There is a serious shortage of immigration attorneys. The dearth of lawyers makes it more difficult for non-citizens to obtain legal help. It also makes the immigration system less efficient.

A recent report from TRAC Immigration shows that representation rates in Immigration Court have fallen significantly in recent years. In 2019, 65% of non-citizens in court had a lawyer. In 2023, only 30% were represented by counsel.

What's the reason for this shortfall? How is it affecting immigrants, lawyers, and "the system," and what can be done to raise representation rates?

The main problem is not that there are fewer immigration attorneys than in 2019. Rather, as the number of litigants in Immigration Court has skyrocketed, there are not enough existing and new lawyers to take their cases. According to TRAC--

Simple math exposes the challenge of finding representation. The Court backlog has increased more than three-fold since September 2019. This also means that three times as many immigrants need attorneys.

So one reason for the immigration lawyer shortfall is increased demand that is largely unmet. Another problem is that the system itself is a disaster--both in Immigration Court and the Asylum Office. Setting aside the severe damage this does to migrants, the asylum system inflicts significant harm on attorneys. Reports indicate that immigration lawyers are facing a "longstanding mental health crisis," and this certainly aligns with what I hear from my colleagues (and what I say to them). Given the difficult work environment, it's not surprising that more new lawyers are not entering the field, and that some old timers are leaving.

The lawyer shortfall has real-world consequences for non-citizens and for the system itself. For people in court, representation by an attorney makes a difference. TRAC reports that in--

FY 2016 immigration judges denied... unrepresented asylum seekers' claims 90 percent of the time. In contrast, if represented, the odds of denial... was 48 percent. Or stated another way, more than five out of every ten represented asylum seekers were successful as compared with only one out of every ten who were unrepresented.

When asylum seekers in Immigration Court do not have a lawyer, they are more likely to lose. I have not seen data on representation at the Asylum Office, and while I expect the disparity between represented and unrepresented applicants is less dramatic, having a lawyer there would certainly improve an applicant's odds of success.

Lawyers also benefit the system. When a person in court is unrepresented, the judge usually gives her more time to find a lawyer. This delays the case, often by many months. Also, lawyers know how to organize and present an applicant's claim, which allows the case to proceed more efficiently. The same is true at the Asylum Office, where the lawyer can present the application and evidence in an organized fashion, which makes the officer's job easier.

If attorneys benefit asylum seekers and the system, what can the government do to increase representation?

The most obvious answer is that the government could provide attorneys to people who cannot afford them, either directly or by funding non-profit organizations. The immigration bill that recently failed contained a provision to provide lawyers for minors and people who were deemed incapable of representing themselves. Had it become law, this would have been a good start.

The government could also do more to increase the number of accredited representatives. These are non-lawyers who work for non-profits and who are permitted to represent immigrants in court. If this program could be expanded to private law firms, the pool of potential accredited representatives would expand dramatically.

Also, much more could be done to encourage private attorneys to enter and remain in the field.

In Immigration Court, schedules should be more regular, cases should not be randomly advanced or canceled, judges should respect attorney's requests for additional time to prepare or if they have a scheduling conflict, Master Calendar Hearings should always have a Webex (internet-based) option, and communicating with courts should be easier. We also need more DHS attorneys (prosecutors) who should make an effort to resolve cases well before the trial, so attorneys do not have to spend time preparing cases that will ultimately be dismissed.

At the Asylum Office, interviews should not be scheduled without sufficient notice, we should return to "first-in, first-out" (FIFO) scheduling, the Asylum Office Scheduling Bulletin should be re-instituted, so we have an idea about when long-delayed applicants will receive their interviews, and there should be more transparency about when to expect decisions.

Of course, private attorneys need to be paid. For that to happen, our clients often need time. When cases move very quickly, attorneys have to charge more money up front. As a result, some asylum seekers won't be able to afford the fee. If court schedules allowed for a reasonable and predictable time frame, and if the Asylum Office returned to FIFO, or at least gave sufficient notice before the interview, attorneys could offer a more reasonable payment schedule, which would make it easier for asylum seekers to afford counsel.

In short, if the government made case schedules more predictable and more manageable, the practice environment for lawyers would improve, and the field would become more attractive to newcomers. Unfortunately, for the last many years, and through various Administrations, the government has demonstrated that it could care less about asylum applicants, let alone their attorneys, and so I doubt we will see improvements any time soon. That's too bad, because without enough attorneys to represent them, many asylum applicants will be denied the protection they deserve, and our nation's commitment to human rights will remain unfulfilled.

Originally posted on the Asylumist: