Rethinking Review Standards in Asylum

By Kim, Andrew Tae-Hyun | William and Mary Law Review, November 2013 | Go to article overview

Rethinking Review Standards in Asylum


Kim, Andrew Tae-Hyun, William and Mary Law Review


B. Lack of Quality Representation for Noncitizens

In early 2011, Second Circuit Court of Appeals Judge Robert A. Katzmann organized about 200 leaders from government and private practice to discuss the barriers that deny many noncitizens proper legal counsel. (239) Judge Katzmann described the general lack of representation for noncitizens in removal proceedings as a "substantial threat to the fair and effective administration of justice." (240) Indeed, noncitizens' fate largely rests on whether they can afford or find access to a lawyer. (241) According to one study, noncitizens with legal representation were five times more likely to win their cases than those without. (242) In New York, which contains one of the busiest immigration dockets in the country, 60 percent of detained noncitizens proceed pro se. (243) According to the New York Immigrant Representation Study, a two-year joint project of the Vera Institute of Justice and the study group spearheaded by Judge Katzmann, (244) having legal representation was one of the two most important variables in obtaining a successful outcome in a case, with detention status being the other variable. (245) Represented noncitizens who are not detained have a 74 percent rate of success. (246) But unrepresented noncitizens who are also not detained had a low success rate of only 13 percent. (247) According to Judge Katzmann, "[o]ften times, the reviewing appellate judge, who is constrained at the time the case comes before her, is left with the feeling that if only the immigrant had secured adequate representation at the outset, the outcome might have been different." (248)

One barrier to securing representation is that nearly two-thirds of noncitizens taken into custody in a city like New York are sent to distant detention centers in places like Texas, Louisiana, or Pennsylvania, where representation is even more difficult to secure. (249) These detention centers are located far away from metropolitan cities and are physically difficult to reach. (250) Kenneth Mayeaux, director of the LSU Immigration Law Clinic, states that it takes half a day just to drive to a detention center in Louisiana from a metropolitan city like Baton Rouge. (251) This fact alone would deter many attorneys from taking on an immigration client. (252) In such distant locations, nearly 80 percent of noncitizens go unrepresented. (253)

The lack of representation is just one problem; the quality of representation is another. According to one study, federal judges "agreed that immigration was the area in which the quality of representation was lowest." (254) One immigration judge stated, "I've grown concerned that many [immigration] attorneys are just not very interested in their work and therefore bring little professional vigor or focus to it." (255) According to the New York Immigration Representation Study, about fifty-two New York immigration attorneys have been expelled or suspended by the EOIR from the practice of law. (256) According to an official in the state attorney general's office, "Across New York, fraudulent legal service providers are making huge profits by defrauding immigrant communities." (257) Such issues have prompted immigrant groups to lobby for more funding for programs to train lawyers and advise noncitizens of their rights. For example, within the past year, a U.S. Department of Justice-sponsored project called the Legal Orientation Program opened a New York City branch to educate noncitizens of their rights, and Justice Department authorities have stepped up efforts to prosecute fraudulent lawyers. (258) According to Fatima A. Shama, the city's immigrant affairs commissioner, advocates are urging Mayor Bloomberg "to fulfill his 2009 campaign promise to spend $2 million to train lawyers." (259) But such measures appear to have stalled due to the budgetary cuts happening at both federal and state governments nationwide. (260)

An asylum applicant's chances of a favorable outcome increase with the presence and quality of representation because an attorney is better able to elicit, develop, and frame the relevant facts to support the petitioner's claim for asylum. …

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