Guest post by Nora Coon, law student at Lewis & Clark Law School, Portland, Oregon. This post is the third installment of the Border Criminologies Themed Week on Teaching Immigration Detention organised by Juliet Stumpf

Lewis & Clark Law School students outside the detention facility in Dilley, Texas, including Themed Week co-author Shannon Garcia (at center).
This second post in our family detention series marshals empirical research on legal representation for asylum seekers to evaluate US constitutional requirements surrounding access to counsel for detained mothers and children. Stephen Meili has described the detention of Central American women and children at facilities in Karnes and Dilley, Texas as the US government has sought to deter a perceived flood of immigrants. Data on deportation rates of asylum-seekers show that legal representation makes a significant difference in immigration proceedings. For detained women and children, it may make all the difference.

Barriers to Effective Representation in Asylum Proceedings

Although US law permits noncitizens to have counsel in asylum proceedings, asylum-seekers have no right to government-appointed counsel unlike a person charged with a crime who has that right. Many states also appoint counsel when the government seeks to confine individuals civilly for mental illness. But an asylum-seeker asserting a right to protection from the threat of death or torture in her home country has no such entitlement to counsel.

Several American legal scholars have suggested that the immigration process may as a matter of fairness—that is, due process—require appointment of counsel. Further, courts have recognized that when aliens do retain counsel, they are entitled to competent assistance of counsel, acknowledging the importance of that assistance. One appellate court noted that immigration law has ‘aptly been called a labyrinth that only a lawyer could navigate,’ and later that ‘representation by competent counsel is particularly important in removal proceedings,’ recognizing that litigants ‘rely heavily on their attorney's advice.’

The effect of legal representation on ultimate outcomes in asylum proceedings suggests that barriers to effective representationmay deprive asylum-seekers of due process by increasing the risk that the US will return persecuted people to dangerous situations. Before the Artesia Project began representing the facility’s asylum-seekers en masse, only 38% of initial credible fear screenings established a credible fear of persecution. That means over 60% of those detained in Artesia were subject to expedited removal because Immigration and Customs Enforcement (ICE) personnel determined that they had no credible fear of persecution upon return to their countries of origin. At that point, few of the women and children detained in Artesia had legal representation. The government deported over 300 unrepresented women and their children from Artesia before they had counsel, and some of those deported asylum-seekers suffered dire consequences as a result.

A detained asylum-seeker in Artesia was almost 100% more likely to succeed in her initial interview if she was represented by an attorney. Once the Artesia Project began providing free representation to all detainees, almost 80% established a credible fear of returning, opening the door to applying for asylum in the United States.

The pace of removals fell in direct proportion to the attorney presence. (Infographic by Jose Cruz-Guadarrama, Innovation Law Lab)
The Artesia Project was an extraordinary moment in pro bono legal representation. But continued detention on the scale now practiced at two facilities in Karnes and Dilley, Texas has left advocates seeking a permanent solution to an extensive need for counsel.

Lack of Appointed Counsel Raises Due Process Concerns

The Artesia example raises serious questions about whether the detention and asylum processes satisfy the US Constitution’s guarantee of due process. American courts assess whether the government has provided constitutionality adequate procedures by balancing (1) the interests of the individual and the injury threatened, (2) the current risk of error and probable value of additional or alternative safeguards, and (3) the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication as established in Matthews v. Eldridge.

1. The Interest of the Individual and the Threatened Injury

The first step of the due process inquiry, considering the interest of the individual and the severity of the threatened injury, weighs heavily in favor of requiring appointed counsel to asylum-seeking detainees. Inadequate process creates a risk that the government will deny valid claims for asylum at the credible fear stage, as well as later at the merits stage. A negative credible fear determination leaves the asylum-seeker in the ‘expedited removal’category with its speedy deportation provisions and limitations on seeking asylum. For legitimate asylum-seekers, erroneous denial of credible fear may have deadly results.

A nationwide study of access to counsel in US immigration courts by Ingrid Eagly and Steven Shafer has revealed that immigrants with attorneys fared better than those without. They concluded that an immigrant with representation, as compared to one without, was 15 times more likely to seek relief from deportation and 5.5 times greater to obtain the relief sought. Eagly and Shafer’s results are consistent with real-world situations such as the Artesia project, where most represented women held at Artesia established a credible fear of harm if returned to their home countries. Similarly, evaluation of a New York State pilot project to provide free counsel in ordinary immigration proceedings found that non-detained individuals with counsel succeeded on their claims 25 times more often thanunrepresented detainees. 

2. The Risk of Error

The serious risk of error inproceedings involving detained asylum-seeking mothers and children weighs significantly in favor of eliminating barriers to effective representation. The data show not only a high risk of future error, but also reasons to suspect past erroneous determinations due to barriers to effective legal representation in asylum proceedings. While attorneys may perform a screening function by pursuing only meritorious claims and encouraging those without valid claims to withdraw applications, that alone cannot account for nearly a 100% improvement in credible fear outcomes. Rather, that change must be attributable, at least in part, to a reduced risk of error for well-represented asylum-seekers.

The nature of asylum proceedings raises a substantial risk of error thatfavorseliminating barriers to effective representation. Individuals unfamiliar with the American legal system must, within a few days of detention, justify their presence in the United States through a credible fear screening. The credible fear screening places an affirmative duty on the government to investigate whether an individual could qualify for asylum. However, the risk remains of erroneously removing qualified asylum-seekers who lack the knowledge or ability to present their asylum cases themselves. The success rates at Artesia—38% without counsel, 80% with counsel—demonstrate that fact.

Asylum-seekers often lack knowledge of the specific legal criteria for asylum under INA § 208(b)(1)(B)(i)—that the persecution they fear is due to ‘race, religion, nationality, membership in a particular social group, or political opinion.’ For example, an individual risks expedited removal if she fails to articulate, as in Jacinto v. INS, that the militia who tortured her husband and threatened to kill her did so because she was part of a minority political group.

3. The Probable Value of Additional/Substitute Safeguards

This factor weighs heavily in favor of requiring appointed counsel to satisfy due process. The Artesia Project has demonstrated the value of one additional safeguard―counsel for asylum-seekers―through the sharp increase in credible fear findings and approval rates. The study by Eagly and Shafer similarly concluded that representation was associated with much higher success rates, but also found that only 14% of detained immigrants secured representation.

Other empirical studies bolster these conclusions. The New York Immigrant Representation Study concluded that when individuals had representation and weren’t detained, they succeeded on their claims 74% of the time. Unrepresented individuals who were detained succeeded on their claims only 3% of the time. Eagly and Shafer concluded that these results were not attributable to counsel screening out weak cases. The extraordinary increase in success rates at Artesia supports this conclusion because every individual at Artesia received representation, no matter the strength of her claim.  Effective legal representation significantly affected the success rate of asylum claims.

4. The Cost of Additional Procedures and the Government’s Interest in Efficient Adjudication

The final factor, assessing the cost of eliminating barriers to counsel for detained asylum seekers and the government’s interest in efficient adjudication, points both ways. The US government has raised concerns that lenient procedures would trigger a ‘flood’ of migrants and introduce inefficiencies in adjudication. However, the government’s interest in accurate administration of its laws weighs in favor of additional procedures.

Assigning an immigration attorney to every asylum-seeker would undoubtedly cost the government a significant amount. But the cost of detention is also high. Further, a system for appointing counsel, or other measures to heighten access to representation, would allow attorneys to advise those without valid asylum claims to voluntarily return home, streamlining the system. Access to counsel might also streamline credible fear interviews and bond and merits hearings. Indeed, Eagly and Shafer concluded that ‘involvement of counsel was associated with certain gains in court efficiency: Represented respondents brought fewer unmeritorious claims, were more likely to bereleased from custody, and, once released, were more likely to appear at their futuredeportation hearings.’ Studying New York’s appointed counsel system for immigrant residents promises a better understanding of the costs and benefits, as will pilot projects in other cities.

Conclusion

Further research is required on on potential due process violations in the asylum system and options for remedy. Specifically, researchers should investigate the extent to which different barriers to effective representation affect outcomes, and what actions might eliminate those barriers. Over 41,000 people sought asylum in the United States in 2014, and still more will apply in 2015. Only with detailed, reliable data can advocates and the government find the best policies to ensure accurate outcomes.

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How to cite this blog post (Harvard style)

Coon, N. (2015) Due Process Concerns in Family Detention. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2015/09/due-process (Accessed [date]).