The Barriers to Legal Representation for Asylum Seekers
By Madi Wickett and DaZha Creal
As students in Dr. Rebecca Galemba’s Qualitative Research Methods course (INTS 4632), we partnered with the Colorado Asylum Center to conduct a class research project on the role of the family in asylum proceedings and to contribute to their ongoing Court Watch project, which tracks violations in asylum hearings. We attended immigration court proceedings in Denver, Colorado with a focus on Dedicated Docket and juvenile cases. The Dedicated Docket is designed to expedite the asylum process for families entering the United States through the southern border from Central American countries. The goal of the docket is to have a decision on their asylum applications made within 300 days of their first master calendar hearing, which would drastically cut the families’ wait time down from the 4.5-year average for non Dedicated Docket cases. Our time spent observing the Denver Immigration Court revealed the high prevalence of asylum seekers (or respondents in legal terms) without any legal representation. The importance of this issue is well-studied in the literature on immigration, but our observations and conversations with lawyers and court staff reveal the depth of barriers to obtaining counsel.
Legal representation has a measurable and well-documented effect on the success of immigration and asylum applications. The Government Accountability Office (GAO) first reported the disparity between represented and unrepresented applicants in 2008. They found that asylum seekers with lawyers were granted relief at a rate three times higher than that of unrepresented asylum seekers. As of 2017, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, asylum seekers with lawyers are five times more likely to be granted asylum than those without lawyers. In his 2020 book, Court of Injustice, J.C. Salyer explains that the asylum application process is complex and evidence can be difficult to gather. Without a lawyer, respondents may be unable to discern what information, testimony, or documents will best support their case. Additionally, having access to counsel significantly increases the likelihood of a respondent being released from detention and granted other forms of relief from deportation. Even as graduate students and native speakers of English, we struggled to follow the court proceedings and the details of the asylum process. We quickly realized that this confusion must be compounded many times over for asylum seekers new to the United States.
However, because immigration court is considered a civil administrative process, respondents are not entitled to a government-provided lawyer if they are unable to afford one. This has led to a crisis in unrepresented and inadequately represented respondents in asylum proceedings. Nationally, the American Immigration Council reports that only 37% of immigrants nationally had legal representation. This statistic varies across courts and across different types of immigration. In UCLA’s report on the Dedicated Docket in Los Angeles, 70.1% of families on the Dedicated Docket did not have legal representation and only 28% of families were granted asylum compared to 52% on non Dedicated Docket applicants in FY 2022. More information about the differences in representation on the dedicated docket can be found in this report.
The main barriers to retaining a lawyer for asylum proceedings are time and money. For the Dedicated Docket in particular, cases are supposed to be adjudicated within 300 days after the first hearing. This gives respondents limited time to find an available, affordable lawyer to prepare a complicated asylum application. Additionally, since lawyers are not provided by the government, respondents must pay out of pocket or find an attorney willing to work pro bono. Immigration lawyers specializing in asylum can cost thousands of dollars over the course of the process. Many respondents also fall victim to notario fraud - where a non-attorney misrepresents themselves as able to practice law in the United States. In Denver, the immigration court has attempted to mitigate these factors by providing information on free and low-cost lawyers and by granting continuances if the respondent is still searching for a lawyer. However, these low-cost lawyers are often overworked and unable to take on cases. One lawyer we spoke to said they had over 100 cases at the time.
Through our observations and interviews with lawyers and court staff, we have learned that the barriers to accessing counsel go beyond time and financial ability. The barriers faced by asylum seekers include culture, linguistics, attorney capacity, and employment.
In an interview with an immigration attorney specializing in asylum, we learned that one of the main challenges was connecting with respondents after initial contact. This attorney explained to us that in her experience through the Rocky Mountain Immigrant Advocacy Network (RMIAN) respondents often call and do not leave a voicemail or call back number. RMIAN currently doesn’t have the capacity to always have someone available to answer the phone, so those voicemails and callback numbers are crucial for getting in contact with asylum seekers. The attorney mentioned that many do not leave call-back numbers because it is not the cultural norm in their home countries. Another challenge for staying in contact with legal representation and services for asylum seekers may be their inability to keep one phone number or address for the duration of the case. RMIAN has encouraged immigration judges to remind respondents to leave voicemails with call-back numbers when they call during their initial rights advisals. This is especially important since the entire free and low-cost lawyer list in Denver are RMIAN lawyers. From our observations, only a few judges have incorporated this advice. Since the process appears more bureaucratic and objective than it actually is, beyond basic rights and court proceedings immigration judges have a lot of flexibility in the information they share with respondents.
Another barrier to accessing counsel that we observed was linguistic issues. One linguistic challenge that respondents seeking relief face is that all applications must be completed and submitted in English. This requires that applicants who do not understand English find a person or organization capable of translating the document or rely on their attorneys to fill out their documents. Given that the vast majority of families on the docket are from Central America, we also observed that it is often presumed that all respondents are fluent in Spanish. This assumption ignores the indigenous and non-Spanish speaking respondents and places them at a disadvantage in the process. We have seen judges ask a respondent to continue their case in a non-native language (most often Spanish) or issue continuances when the judge was not able to get a translator for the respondent’s native language. In these cases, respondents must either continue in a language that they may not fully understand or have their case delayed. Both of these situations decrease the chance of that respondent finding a lawyer because they aren’t receiving information on how to obtain one in a language or manner they can fully understand.
Attorney capacity is another challenge that can prevent asylum seekers from obtaining representation. Attorneys and other service providers were already operating at organizational capacity prior to the initiation of the Dedicated Docket and services are struggling to adapt with the changes in demand that the docket brings. Through interviews and conversations with immigration attorneys, we learned that the average asylum case takes a minimum of 100 hours of litigation. The high level of commitment each case requires limits the amount of cases that each lawyer can take on at a time. This capacity is further limited for lawyers who provide pro bono or reduced-cost services because of demand and their other obligations. Respondents living outside of metro areas, especially in Colorado also have fewer immigration and asylum lawyers working in their areas resulting in them having to proceed without representation, proceeding with inadequate or incompetent counsel, or traveling to metro areas to try and obtain counsel. Some respondents must travel to Denver for proceedings from out of state because this is the closest immigration court to them which can create an additional barrier to obtaining an attorney.
Inability to be legally employed in the United States is an additional financial barrier to accessing counsel for asylum seekers. According to an immigration attorney, one of the main reasons that lawyers withdraw from cases is non-payment. Asylum seekers are not eligible to apply for work authorization until 150 days after their application has been pending for at least 30 days. This means that they cannot work legally for at least six months after submitting their application. The wait time is often longer because the “clock” can be stopped for several reasons including if the respondent asks for a continuance to find a lawyer. The lack of legal employment poses a barrier to securing a lawyer by preventing them from working to earn the money to cover fees even when reduced. Additionally, if a respondent’s previous attorney withdrew because of non-payment, potential new attorneys are more hesitant to take on the respondent as a client.
Legal representation drastically improves the success rate of asylum cases, but the barriers to retaining a lawyer go beyond the financial and time costs to asylum seekers. The literature combined with our observations and interviews highlights the numerous benefits and barriers to accessing adequate counsel. Universal Representation programs, in 23 cities across the United States including Denver, are working to decrease and eliminate those amount of people facing deportation without attorneys. In addition to the city-operated fund, in 2021 Colorado became the first state to have a statewide, publicly funded immigration legal defense fund. Adequate funding remains a major challenge to these programs and prevents them from having their intended impact. In 2021 the statewide fund only received $100,000 which barely covers the costs of ten immigration lawyers working the minimum (100) number of hours per case at $100 per hour.
The complex nature of the asylum process calls for representation but too often asylum seekers go through the process without the necessary counsel or information. Universal Representation programs need to be expanded and better funded. Strengthening these programs can mitigate many of the challenges we observed to obtaining legal representation. Increasing the variety of languages and availability of translators would eliminate the linguistic barriers that some asylum seekers face in securing counsel.