Blazing a Trail: The Fight for Right to Counsel in Detention and Beyond

The federal government has long interpreted the immigration laws to mean that immigrants have a right to be represented by counsel in their deportation proceedings, but not at government expense. Making the right to counsel a reality is an imperative for all immigrants in removal proceedings, but the situation is even more critical for detained immigrants. As this report shows, the very circumstances of detention make that right a legal fiction for almost all detained immigrants. Mounting empirical data show that having a lawyer to help navigate the complex maze of the immigration detention and court systems makes a profound difference in a person’s ability to gain release from detention, challenge the government’s grounds for seeking their deportation, and present and win a defense that allows the person to remain in the U.S.

Innovative projects in New York and New Jersey have begun to provide what we are calling in this report “universal representation,” i.e., representation to any detained immigrant within the jurisdiction of a particular immigration court who does not have a private lawyer and who meets certain income requirements. Inspired by these examples, other localities across the country are examining how they can develop similar programs.