Expanding Immigrant Justice by Training Professionals

This article begins by explaining the extent of the access to justice problem in immigration and the inability of lawyers to meet the demand for low-cost or pro bono legal representation. The next section suggests a solution to the problem through Department of Justice accredited representatives. That section describes the long-standing regulations authorizing “accredited representatives” to provide legal services to immigrants with applications before the U.S. Citizenship and Immigration Services (Immigration Services) and in removal proceedings before immigration court. The final section puts forth a plan for increasing the pool of accredited representatives through an educational program and surrounding support within the legal services ecosystem.

Demand for Immigration Legal Services Exceeds Supply of Lawyers

Simply put, there are not enough low-cost immigration lawyers or pro bono lawyers to represent the immigrants who need legal representation. Further, there is no realistic prospect that this situation will ever change.

The resulting affront to justice is severe because immigrants without legal representation fare much worse at every stage of the process than those with an advocate. Compared to the success rate of represented immigrants, immigrants without a representative rarely succeed. Indeed, in deportation proceedings, when an immigrant has a representative, the chance of gaining eligible relief is 10 times better.¹

Despite the clear evidence that legal representation matters in immigration proceedings, “only 20.7% of immigrants, including unaccompanied children, had an attorney to assist them in immigration court cases when a removal order was issued.”² This problem is even more acute in rural settings, where most immigration detention centers are located. According to Syracuse University’s TRAC, in some jurisdictions, fewer than 10 percent of immigrants have legal representation.³

It is important to dispel the notion that unrepresented immigrants fail because their cases are weak. Immigration law itself is complex; many lawyers and judges compare the immigration laws to the tax code in terms of its complexity. Immigrants face language and cultural barriers that impede their ability to share their stories with advocates or judges. Having limited knowledge of the applicable legal requirements of their case, unrepresented immigrants often do not know which particular facts are relevant to their claim or how they might collect evidence to substantiate it. In my experience, these obstacles are heightened for refugees and asylum seekers, most of whom are traumatized. In immigration court, especially in asylum cases, refugees are forced to talk about intimate details of their lives, a process they often regard as antithetical to customs, beliefs, and sensibilities about private matters. In my experience, most refugees need lots of help simply to build up the courage and trust to tell their stories of persecution, torture, rape, or violence.

The result is frustration among all participants in the process. Nonrepresented immigrants, of course, who receive negative decisions bear the heaviest burden from this flawed system when those negative decisions might have gone the other way had they been represented. Judges know such cases exist and are frustrated by them as well, but they are constrained by the limits of their role and the unceasing time pressures of their caseload.⁴ Even government lawyers have, on occasion, privately expressed frustration to me that immigrants sometimes lose cases merely because they are unrepresented.

Among these groups, the feelings of frustration are aggravated by the substantial negative consequences of such decisions. In the cases of genuine asylum seekers, deportation back to their home countries in most cases leads to their persecution, torture, or death. In nearly all cases, deportation means parents are torn away from their children, employers lose valued workers, business owners lose their businesses, families lose their homes as well as their sense of security, and communities lose friends and neighbors. Some immigrants are deported to countries unfamiliar to them. Their migration occurred when they were infants or children. They do not speak the languages of their birth countries.

So, what can be done to remedy the flaws in our immigration system? The best solution, in my view, is to eliminate the imbalance between the supply of immigration representatives and demand for immigration legal services. The next section explains how this could be achieved.

Accredited Representatives Can Increase the Supply of Legal Service Providers

The demand side of the imbalance is never going to decrease enough to match the supply of lawyers. But lawyers are not the only representatives available to immigrants. Under decades-old regulations, the Executive Office for Immigration Review (EOIR), the administrative immigration court system within the U.S. Department of Justice (DOJ), and the Department of Homeland Security (DHS) authorize “accredited representatives” to represent clients before the immigration courts and Immigration Services.⁵

Accredited representatives (ARs) are approved by the EOIR’s Office for Legal Assistance Programs (OLAP), which is charged with “increas[ing] the availability of competent immigration legal representation for low-income and indigent persons, thereby promoting the effective and efficient administration of justice.” OLAP recognizes federally tax-exempt, nonprofit organizations to provide low-cost or pro bono legal services to immigrants. These recognized organizations apply to OLAP for approval of their ARs to work or volunteer with them to provide legal assistance to low-income and indigent immigrant clients. In other words, ARs may only provide legal services and representation through DOJ-Recognized Organizations (ROs), nonprofit immigrant-serving legal organizations with the infrastructure and resources to support ARs.

There are two levels of accreditation. The first level consists of partially accredited representatives (PARs), who are authorized to assist immigrants with affirmative applications filed with USCIS. PARs help clients with immigration applications, such as applications for:

• Naturalization.
• Citizenship.
• Adjustment of status.
• Temporary Protected Status (TPS).
• Deferred Action for Childhood Arrivals (DACA).
• Visas for victims of domestic violence, crimes, or human trafficking.
• Affirmative applications for asylum protection.

All of these applications can be signed by a PAR as the legal representative.

The second level consists of fully accredited representatives (FARs), who are authorized to do everything that a PAR can do in proceedings before USCIS and also to represent clients before immigration courts, including the Board of Immigration Appeals (BIA). Before these courts, FARs are authorized to do whatever a lawyer can do, including:

• Enter their appearance as the representative on record.
• Sign legal documents and applications.
• File pleadings.
• Appear in court.
• Sit at counsel table in the courtroom.
• Conduct direct and cross examination of witnesses.
• Make objections and arguments.

Despite the longstanding existence of authorizing regulations, there are fewer than 2,000 ARs nationwide. Of the 1,991 ARs authorized to provide legal services, most (about 1,700) are partially accredited; fewer than 300 are fully accredited to provide legal representation in immigration courts.⁶

A New Strategy for Building a Field of Accredited Representatives

When I speak to faith-based communities, social justice groups, or audiences of undergraduates, I encounter many people who passionately desire to help immigrants. Some of them are helping immigrants, but many others are not sure how to go about it. Their pent-up energy is awaiting concrete expression. They are resources waiting to be tapped and put to work.

In my view, overcoming our reluctance to tap these sources, to release this pent-up energy, is the key to resolving the supply-demand disparity. As noted, an underutilized provision of federal regulatory law allows nonlawyer representatives to help immigrants with their legal problems. Making it easier for nonlawyers to utilize this provision would turn the undirected energy to productive use. We need to connect, and further incentivize, the people who want to offer legal assistance to immigrants with the immigrants who need such help; we need to bridge the gap between them.

For the last five years, I have been dedicating my time to devising a solution to bridge that gap. My goal is to connect all the people who want to become involved in immigration legal representation with a pathway toward providing legal representation as ARs. Overall, I believe the AR authority has historically been underused, despite the huge gaps in access to immigrant justice and the desire by people to help, for two principal reasons:

1. The absence of a comprehensive, cost-effective educational program to train prospective ARs in the knowledge, skills, and values needed to provide practical legal services to immigrant families.
2. The absence of a national ecosystem to recognize, support, and further incentivize ARs as they embark on their new careers.

I explain my strategy for addressing both concerns below.

VIISTA—A New Model for Legal Education

I have been an immigration law professor for more than 20 years, so my initial reaction to the absence of a comprehensive, cost-effective educational program was that I should try building it myself. I understood from the start, however, that there are steep challenges.

I knew that whatever educational program I built needed to be of sufficiently high quality to create confidence in the ability of ARs to provide competent legal services. I also knew that because the supply-demand imbalance is so massive, I would have to operate at scale. A lot of people would have to be educated and accredited to make a meaningful impact on the problem.

When thinking about the education that is needed, I recognized the costs of education, in terms of both tuition and time, should align with anticipated marketplace salaries. If the education is too expensive or too lengthy, the investment in time and cost could become obstacles to getting enough representatives accredited. The costs of traditional in-person legal education price many lawyers who want to provide pro bono or low-cost legal services out of the market. Accordingly, I knew I needed to approach education from a new perspective and employ online learning technologies to design a model that was scalable and could teach large groups of students at low cost. While there are substantial up-front costs associated with designing an online educational program (which costs were funded predominantly through grants from the John D. and Catherine T. MacArthur Foundation, the J.M. Kaplan Fund, the Raskob Foundation for Catholic Activities, Villanova University, and private donors), the costs per student of delivering an asynchronous online education can be maintained at affordable levels that align with students’ expected salary ranges.

With these parameters in mind, I designed and built VIISTA, the Villanova Interdisciplinary Immigration Studies Training for Advocates.⁷ VIISTA is the first-of-its-kind, comprehensive and holistic educational program designed to equip students with the knowledge, skills, and values needed to advocate on behalf of migrants and refugees. VIISTA is interdisciplinary and taught asynchronously online.

VIISTA Is Cost-Effective in Terms of Tuition and Time

An online asynchronous educational model can be scaled and designed to maintain affordable tuition costs that closely align with expected salaries. VIISTA is composed of three stackable modules,⁸ each of which prepares students to add value to the community and results in the grant of a certificate (each module is 14 weeks, divided into two seven-week sessions). The Module 2 program is designed to prepare students to apply for partial accreditation. Students who complete Module 3 can apply to OLAP for full accreditation.

Students report that they work 420–630 hours to complete the entire program (10–15 hours a week, over 42 weeks). Tuition is affordable, at $1,270 per module; a student can take the entire three-module program for $3,810 and complete it in one year. By comparison, tuition at the most expensive private law school in the country, Columbia University School of Law, is more than $225,000 over three years. Fifty-nine students can complete VIISTA for the cost of one law student to attend Columbia. Even public law schools, while more affordable, can price lawyers out of the market for providing low-cost legal services to immigrant communities. For example, tuition for three years at the University of Arizona Rodgers College of Law costs over $77,000; the same tuition costs can send 20 students through the entire VIISTA program in one year.

Online asynchronous models also have the added benefit of being flexible. Nontraditional students, adult learners, and others who cannot attend in-person classes are able to fit this educational program into their schedules. I find that most VIISTA students are most active on days and at times when traditional in-person higher education institutions are closed, which is after 8:00 p.m., on weekends, and on holidays. Students have expressed appreciation for the flexibility of an asynchronous online course because, for them, the alternative is nothing at all.

VIISTA Teaches the Practical Knowledge, Skills, and Values Needed on the Job

Throughout the design process, I focused on making sure students would leave VIISTA with the competencies needed to provide necessary services. Before I started to design the curriculum, I consulted with immigration practitioners, judges, employers, legal service organizations, ARs, prospective students, and many others to identify the competencies ARs must exhibit to represent clients ethically and responsibly. I asked this question: What do accredited representatives need to know, be able to do, and value when providing services to immigrant clients? A long list resulted, which includes a lot of immigration law courses as well as many other subject matter courses needed to provide holistic legal services, including an understanding of the social, economic, and political forces impacting migration decisions; the migrant in history and religious traditions; self and communal care; the immigration ecosystem; case planning and analysis; and professional development. Beyond legal theory, ARs need to understand and be able to practice law. For example, they need to know the elements of each form of immigration benefit or relief and what questions to ask a client to elicit the relevant facts for each. They need to know how to interview a client, provide trauma-informed care, engage in active listening, work with an interpreter, work with expert witnesses, craft case theories, draft direct examination questions, and appreciate cultural differences.

With the list of competencies in hand, I then worked through each competency to appreciate how a student would learn and then demonstrate mastery of each competency. Aligning the educational program to the competencies needed on the job ensures students are exposed to the knowledge, skills, and values most relevant to the practical tasks they are expected to perform on the job. Moreover, when the practical application of knowledge is woven into the educational model, graduates have a better understanding of how information acquired in a formal academic setting applies in real-life practice. As a result, VIISTA graduates are better positioned to hit the ground running and reduce the costs associated with on-the-job training.

A robust accredited representative educational program that is affordable and accessible provides the foundation for the establishment of a widely recognized and accepted career path. It allows for the creation of a positive feedback loop: As ARs gain widespread recognition for their services, others will aspire to follow in their footsteps and those of their predecessors, thus creating generations of ARs. In the end, this is the only way to create enough representatives to solve the problem of underrepresentation.

Building a Career Pathway within a Supportive Ecosystem

Recognition of the AR as a viable alternative career pathway in the law will require building conditions in the legal services ecosystem to support and reward ARs. Fostering those conditions requires a change in mindset among many in the legal services ecosystem. That shift in mindset will come about as we start to recognize we have created and perpetuated a system that keeps many poor and marginalized members of our community on the sidelines. They are subject to the laws but unable to voice their rights under the laws. Moreover, we cannot continue to cling to the false hope that lawyers alone can address all the legal needs in immigration law. Instead, we need to accept that the supply-demand imbalance has prevailed, even worsened, while more lawyers are providing pro bono immigration legal services than ever before. More properly trained and supported ARs are necessary. Let’s invite them into our profession and create conditions to support their development and growth.

Conclusion

Access to legal representation is one of the most critical issues in immigration law today. The supply-demand imbalance between lawyers and immigrants in need of legal representation has persisted for decades, and, by most accounts, it is worsening. Attempts have been made to solve the problem through recruiting more lawyers. Indeed, efforts to engage pro bono lawyers have been commendable. But despite those efforts, the problem persists. Given this history, we should not expect lawyers to solve the problem alone.

Regulatory authority exists for ARs to provide legal representation in administrative immigration matters. Although longstanding, this authority has been underutilized. But it does not need to stay underutilized. In order to flourish, we need to create an ecosystem with an established educational approach in which ARs are widely accepted as a viable and rewarding career path.

VIISTA provides an educational model. It serves as the bridge between passionate champions for immigrant justice eager to help immigrant families and the families in need of immigration legal services. By helping immigrants navigate one of the most complex areas of law in our country, ARs can help make the entire immigration system run more efficiently and effectively. Immigrants benefit from having an advocate because ARs can inform immigrants of their rights and help them determine whether they are eligible for an immigration benefit or relief. Judges benefit because cases in which clients are represented are typically presented to the court in a coherent manner, making it easier for the judge to identify the relevant facts and determine whether relief is available. Society benefits when the rule of law is upheld, and everyone feels confident in a legal system that affords access to justice. For VIISTA and its graduates to flourish, acceptance and encouragement by lawmakers, nongovernmental organizations, members of the private bar, judges, government attorneys, and clients are necessary.

A robust AR program will undoubtedly, as it was intended to do, “increase the availability of competent immigration legal representation for low-income and indigent persons” and further the “effective and efficient administration” of the immigration court system. With a new, vibrant career pathway in law akin to nurse practitioners in the health care industry that attracts competent and ethically responsible advocates, I am hopeful, soon, any immigrant wanting legal representation will have a lawyer or an accredited representative. When these conditions exist, everyone will be confident that justice does prevail in immigration proceedings.

Endnotes

1. Vera Inst. for Just., Rising to the Moment: Advancing the National Movement for University Representation 4 (Dec. 2020), https://www.vera.org/downloads/publications/rising-to-the-moment.pdf. One might reasonably expect the disparity in outcomes between represented and nonrepresented immigrants extends as well to noncourt immigration applications before USCIS. I am not aware, however, of any study that has confirmed this.

2. Immigration Courts Now Face Backlog of Over 1.5 million Cases, TRAC (Dec 20, 2021), https://trac.syr.edu/whatsnew/email.211220.html. In some jurisdictions, the likelihood of success on the merits is miniscule for those without representation. For example, in the El Paso, Texas, Immigration Court, only 50 of the 2002 immigrants granted relief were not represented. See State and County Details on Deportation Proceedings in Immigration Court, TRAC (Dec. 2021), https://trac.syr.edu/phptools/immigration/nta.

3. State and County Details on Deportation Proceedings, supra note 2.

4. As the EOIR director recently explained, “[c]ompetent legal representation provides the court with a clearer record and can save hearing time through more focused testimony and evidence, which in turn allows the judge to make better-informed and more expeditious rulings.” David Neal, Encouraging and Facilitating Pro Bono Legal Services, DM 22-01 (Nov. 5, 2021), https://www.justice.gov/eoir/book/file/1446651/download.

5. Accredited representatives are not authorized to represent immigrants in state or federal district or appellate courts.

6. The list of all accredited representatives is publicly available at Recognition & Accreditation (R&A) Program, U.S. Dep’t of Just., https://www.justice.gov/eoir/recognition-accreditation-roster-reports.

7. More information can be found at immigrantadvocate.villanova.edu.

8. The stackable design means that prospective students with relevant work experience can waive a module and start in Module 2 or 3, depending on their experience.