Asylum seekers need legal help, not generic ‘orientation’

The Executive Office for Immigration Review (EOIR) is soliciting contracts to implement a “Legal Access at the Border” (LAB) program. The solicitation says that the objective of the program is to improve the efficiency and effectiveness of EOIR Immigration Court proceedings by providing legal services to immigrants who are:

(1) In the custody of Customs and Border Protection (CBP);

(2) In, or may be placed in, removal proceedings;

(3) Seeking entry into the United States from locations along the Southwest Border; and

(4) Are in, or may be enrolled in, the Migrant Protection Protocols (MPP), which commonly is known as the “Remain in Mexico” program. 

The “legal services” will include general information and presentations (legal orientation) about options and procedures related to remaining in the United States during the pendency of removal proceedings; and about immigration court practices and procedures, relief from deportation, and other relevant resources. 

Paragraph 9 in an attached statement of work, which is a legally binding document, prohibits contractors from providing legal advice or representation:

“The Contractor shall also verbally notify those receiving Individual Orientations that they are not the unrepresented noncitizen’s legal representatives … Presenters may respond to unrepresented noncitizens’ questions that are general in nature. Presenters may only respond to questions specific to an immigration case … by providing general information or a referral to a legal representative. Individual Orientations and responses to any questions must be general in nature, must not constitute legal advice.”

Immigrants in CBP custody who are facing removal proceedings before an immigration judge have a much greater need for assistance in preparing their cases and representation at their hearings than they do for an orientation program.

Such representation is very important, particularly for asylum seekers: During fiscal 2021, 34 percent of the applications from migrants with representation were granted and only 18 percent of the applications from unrepresented migrants were granted.

Paying for representation

INA section 1229a(b)(4)(A) prohibits the government from paying for lawyers to represent immigrants in removal proceedings. The pertinent part of this section states that, “the alien 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 proceedings” (emphasis added).

But there is an alternative. EOIR has a program for recognizing organizations and accrediting their non-attorney representatives to represent aliens in removal proceeds for a nominal fee, and INA section 1229a(b)(4)(A) does not prohibit the government from providing these organizations with the funds they need to expand their immigration operations. 

The government established the recognition and accreditation program to increase the availability of competent immigration legal representation for low-income and indigent persons, which promotes the effective and efficient administration of justice.

Two levels of accreditation are available. Full accreditation authorizes the accredited representative to represent immigrants in proceedings before DHS, in proceedings before an immigration judge, and in appeals to the Board of Immigration Appeals. Partial accreditation just authorizes them to assist immigrants in proceedings before DHS, such as in applying for an immigration benefit.

Aliens needing low-cost legal representation for removal proceedings or to apply for asylum can find recognized organizations and accredited representatives in their area on the roster of Recognized Organizations and Accredited Representatives. Currently, there are 761 recognized organizations and 1,970 accredited representatives, but only 300 of them have full accreditation.

An organization applying for recognition must establish that it is a Federal, tax-exempt, non-profit religious, charitable, social service, or similar organization; that it provides immigration legal services primarily to low-income and indigent clients; and that, if it charges fees, it has a written policy for accommodating clients who are unable to pay the fees.

And it must establish that it has access to adequate knowledge, information, and experience in all aspects of immigration law and procedure. 

An organization applying for the accreditation of a representative must establish that the representative has the character and fitness needed for representing immigration clients; that he has not been subject to disciplinary proceedings or been convicted of a serious crime; and that he has the necessary knowledge in immigration law and procedures.

Excellent training programs are available to provide representatives with the knowledge they need to represent immigrants in removal proceedings before an immigration judge, such as the Villanova Interdisciplinary Immigration Studies Training for Advocates (VIISTA) — a university-based online certificate program that was established by Michele Pistone, a law professor at Villanova in August 2020, to provides the training immigrant advocates need to become accredited representatives.

VIISTA covers all of the topics needed to become an effective immigrant advocate — such as interviewing, how to work with an interpreter, how to work with migrant children, trial advocacy and, of course, immigration law.

Biden’s promise to maximize legal representation

Biden included maximizing legal representation in his “Blueprint for a Fair, Orderly, and Human Immigration System.” His plan to achieve that objective includes providing $23 million to support legal orientation programs — but orientation programs do not provide legal representation. In fact, the statement of work for the LAB contract solicitation requires orientation presenters to explain that they do not provide legal advice or representation.

Accredited representatives with full accreditation do provide legal advice and legal representation — but there aren’t nearly enough of them now to meet the need for such assistance.

Biden could use the funds he has earmarked for the legal orientation program to provide recognized organizations with the money they need to increase the number of accredited representatives — but a better solution would be for congress to provide the necessary funding.

For many asylum-seeking immigrants, an accredited representative with immigration law training may be their only hope for representation when they appear at their asylum hearings. 

The statistics show it makes a difference.

It also would provide a reality check for immigrants who do not have legitimate persecution claims or any other basis for lawfully residing in the United States.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.