On May 18, the Biden administration issued a memorandum seeking to expand access to legal representation for many of the nation’s underrepresented groups, including unaccompanied children seeking asylum.
The shifts outlined in the Biden administration memorandum are a positive step. Still, we must do more to ensure that all asylum seekers — particularly the most vulnerable — can seek legal advice to effectively and efficiently convey their asylum claims. Even as the Biden team plans systematic reform of the U.S. asylum system to improve claim processing, access to legal representation must remain a priority.
What is asylum?
In 1968, the U.S. acceded to the United Nations Protocol Relating to the Status of Refugees, enshrining a legal responsibility to provide protection to foreign nationals unable to return to their countries of origin. Under this protocol, protections are predicated on a well-established fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The U.S. later codified the protocol and its guaranteed protections into domestic law with the Refugee Act of 1980.
The legal system for asylum adjudication is unlike our criminal justice system, even though the U.S. detains many asylum seekers before their initial hearing. In the immigration courts, the burden of proof lies with the immigrant rather than the government. Thus, while criminal defendants are presumed innocent until proven guilty, asylum seekers must rebut the presumption that they do not need protection in the U.S. And while criminal defendants are entitled to a lawyer free of charge if they cannot afford one, asylum seekers have no such right.
Asylum seekers must prove their case before an Executive Office for Immigration Review judge and against a U.S. government attorney from Immigration and Customs Enforcement (ICE). Without an indigent legal representation program for immigrants in the system, asylum seekers must represent themselves unless they have the means to pay for counsel or have access to pro bono resources.
The current system of representation
Because asylum seekers are not guaranteed representation, they must rely on a sparse system of pro bono services to access legal assistance. Organizations like Human Rights First, the National Immigrant Justice Center, and the American Immigration Lawyers Association provide services to asylum seekers. Faith-based groups like Justice for Our Neighbors also provide pro bono legal services, but they are often concentrated geographically around cities and have limited resources.
Though hundreds of legal aid organizations exist to serve asylum seekers, the ad hoc representation by nonprofits presents many challenges. These organizations find themselves stretched thin, without the capacity to meet the demands of surging application numbers and a rising backlog.
In the past, the federal government has offered programs that provide legal representation to vulnerable populations in immigration courts. As an example, the Executive Office of Immigration Review launched the National Qualified Representative Program in 2013 to match detained migrants with mental disabilities with lawyers. However, the program relies on federal staff and contractors and serves just a small number of asylum seekers.
We need a better system for asylum seekers to effectively make their case for asylum, including equal access for people from all localities, countries of origin, and languages.
Unrepresented asylum seekers
Without legal counsel, asylum seekers face an uphill battle. Of those without representation, only 1 in 10 claimants ultimately win their asylum case. In contrast, those represented by counsel are at least three times more likely to have their claims approved.
This difference is largely due to attorneys informing their clients which experiences are pertinent for an asylum officer to hear and which are not. Unfortunately, over the last decade, a meaningful proportion of asylum seekers in the U.S. have not had access to this invaluable context provided by legal counsel about the asylum process. On account of this deficiency, several thousand asylum seekers are likely deported each year despite the circumstances of their case warranting asylum protections.
One key factor in determining an asylum seeker’s ability to secure representation is whether they are in federal detention at the time of their hearing. Unfortunately, in recent years, the United States has expanded the use of arbitrary and indefinite detention of asylum seekers for the duration of their legal proceedings, a practice out of step with UNHCR guidelines on the subject. While an asylum seeker can be detained without being accused of having broken any laws, being behind bars has a marked impact on how their cases ultimately turn out.
Rates of legal representation are substantially lower for asylum seekers in detention. As shown in a 2020 recent San Diego Union-Tribune study, asylum seekers in detention are far more likely to be deported than those never detained. Many detainees without lawyers never begin the asylum process in the first place.
Securing legal counsel proves difficult for detained asylum seekers because communication and meetings are difficult to arrange and because they cannot work to pay their legal fees. Free legal services are limited. A 2015 report by the University of Pennsylvania found that pro bono lawyers made up only 7 percent of all counsel in immigration courts. The sheer scarcity of volunteer counsel prevents asylum seekers from lower socio-economic status from accessing legal services.
The locality of the asylum case also plays a role in the outcome. Approval ratings swing wildly from one U.S. court district to another, both because of varying rates of legal representation and because of the biases of the courts themselves. For example, judges in the Southern Fifth Circuit ordered three out of four asylum seekers deported between 2009 and 2018, while asylum seekers in the Northeastern Second Circuit were deported in only one out of three cases.
The locality of the case also impacts the access of asylum seekers to legal representation. According to a study by the American Immigration Council, asylum seekers whose court hearings were held in small cities had markedly lower rates of legal representation than those in large cities.
Country-of-origin discrepancies also exist within the asylum system. Claimants from countries such as Mexico, Honduras, and El Salvador have far lower acceptance rates for asylum applications than those from other states. Mexico had the lowest asylum claim acceptance rate of any country, with 88 percent of all claims rejected in 2017. In comparison, only 20 percent of applicants from China were rejected.
In large part, these discrepancies are due to stark contrasts in rates of asylee detention and legal representation, as well as the political realities of requesting asylum from one country versus another. Between 2011 and 2017, asylum status was granted to over 31,000 Chinese nationals — the highest number of any nationality. The discriminatory policies of the Chinese government certainly play a role in raising asylum acceptance rates, providing compelling arguments for asylum protection upon arrival in the U.S. At the same time, Chinese asylum claimants had a legal representation rate of over 95 percent as well as the lowest detention rate of any nationality, substantially improving the prospects of their claims for acceptance.
Asylum seekers also face barriers related to language as they navigate the court system. Though the government employs interpreters, access to translation for less common, indigenous languages remains a challenge. In 2017, 75 percent of immigration cases were held in Spanish, but indigenous languages are on the rise. By 2018 Mayan indigenous languages were among the top 15 immigration court languages. Limited availability of interpreters for indigenous languages poses due process concerns, including case postponement.
Possible solutions and upcoming changes
Due process under the law stands as a bedrock U.S. value, but asylum seekers do not currently receive due process as they move through the asylum system. The greatest threat: lack of access to legal representation.
The U.S. government could significantly increase access to legal representation by providing federal funding for counsel. The asylum process should not rely on a “good Samaritan” model of pro bono services; asylum seekers should have equal and fair access to legal representation. Providing federal funding for representation would enable legal organizations to take on increased cases in a sustainable way.
In the coming years, the Biden administration is planning radical changes to how the U.S. asylum system operates: The authority over individual asylum decisions will be shifted to asylum officers instead of immigration judges. Even as such changes will drastically alter the U.S asylum system, improving access to legal representation will remain a critical issue. Expanding access to legal counsel is a comparatively minor shift, but it has the potential to deliver wide-ranging benefits to both asylum seekers as well as countless others attempting to navigate the U.S. legal system alone.
Inadequate access to quality legal representation has hampered the U.S. asylum system for many years. As a result, innumerable migrants have been deported despite having credible cases for asylum.
Requesting asylum is an act that fundamentally upends one’s life. It means surrendering any hopes of returning to one’s country of origin to begin anew in the United States. Many migrants, still shaken by the trauma of persecution faced in their countries of origin, are then expected to navigate the U.S. system of asylum alone — an imposing task regardless of one’s background. The United States should do more to accommodate these populations, ensuring that they have a fair chance at securing legal asylum status.