https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3885995
Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings
Law & Society Review
63 Pages Posted: 15 Jul 2021
University of Southern California Gould School of Law
University of California, Los Angeles (UCLA)
Date Written: July 13, 2021
Abstract
Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.
Keywords: access to justice, immigration courts, removal proceedings, judicial decisionmaking
Suggested Citation:
Ryo, Emily and Peacock, Ian, Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings (July 13, 2021). Law & Society Review, Available at SSRN: https://ssrn.com/abstract=3885995
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Some things to consider:
- Sessions and Barr appointed over half of the current approximately 550 U.S. Immigration Judges;
- Many of those appointed had little or no immigration experience — almost none had actual experience representing asylum seekers or any other migrants in Immigration Court;
- With 27 IJ appointments since taking office, AG Garland now has appointed approximately 5% of the Immigration Judiciary;
- Only one of Garland’s first 27 appointments has impressive progressive immigration credentials and experience;
- The balance of Garland’s appointees to date profile much like Sessions’s and Barr’s — not surprising, because Garland used the same flawed recruiting and selection criteria that Barr had been using;
- The average U.S. District Judge completes approximately 250 civil matters annually (including immigration matters), https://trac.syr.edu/tracreports/judge/501/;
- An Immigration Judge is required to complete 700 cases annually, just too retain his or her job;
- Unlike most civil cases in U.S. District Courts, lives and futures are at stake in almost all Immigration Court cases, with the family, communal, economic, and societal effect of each decision often extending far beyond the individual migrant whose life and/or future is at stake.
Members of the NDPA, let AG Garland, VP Harris, and President Biden know that we need a better and more aggressively progressive system for recruiting (virtually “null” right now — “Sir Jeffrey” Chase and I, along with other members of our Round Table, do more “recruiting” among “practical scholars and progressive experts” in the private sector than the Administration!), selecting, training, and retaining Immigration Judges for these life or death determining positions that, in a better functioning and wiser Administration, would be the door to, and training ground for, a better, more diverse, more representative, more progressive Article III Judiciary!
Lack of creative and aggressive recruiting for a better and more diverse expert Immigration Judiciary is a particular sore point! We now have our first immigrant family, African-American, AAPI, female Vice President, Kamala Harris, a talented lawyer! She has an important immigration and human rights portfolio!
So why isn’t she out there aggressively encouraging diverse, well-qualified, progressive “practical scholars and immigration advocates,” many of whom might not have seen themselves as potential Immigration Judges and BIA Members to apply for these critical jobs? Why aren’t the recruiting and selection criteria for IJs and Board Members both more transparent and involving of some outside expert input!
As VP Harris knows, the key to changing the composition of the power structure is for progressives, particularly female progressives of color, to see others like them in these positions to act as role models. It’s going to take aggressive positive actions by individuals like VP Harris, AAG Gupta, and Assistant AG Clarke to “change the face” of the Immigration Judiciary and the power structure for the better!
With the recent hiring of NDPA superstar Professor Cori Alonso Yoder, VP Harris’s alma mater, Howard University Law, now has it’s most high-profile “immigration and human rights presence” ever! Why isn’t VP Harris over there aggressively encouraging Howard Law grads to seek careers in immigration and human rights, eventually aspiring to the the Federal Judiciary, including the Immigration Judiciary? That’s how real change in the power structure happens!
This is becoming a totally inexcusable “blown opportunity” for progressives! Who knows if or when it will come again?
🇺🇸Due Process Forever!
PWS
07-30-21