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July 6, 2022
U.S. Immigration Courts: Access to Counsel in Removal
Proceedings and Legal Access Programs
Immigration courts are within the Department of Justice’s
overall number of pending cases has increased (Figure 1).
Executive Office for Immigration Review (EOIR). During
Representation rates for asylum seekers are substantially
removal proceedings in immigration courts, immigration
higher. At the end of FY2022, Q1, 84% of asylum cases
judges (IJs) determine whether noncitizens (respondents)
pending in immigration courts were represented.
charged with an immigration violation by the Department
of Homeland Security are removable and, if so, whether
Figure 1. Pending Cases by Representation Status
they qualify for relief from removal, such as asylum.
FY2018-FY2022 (Q1)
Removal proceedings are conducted under Section 240 of
the Immigration and Nationality Act (INA). INA Section
240(b)(4) states that respondents “shall have the privilege
of being represented, at no expense to the Government, by
counsel of the alien’s choosing who is authorized to
practice in such proceeding.” That is, respondents may
obtain counsel at their own expense or pro bono; the federal
government generally may not provide counsel.
Authorized Representatives
EOIR is required to provide respondents with a list of free
or low-cost legal service providers (8 C.F.R. §1003.61(b)).
Persons eligible to represent respondents in immigration
Source: EOIR, “Current Representation Rates,” Adjudication
court, specified in 8 C.F.R. §1291.1, include
Statistics, multiple years (*FY2022 through first quarter).
attorneys registered to practice with EOIR;
accredited representatives registered to practice with
Among cases in which respondents filed asylum
EOIR (explained below);
applications during the last 10 fiscal years, the rates of
asylum and other forms of relief granted in unrepresented
U.S. law students and graduates not yet admitted to the
cases (15%) were about 66% lower than the rates of relief
bar appearing under the supervision of a faculty
granted in represented cases (44%) (Figure 2).
member, licensed attorney, or accredited representative;
reputable individuals of good moral character, with a
Figure 2. Relief Grants and Denials by Representation
pre-existing relationship to the respondent, appearing
Status, FY2013-May 2022
without remuneration; and
accredited officials of foreign governments who are in
the United States.
Otherwise, unrepresented individuals represent themselves
in court (pro se appearances).
Recognition & Accreditation (R&A) Program
Non-attorneys can become accredited representatives
through EOIR’s R&A program and provide legal services
through nonprofit, tax-exempt recognized organizations.
EOIR states the program “aims to increase the availability
of competent immigration legal representation for low-
income and indigent persons, thereby promoting the
effective and efficient administration of justice.”
Rates of Representation and Relief
Source: Transactional Records Access Clearinghouse (TRAC) at
Outcomes
Syracuse University, “Asylum Decisions,” data tool, June 2022.
Notes: TRAC receives data from EOIR via the Freedom of
As of FY2022, Q1, approximately 53% of all respondents
Information Act. Relief refers to grants of asylum and other relief.
with pending cases had representation. The proportion of
represented respondents has generally decreased since
Some have raised concerns about circumstances that pose
FY2018 (the earliest available data). During this period, the
barriers to obtaining counsel, such as being detained.
https://crsreports.congress.gov
U.S. Immigration Courts: Access to Counsel in Removal Proceedings and Legal Access Programs
Research examining detained cases decided between 2007
National Qualified Representative Program
and 2012 found that represented detained respondents were
(NQRP)
10.5 times more likely to succeed in their cases than those
In 2013, in the matter of Franco-Gonzalez v. Holder, a U.S.
who were unrepresented (Ingrid V. Eagly and Steven
district judge found that individuals with serious mental
Shafer, “A National Study of Access to Counsel in
disorders are entitled to a Qualified Representative as a
Immigration Court,” University of Pennsylvania Law
reasonable accommodation during removal proceedings
Review, vol. 164, no. 1 [2015]). Represented respondents
under Section 504 of the Rehabilitation Act (P.L. 93-112).
were also more likely to appear for their hearings.
The judge ordered the Attorney General to provide
representation to such individuals. Subsequently, EOIR
Other populations for which some have expressed concerns
established the NQRP, which provides counsel to
about legal representation include those held in Mexico
respondents who are found by an IJ or the Board of
under the Migrant Protection Protocols, those placed on
Immigration Appeals (BIA; EOIR’s appellate body) “to be
accelerated dockets (e.g., the Dedicated Docket for family
incompetent to represent themselves in proceedings.”
units apprehended at the Southwest Border), and children.
BIA Pro Bono Project
Opposition to Publicly Funded Counsel
Respondents in removal proceedings may appeal an IJ’s
The Sixth Amendment guarantees the right to counsel only
decision to the BIA. EOIR established the BIA Pro Bono
for those in criminal proceedings. Opponents of federal
Project with the Catholic Legal Immigration Network, Inc.,
funding for immigration counsel argue that noncitizens in
in collaboration with other nonprofit legal organizations.
removal proceedings should have no right to publicly
The program matches unrepresented respondents to pro
funded representation because these are civil proceedings.
bono representatives when they have cases under appeal.
They contend that providing counsel to those in removal
proceedings would therefore confer a disproportionate
Model Hearing Program (MHP)
benefit to noncitizens at taxpayers’ expense. Others have
MHP provides trainings for attorneys and representatives
opposed state and local funding for representation on the
practicing in immigration court, with a goal of improving
basis that immigration is a federal policy issue.
the quality of representation before immigration courts.
EOIR Legal Access Programs
Immigration Court Helpdesk (ICH) Program and
EOIR’s Office of Legal Access Programs houses several
Immigration Court Online Resource (ICOR)
initiatives that facilitate access to legal information and
The ICH program offers nondetained respondents one-on-
referrals. Many of these programs are administered by the
one information sessions, workshops, pro bono outreach,
Vera Institute of Justice (Vera), a nonprofit organization.
and group information sessions. According to Vera, ICH
operates in 13 immigration courts. EOIR announced ICOR
Legal Orientation Program (LOP)
in 2020 as “an expansion of the [ICH] program.” The
Through LOP, legal service providers offer legal orientation
online tool provides information for respondents and
to detained respondents. The program includes group and
attorneys/representatives practicing before the courts/BIA.
individual orientations, self-help workshops for pro se
respondents, and referrals to pro bono legal services.
State and Local Programs
According to Vera, LOP operates at 43 immigrant detention
Some state and local governments, typically working with
facilities in Arizona, California, Colorado, Florida, Georgia,
nonprofit organizations, have developed programs to
Illinois, Louisiana, Maryland, New Jersey, New Mexico,
provide counsel—particularly for detained respondents—an
Pennsylvania, Texas, Virginia, and Washington.
effort some refer to as universal representation. According
to Vera, eight states fund counsel for those in removal
Legal Orientation Program for Custodians of
proceedings (California, Colorado, Illinois, Nevada, New
Unaccompanied Alien Children (LOPC)
Jersey, New York, Oregon, and Washington). Several local
LOPC provides legal orientation for the adult caregivers of
governments have also established such programs.
unaccompanied alien children (UAC) in removal
proceedings. The program is a collaboration between EOIR
Relevant Legislation
and the Department of Health and Human Services (HHS),
For several years, lawmakers have introduced measures that
Office of Refugee Resettlement, the agency responsible for
would provide government-funded counsel for certain
the care and custody of UAC. The William Wilberforce
respondents. For example, in the 117th Congress, S. 901 and
Trafficking Victims Protection Reauthorization Act (P.L.
H.R. 530 would direct agencies to appoint counsel to
110-457, §235(c)(5)) requires HHS, to the greatest extent
certain children and “vulnerable” populations.
possible, to ensure that UAC in their custody have counsel.
In the first quarter of FY2022, 54% of UAC with pending
For more information about immigration courts, see CRS
cases were represented.
Report CRS Report R47077, U.S. Immigration Courts and
the Pending Cases Backlog; and CRS In Focus IF11536,
Counsel for Children Initiative (CCI)
Formal Removal Proceedings: An Introduction.
CCI provides representation for certain unaccompanied
children in eight immigration courts: Atlanta, Houston, Los
Holly Straut-Eppsteiner, Analyst in Immigration Policy
Angeles, New York, San Diego, San Francisco, Seattle, and
Portland.
IF12158
https://crsreports.congress.gov
U.S. Immigration Courts: Access to Counsel in Removal Proceedings and Legal Access Programs
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