows Public Defenders to Represent Immigrants Facing Deportation

by Emma Winger


Illinois Governor J.B. Pritzker signed a law in August that would allow the Cook County Public Defender to represent immigrants in the Chicago immigration court. The law is part of a movement to expand access to legal representation for people facing deportation. It comes on the heels of another pro-immigrant Illinois law that disallows immigration detention in the state.

A person charged with a jailable crime has the right to a free attorney if they cannot afford one. Often that free lawyer is a public defender paid for by the state. But a person facing deportation does not have a right to a free lawyer in most cases. If an immigrant cannot afford a lawyer and cannot find a legal services provider who is able to take his case, he will have to fight against deportation alone. This involves navigating laws that are often described as “byzantine” and as complex as the U.S. tax code.  

Having a lawyer can mean the difference between getting legal status in the United States and being forced to leave. A 2015 study showed that for nondetained immigrants, people with lawyers were nearly five times more likely to obtain immigration relief than those without (63% of those with representation obtain relief versus 13% of those without representation obtain relief). Among detained immigrants, people with lawyers were twice as likely to obtain relief than without lawyers (49% of those with representation are able to obtain relief whereas only 23% of those without representation are able to obtain relief).

For this reason, advocates have been urging Congress and the Biden administration to expand government-funded counsel for immigrants and to create a right to government-funded counsel for individuals in deportation proceedings.

But until the federal government acts, some cities and states have taken steps to expand the public defender model to include immigration representation. The New York Immigrant Family Unity Project (NYIFUP) is the first and largest public defender program for detained immigrants facing deportation in New York. Right now, at least 40 jurisdictions in 18 states—including California, Texas, and Georgia—provide some form of government-funded attorneys to immigrants facing detention and deportation.

But there is still so much work to be done. At least 40% of all people in deportation proceedings do not have a lawyer. The unrepresented rate is much higher for people in detention. Between 2015 and 2017, around 70% of detained individuals in deportation proceedings did not have attorneys.

The new Illinois law will allow the Cook County Public Defender’s Office to make a dent in the number of cases [in Chicago immigration court] that need representation.” But it will not provide universal representation to Cook County residents facing deportation who cannot afford an attorney. The City of Chicago also provides some funding for immigration representation for Chicago residents.

State and local action, while commendable, is not enough. Congress will need to take action to ensure that all people in deportation proceedings are not deported merely because they could not afford an attorney.

This post originally appeared on Immigration Impact Reprinted with permission.


About The Author


Emma Winger is a Staff Attorney with the American Immigration Council, where she works to protect the rights of noncitizens through affirmative litigation, amicus briefs, and practice advisories for immigration attorneys. Before joining the Council, Emma was a staff attorney with the Immigration Impact Unit of the Committee for Public Counsel Services in Massachusetts, where she advised criminal defense counsel about the immigration consequences of criminal dispositions and engaged in litigation on issues involving the intersection of criminal and immigration law. In addition, she spent two years as a law clerk for a federal district court judge in New Jersey. She holds a J.D. from Boston College Law School and a B.A. in History from Yale University.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.