The Right to a Non-Lawyer in Immigration Proceedings

Mark Noferi

Last week, I wrote about the due process and detention provisions of the S. 744 immigration bill, and specifically the possibility of a right to appointed counsel in immigration proceedings (or at least for detainees, as I wrote about in Slate
Wednesday). (The Senate Judiciary Committee seems ready to consider those provisions today). Subsequently, Robert Koulish and I wrote about ICE’s use of risk assessment for detainees—since if ICE’s risk tool is faulty, detention reforms will be naught.

Today, I’ll write about another forward-looking issue. In the coming decade, the U.S. Supreme Court will not only likely consider the right to a lawyer in immigration proceedings, but as a fallback, the right to a non-lawyer representative. The argument is far from hypothetical. Non-lawyers are already widely representing immigrants in the U.S. And as non-lawyer immigration representatives are subjected to increasing professionalization, standards, and oversight, an established “non-lawyer immigration bar” is developing, as already exists in Canada, the U.K., and Australia.

A future Court’s right-to-counsel decision will raise (at least) three sets of questions: constitutional, pedagogical, and empirical. I’ll set out some background, and then briefly summarize these arguments below.

I’ll speak on this issue twice this summer: at the AALS Midyear Meeting in San Diego on a panel with U.C. Davis’ Kevin Johnson (editor of the essential ImmProf Blog), and at the Law and Legal Education in the Americas Conference at University of Detroit-Mercy School of Law. Previously, I spoke about this at the University of the District of Columbia’s Expanding the Civil Right to Counsel: 50 Years After Gideon symposium, with the University of New Hampshire’s Erin Corcoran, and excellently moderated by UDC’s Kristina Campbell, director of their Immigration and Human Rights clinic. (Here’s a video link). I also submitted a comment to the ABA’s Task Force on the Future of Legal Education on the implications of non-lawyer representation on legal education. Thanks also to Linus Chan of DePaul’s immigration clinic, who informed my thoughts. DePaul does great work with accredited representatives in Chicago. Thanks also to Brooklyn Law students Mary Bruch, Molly Kammien, Timothy Poodiack, Elana Rodman, and Tung Sing Wong for excellent research assistance.

***Background. The use and professionalization of U.S. non-lawyer immigration accredited representatives is growing, as advocates seek to increase immigrants’ access to justice. (See Erin Corcoran’s and Careen Shannon’s work). In the U.S., non-lawyers currently provide fairly full legal services in civil immigration proceedings—essentially, everything except an appeal to the federal Circuit. The Board of Immigration Appeals (“BIA”) authorizes over 1,200 “accredited representatives” to represent noncitizens on behalf of “recognized organizations” before the Department of Homeland Security and the Executive Office of Immigration Review (“EOIR”).

The BIA accreditation system essentially encourages on-the-job learning through apprenticeship. To qualify for recognition by the BIA, a non-profit organization may charge no more than nominal fees for immigration services, and must “[have] at its disposal adequate knowledge, information and experience.” Once recognized, an organization may sponsor its employees for accreditation if they demonstrate “good moral character” and “experience and knowledge of immigration and naturalization law and procedure.”

From an access to justice perspective, the question is whether non-lawyers are better than no representation, or whether, as Careen Shannon noted, non-lawyers may “do more harm than good.” Public interest advocates have generally favored non-lawyer representation—in part in reaction to the traditional economic protectionism of the lawyers’ bar, and in part to increase access to justice for the indigent unrepresented. James Greiner and Molly Jennings described the latter rationale as “the idea that every little bit helps, and each little bit helps a little more.” Yet “[p]erhaps, like a small dose of antibiotics, a small amount of lawyering can be ineffective, or even harmful….”

At times, accredited representatives have indeed acted inadequately or negligently. For example, the infamous “Father Bob” Vitaglione took on 761 cases at once, hundreds in which he failed to show or showed up unprepared. U.S. scholars have thus recently emphasized enhanced licensing standards and oversight to encourage higher professionalism and skill in non-lawyer representation. Careen Shannon proposed a model unauthorized practice-of-law statute that would, inter alia, define the practice of immigration law and who can engage in it, strengthen enforcement provisions, encourage BIA accreditation, and establish a trust fund to fund training for accredited representatives. Shannon also suggested a “competency exam” similar to a bar exam, and ongoing training similar to CLE training, in addition to the existing requirements. Erin Corcoran highlighted the BIA requirement that a qualified organization must nominate an individual representative, so as to provide extra layer of oversight over and above an immigration law test.

Thus, U.S. non-lawyer immigrant representation is moving towards the model in place in Canada, the U.K., and Australia. Each has regulated immigration non-lawyer representation, with standards governing practice (for example, ethical rules and requirements of indemnity insurance); oversight mechanisms, such as disciplinary proceedings; and professional organizations, similar to bar associations. (Nor is the U.S. trend towards non-lawyer representation limited to immigration law. For example, Social Security disability and patent and trademark hearings also provide regulated non-lawyer representation, as Erin Corcoran pointed out.)

Constitutional Questions. Constitutionally, the Court will consider whether immigrants (particularly detainees) have a right to counsel. The cases are coming. The ACLU recently hired a Fellow to “help establish a right to appointed counsel for immigration detainees.” And at least for lawful permanent resident noncitizens, it is settled they possess due process rights.

These cases will also raise the sub-question whether nonlawyers suffice for due process. The U.S. Supreme Court has essentially sanctioned non-lawyer representation as a potential “middle ground” between no and full representation, in civil Gideon cases which deprive one of liberty. Recently, in Turner v. Rogers, 131 S. Ct. 2507 (2011), the Court allowed that a non-lawyer social worker might suffice for due process in a civil contempt proceeding—but in a way that opened the door to wider use of non-lawyer representation.

Previously, the Court had sanctioned specialized non-lawyer representation, such as a medical professional, where the particular factual issues were specialized rather than general. Thus, in Vitek v. Jones, 445 U.S. 480, 499-500 (1980), the concurring fifth vote sanctioned specialized non-lawyer representation in psychiatric commitment hearings (i.e. a mental health professional). In Washington v. Harper, 494 U.S. 210 (1990), the Court extended this reasoning to hearings regarding forced medication of mentally disordered prison inmates. But the Turner Court extended this rationale to factual issues more generally, in suggesting that a social worker might suffice to assist the “straightforward” factual determination of indigence.

U.S. immigration proceedings, in which professionalized non-lawyers already practice, may be a candidate for this new middle ground. As I, Ingrid Eagly, Kevin Johnson, and Laura Abel point out, Turner v. Rogers may well support a right to counsel for immigration detainees. Immigration removal proceedings deprive liberty through detention and deportation. And unlike Turner and Vitek, immigration proceedings often involve incredibly complex legal questions, with Government counsel on the other side unlike Turner. That said, the potential politicization of a ruling that provides counsel to immigrants may be the strongest motivation for a “middle ground” approach of non-lawyers. (The Court’s decision not to retroactively extend Padilla v. Kentucky may have been motivated more by politics than law. Denver’s Christopher Lasch suggested as much on this blog.) And practically, if non-lawyers are already practicing in immigration court, the precedent has been set.

The Court may consider the nuances of non-lawyer representation and due process. For example, even though immigration proceedings typically involve much evidence, there are few formal evidentiary rules—which, among other things, may raise the question as to which lawyers’ skills are necessary to ensure due process. (I.e. having taken Evidence in law school, or the ability to test evidence in court?)

Pedagogical Questions. More broadly, the Court’s question might be: If the salient difference between lawyers and non-lawyer representatives is law school, then what does law school add that ensures due process? Or, another way: Does legal education provide value to representation that apprenticeship does not? How much value, regarding what skills? Pedagogically, these questions are old, but constitutionally, they are new.

Pedagogically speaking, the answers to these questions will have profound implications at this time of intense debate regarding the value of law school. If a future Court constitutionally sanctions the current practice of non-lawyer accredited representatives, even in immigration proceedings involving complex legal and evidentiary issues, that might essentially invite a return to the apprenticeship model of legal training and de-emphasize the value of law school. After all, if one desiring to represent immigrants can do so by working for an immigration services organization, without law school debt—why law school?

That said, the development of pedagogically sound skills-based legal education, spurred by the Carnegie report, may train better lawyers today in a way that mere apprenticeship could not, and traditionally did not. For example, the recent trend towards teaching client-centered lawyering, through pedagogically sound experiential and clinical education, may give law school graduates training in advising clients that apprenticeship could not. Law school clinics, given their traditional social justice mission, could also provide specified training to future immigration lawyers—i.e. “soft” skills beyond legal analysis—in a way apprenticeship historically did not.

As these observations suggest, the difference between lawyers and non-lawyers may not be so much “knowing the law,” i.e. traditional legal analysis of statutes. Most lawyers might not know “the [immigration] law” anyway. After all, law schools don’t require immigration law. Even if a lawyer took Immigration I, that could hardly prepare that lawyer for the incredible complexities of applying immigration law to facts in actual practice. Rather, anecdotally, the difference between lawyers and non-lawyers seemingly owes more to inculcated cultural, professional, and ethical norms of being a lawyer. Lawyers, it seems, more often give more complete answers covering all possibilities and satisfying ethical norms, rather than simply giving a solitary answer. Those skills could be learned through apprenticeship. But it’s possible as well that skills-based education, with pedagogically developed self-reflection, teaches those skills better today.

Back to legal education. So, as I put it in March to a room of University of District of Columbia law students: What parts of your legal education made you a better lawyer today than when you entered law school? And what parts are necessary to effectively represent a client in court, to a minimum standard of due process? Was it learning legal analysis? Oral argument? Taking Evidence and learning the Federal Rules, or learning how to test evidence upon cross-examination in your clinical course? Learning how to counsel clients and resolve ethical questions in your clinic or internships? When did you learn that skill – upon doing, or reflecting?

And as legal education moves away from a one-size-fits-all model, could legal education short of three years do the trick, in the Court’s eyes? Some schools are already incorporating two-year J.D.’s. Could a specialized one-year “immigration J.D.,” skills training, and passage of an “immigration bar exam” suffice for due process, even if non-lawyer representation does not?

Empirical Questions. To inform these constitutional and pedagogical questions, there is a real need for empirical research to begin to define and test the adequacy of non-lawyer representatives and legal education programs to train them. Put simply, empirical research is needed as to whether non-lawyers can perform as well as lawyers in immigration proceedings, and which proceedings, in what ways. I.e. of the “three A’s” of lawyers’ skills—analysis, advocacy, and advice—which non-lawyers perform just as well without law school, and which they do not.

Quantitative empirical analysis of outcomes in immigration proceedings—i.e. comparing success rates for those represented by lawyers versus non-lawyers—is an essential first step to test the adequacy of professionalized non-lawyer representation. Recent studies, such as Judge Robert Katzmann’s New York Immigrant Representation Study, have made it clear that representation matters greatly to success in immigration proceedings, at the least. It is surprisingly unclear, though, whether and how much non-lawyer representation matters compared to traditional lawyer representation and pro se attempts to litigate. No one yet has studied whether a non-lawyer accredited representative wins as much in immigration court as a lawyer. (In the Social Security context, as Erin Corcoran noted, older empirical data showed little difference in the success rate for clients represented by a non-lawyer versus a lawyer.)

Secondly, delineation of the lines described above—i.e. which cases require “lawyer’s skills,” and which skills a non-lawyer specialist might capably perform—may be more achievable through long-term qualitative research. This research would follow Laura Abel’s suggestion to conduct “process analysis,” and go beyond traditional access-to-justice research on case outcomes to more specifically research “the tasks involved in litigating a particular case.” Such research might be achieved through more neutral observational vehicles.

Once these empirical questions are answered, further empirical research may inform legal educators’ questions as to whether and how to provide the “limited license” programs described above—i.e. a specialized one-year “immigration J.D.” Legal educators might seek preliminary answers to some of these questions by conducting empirical research on immigration accreditation programs (or others), along the lines of the research proposed above.

***This will be my last post of my guest blogging stint for now. Thank you, César, for giving me this opportunity. It’s great to contribute.

While I have a public forum, I’d like to thank as well the Brooklyn Law students in my inaugural Constitutional Civil Rights and Immigration seminar. These students— Setenay Akdag, Venus Bermudez, Scott Foletta, Gillian Kosinski, Beile Lindner, Erin McKeever, Ari Rosmarin, Svetlana Turova, Rachel Weissman, Tung Sing Wong, Linda Yu, and Liat Zudkewich—considered the most contentious and difficult issues in civil rights and immigration today, and produced a set of groundbreaking papers that push the boundaries of the debate even further. Their papers examined topics like interdisciplinary “crimmigration” and “fammigration” courts; the impact of Secure Communities on domestic violence and school policing; comparisons of detention to international human rights law, or modern immigration law to Jim Crow; and the constitutionality of drivers’ licenses for DACA recipients, inadequate translation in immigration proceedings, poor religious dietary access in detention, deportation for probation violations, English-only laws, and relitigation of criminal facts in immigration courts. As I told them all, teaching a class with students like them in it is what made me want to be a teacher. Thank you all.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.