Due to limited capacity and a legal system that undermines access to representation, many immigration attorneys have historically engaged in some level of “triage,” performing a preliminary review of cases before selecting clients they can represent. Universal representation programs that employ a merits-blind intake system diverge from this approach.

Universal representation requires a “public defender” mindset

Establishing these new models often requires a culture shift for providers, as well as for CBOs that also may engage in a form of triage or prioritization when referring people to legal programs. For providers, it is imperative to create and sustain a practice team and work culture that centers the values that everyone deserves due process and deserves to be treated with dignity, regardless of their history or the specific facts of their case or likelihood of success. These programs provide attorneys the opportunity to embody the values of public defense by ensuring that the government cannot exercise its incredible power and authority with impunity. Providers should safeguard against the government taking away a person’s freedom without meeting the burden of proof to do so. This ethos, combined with the perspective that everyone deserves due process, forms the basis of the public defender and universal representation culture.

This approach involves more than a commitment to a certain mindset; it also has implications for the culture of a provider’s practice. Zealously pursuing any and all means by which a person may legally fight their case requires attorneys to have a dexterity of practice and pursue legal arguments beyond those to which they may have previously been accustomed.^[]American Bar Association, “Model Rules of Professional Conduct: Preamble & Scope,” https://perma.cc/SQ7M-M4U6. For example, organizations that previously prioritized clients who had strong claims for relief may need to strengthen or expand their repertoire of defensive tactics. These new approaches may include challenging the allegations on the initial charging document (“Notice to Appear”) and disputing the constitutionality of the way ICE made the arrest or obtained evidence. Although the legal outcome of a case is not the only metric by which “success” is measured, zealous representation can often generate positive outcomes for clients even when such outcomes were initially thought improbable upon an initial consultation. (See “Redefining ‘success.’”)^[]For more information, see Karen Berberich, Annie Chen, Corey Lazar, et al., Advancing Universal Representation: A Toolkit—Module 1: The Case for Universal Representation (New York: Vera Institute of Justice, 2018), https://www.vera.org/advancing-universal-representation-toolkit/the-case-for-universal-representation-1.

Although universal representation will surely result in traditional “wins” allowing people to remain in the United States, many cases will end differently. Providers must embrace a broader definition of success, one measured not by a judge’s decision but by the degree to which due process and human dignity are protected in a system that undermines both. As Ellen Pachnanda of Brooklyn Defender Services told Vera, “We encourage our team to look at every moment we stand with our clients in court as a success. In a system that is designed to deprive clients of humanity, there is nothing more profound than standing with our clients to fight that system.”^[]Ellen Pachnanda, supervising attorney, Brooklyn Defender Services, November 1, 2020, via e-mail.

Attorneys cannot guarantee that their clients will achieve a desired outcome, but they can typically control whether clients are able to make informed decisions and meaningfully participate in their own legal cases. While attorneys need to be prepared to make every possible argument for a client to remain in the United States, including checking the excesses of government enforcement and holding the government to its burden, they must also be ready to seek orders of voluntary departure or removal if that is what a client wants—particularly if the alternative is to remain detained for a prolonged period. Attorneys can still support their clients by engaging in departure planning to help them and their families prepare for deportation.^[]Although departure planning can take many forms, it might include activities such as contacting family members, arranging for the care and custody of children, preparing resource packets, encouraging clients to think about next steps after removal or connecting them with repatriation shelters in their home countries, communicating with consulates, and coordinating luggage with ICE.

Although difficult to measure in part because immigration detention and courts remain unjust even with counsel, “success” could be assessed by whether a client felt that their attorney treated them with dignity and respect during what is an otherwise inhumane process and whether they felt able to make informed decisions in their own case. Viewing success this way is critical to the culture shift required under universal representation because it centers the client’s interests and personhood and can help promote staff satisfaction and retention. (See “Staffing and managing legal teams” for more on staff satisfaction.)

Training can help foster a culture of zealous defense

Providers can help foster this culture shift through training opportunities on substantive legal issues and other critical development areas. This ongoing training helps ensure that staff can adapt to rapidly changing areas of law, have the skills to deploy zealousness in their defense, understand the intersection between criminal and immigration law, and hone trial skills needed to navigate a hostile and complex court system. Experts within the organization or external trainers can provide the trainings. Participation in national networks—such as the SAFE Initiative or the Catholic Legal Immigration Network, Inc. (CLINIC)—can increase access to substantive legal trainings tailored to the needs of a universal representation program and can be particularly important in supporting staff at smaller programs that do not have the benefit of the training and mentoring infrastructure of a bigger organization.

Trainings can also address strengthening organizational culture, such as on racial equity and the intersection of race, criminalization, and the immigration system; and on the concerns facing Black immigrants and immigrants of color, as well as Black staff and other staff of color. Organizations may wish to engage in advocacy trainings to help their legal teams understand how to elevate the stories of clients, their families, and other directly impacted community members. Trainings on “movement lawyering”—situating legal services within a theory of change in which lawyers take direction from directly impacted people—may also be particularly helpful.^[]For more information about training on movement lawyering, see Movement Law Lab’s resources and training series at https://movementlawlab.org.

The universal representation model affects the entire immigration system

While any model of representation provides the opportunity to develop new case law—yielding benefits beyond any one person—it is the ingenuity and dexterity of practice required under universal representation that makes its impact on case law unique. Because the model means representing people whose cases might not otherwise have been selected, attorneys have more opportunities to push the envelope, present novel arguments, and challenge existing law in ways that benefit a broader range of people. As attorneys pursue and win novel legal arguments with more regularity, other people—including those who remain unrepresented—will benefit from the legal precedent developed.

Further, the culture of the entire court shifts when there is a more consistent presence and higher volume of defense attorneys holding the government to its burden. Under this scrutiny, the government is increasingly forced to meet its burden of proving that it has authority under existing law to deport someone and that the deportation has been pursued in lawful ways. Immigration judges grow accustomed to lawyers appearing on behalf of all types of cases and presenting a wider range of claims, not just those of people with financial means or who were selected because their case seemed strong or otherwise compelling. This can also ultimately change the culture and practice of the entire bar by demonstrating that novel defensive arguments can succeed.

Overall, the presence of attorneys forces the court to operate in a more just and equitable way, though much more needs to be done to truly transform the system. Immigration judges agree; in an interview published in Vera’s Evaluation of the New York Immigrant Family Unity Project, Sarah Burr, a retired assistant chief immigration judge, noted, “In order to have due process, you have to have representation of all of the parties before a judge.”^[]Stave, Markowitz, Berberich, et al., Evaluation of the New York Immigrant Family Unity Project, 2017, 31, https://perma.cc/BAB5-JFKG. Judge Robert Weisel, who also held that position and was quoted in the same report, commented that the presence of NYIFUP attorneys in the courtroom “raised the bar.”^[]Ibid., 45. As judges and ICE counsel adjust to the realities of having attorneys on all types of cases, due process is strengthened.