Notice & Comment

New Report from Stanford Law School on the Effect of Legal Representation in the Administrative Process (Immigration Court)

The effect of legal representation is a topic near and dear to those who study and work in the agency adjudication context, whether that be immigration, social security, special education, tax, or veterans benefits — just to name a few. For instance, my colleague Stephanie Hoffer and I explore those issues in the tax context with respect to unrepresented tax payers before the IRS and Tax Court in a paper (available here; see Part III) that should be coming out in the Minnesota Law Review any day now.

One’s intuition — backed up by some empirical work — would suggest that individuals more effectively navigate the administrative process (as well as the judicial process) when represented by competent counsel.  Today the Stanford Law School Immigrants’ Rights Clinic, under the direction of Jayashri Srikantiah,* released an important report for the Northern California Collaborative for Immigrant Justice that provides an empirical window into the effect of legal representation in immigration court. The report can be found here, and the key findings include (quoting from the report):

1. The overwhelming majority of detained immigrants in removal proceedings before the San Francisco Immigration Court were not represented by counsel. Roughly 2/3 of detained immigrants had no legal representation at any point in their removal proceedings.

2. Represented detainees were at least three times more likely to prevail in their removal cases than detainees who were not represented by counsel. Based on our analysis of all individuals detained in a year-long period, detained individuals without counsel only prevailed 11% of the time. By contrast those with lawyers prevailed 33% of the time.

3. Over 50% of detainees represented by the surveyed nonprofits had lived in the United States for at least ten years or more. 77% of detainees had family members living at home in the United States. 65% of detainees were employed prior to being placed in detention.

4. Detainees represented by the nonprofits we surveyed won their deportation cases 83% of the time. This success rate stands in stark contrast to the results of the Executive Office of Immigration Review (EOIR) study, in which detained individuals without counsel only prevailed 11% of the time.

5. Detainees represented by the surveyed nonprofits were granted bond over 71% of the time, in cases where bond was requested. This means that the detainees were released and could fight their cases from home with the support of their families, while employed, and with the ability to more easily access documents helpful to their immigration cases.

The full report is definitely worth a read for those interested in immigration law and policy as well as those interested more generally in the effect of legal representation in the administrative state and judicial process.

* Spending two semesters in the Immigrant Rights’ Clinic at Stanford Law School was one of the highlights of my legal education. Representing a client in immigration court — an agency adjudication — taught me so much about the interaction between the administrative and judicial process, and my work in the clinic at the U.S.-Mexico border led to one of my first publications (here).

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