Universal representation is based on a steadfast belief that everyone deserves due process.

Universal representation means representation for all, regardless of the perceived likelihood of the case succeeding, the client’s residency, or the client’s previous contact with the criminal justice system.^[]For a discussion of the current and historical context for the universal representation model, see Lindsay Nash, “Universal Representation,” Fordham Law Review 87, no. 2 (2018), 503-29, https://perma.cc/8XZ8-CVHC. Without a universal system, such case characteristics can compound the challenges that immigrants in detention face in obtaining counsel.

Universal representation does not predict the outcome of a case, but it does ensure access to due process for all. In contrast, relying on a small pool of available attorneys to represent only those clients with the most winnable or otherwise appealing cases creates a hierarchy of who deserves representation. This limits the likelihood that the most vulnerable people and those with the most challenging cases will ever be represented. It also ensures that cases that could be won with the assistance of an attorney or through vigorous and persistent legal advocacy end instead in deportation. Although selecting cases for representation based on the initial perceived likelihood of success might garner more wins in the short term, this practice undermines the principle that everyone facing deportation should receive due process. Everyone deserves an opportunity to be treated fairly and with dignity, including those who do not even wish to fight their cases.

Universal representation does not permit exclusions from representation based on residency in a particular jurisdiction or based on previous arrests, convictions, or other encounters with the criminal justice system (“due process exclusions”).^[]See Lindsay Nash, “Universal Representation,” 2018, arguing that while some limits on the scope of the coverage in a universal representation model may be justifiable, restrictions like the convictions-based eligibility carveout threaten the most basic underpinnings of the universal representation project. Restricting eligibility to clients who are residents of a jurisdiction has the effect of excluding some of the most vulnerable clients: asylum seekers and youth in detention, who have just arrived in the country and have not yet had the opportunity to establish residency in a community.

Additionally, exclusions based on contact with the criminal justice system run counter to the fundamental principle of due process in accepting and perpetuating the biases baked into the criminal justice system that contribute to system involvement in the first place.^[]Elizabeth Hinton, LeShae Henderson, and Cindy Reed, An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System (New York: Vera Institute of Justice, 2018), https://perma.cc/S3LD-TRAU. Due process exclusions bar people who may have valid legal defenses from even being eligible for representation.

Adopting due process exclusions further eliminates the opportunity to provide a critical check on how the immigration enforcement system treats criminal convictions. For example, although the Department of Homeland Security (DHS) can attempt to deport someone based on a past conviction, DHS’s characterization of that conviction can be inaccurate or insufficient to warrant deportation, often requiring complex legal arguments to challenge DHS’ allegations. An attorney is crucial to holding the government to its burden to prove that the law requires that an individual be deported. Moreover, there are avenues by which criminal convictions can be challenged and overturned—a process that is complicated and likely nearly impossible to do without counsel.^[]Jennifer Stave, Peter Markowitz, Karen Berberich, Tammy Cho, Danny Dubbaneh, Laura Simich, Nina Siulc, and Noelle Smart, Assessing the Impact of Legal Representation on Family and Community Unity (New York: Vera Institute of Justice, 2017), https://perma.cc/3BWE-KSFD.

A universal representation approach challenges these injustices by insisting that representation is about the fundamental fairness to which all human beings are entitled.

Figure 1 below demonstrates the distinction between the people served by a universal representation program and those served by a triage model, where attorneys perform a preliminary review of cases before selecting whom they want to represent. The universal representation system ensures that people with all types of cases and backgrounds have access to expert legal support, preventing prejudice in who receives legal services and promoting fairness for all.

Universal representation safeguards due process by allowing all immigrants to access the rights afforded to them under existing law.

While the universal representation model succeeds by bringing due process to individuals who would otherwise be denied that basic right, it also yields “traditional” successes in the form of positive case outcomes.

Many people in removal proceedings have valid legal claims to remain in the United States but no feasible way to articulate these claims without the assistance of counsel.

Research has consistently demonstrated a strong relationship between the assistance of counsel and case outcomes in general. One study found that detained immigrants are up to 10.5 times more likely to succeed in their legal case when represented than when unrepresented, and other studies have found similar results.^[]Eagly and Shafer, “National Study of Access to Counsel,” 2015, 9. See also Study Group on Immigrant Representation, Accessing Justice, 2011, 19; and Northern California Collaborative for Immigrant Justice, Access to Justice for Immigrant Families and Communities: Study of Legal Representation of Detained Immigrants in Northern California (Palo Alto, CA: 2014), 18, 24, https://perma.cc/P5YK-KBDS.

The universal representation model, specifically, also generates positive outcomes even when cases are not selected based on their perceived likelihood of success. Notwithstanding the lack of screening for likelihood of success, cases accepted under the universal representation model frequently win. Vera’s evaluation of the New York Immigrant Family Unity Project (NYIFUP), the first publicly funded universal representation program in the nation, demonstrated that representation has a significant effect on case outcomes, independent of other factors. Under NYIFUP’s universal representation model, detained immigrants in New York City saw the odds of winning their cases increase by 1,100 percent.^[]Vera found that the chances of a positive outcome went from 4 percent when clients were unrepresented to a projected 48 percent with an attorney. Vera developed a statistical model to estimate outcomes for cases that remained open at the time of the evaluation, given that longer cases are also most likely to win. See Stave et al., Assessing the Impact of Legal Representation, 2017.

The success of NYIFUP demonstrates how universal representation generates positive case outcomes for clients even when such outcomes were initially thought improbable. If not for universal representation, such clients would most likely go unrepresented and eventually be deported. Because their defenses are not immediately apparent from a single legal screening, they would be barred from exercising their legal rights. For example, cases may involve sensitive or traumatic facts a client is not comfortable sharing right away. The case may also contain novel, harder-to-identify issues that can require further legal research or litigating on appeal. Universal representation protects against this unfairness.

The universal representation model can also help legal service providers attain more balanced caseloads. Cases that lack valid defenses or claims for relief, which demand less time and effort from attorneys, can be resolved quickly and removed from caseloads. This frees up resources for cases that require novel arguments or multiple applications and court appearances.

Universal representation enhances procedural justice and restores dignity.

While helping the client remain legally in the United States is often the goal of representation, the universal representation model achieves a different kind of success regardless of the ultimate legal outcome. For clients, obtaining due process and support from someone who can explain their options—a modicum of fairness and dignity in an otherwise daunting immigration system—is, in itself, a substantial success.

Regardless of a case’s ultimate result, there is real value in empowering clients to understand the options before them and subsequent outcomes. Representation gives clients an opportunity to have their voices heard, becoming more actively engaged in their own fate, rather than being silenced. This is known as procedural justice, where the fairness and transparency of the proceedings themselves bring a form of justice regardless of the case outcome.^[]See Steven L. Blader and Tom R. Tyler, “A Four-Component Model of Procedural Justice: Defining the Meaning of a ‘Fair’ Process,” Personality and Social Psychology Bulletin 29, no. 6 (2003), 747-58.

By preserving the fairness of immigration court, representation upholds trust in the legal process and strengthens the legitimacy of the very institution itself.^[]Research has shown that impressions of fairness in interactions with courts, law enforcement, and other authorities can influence perceptions around the quality and ethicality of decision making. See Tom Tyler and Robert Bies, “Beyond Formal Procedures: The Interpersonal Context of Procedural Justice,” in Applied Social Psychology and Organizational Settings, edited by John Carroll, 77-98 (Hillsdale, NJ: Lawrence Erlbaum 1990). Treating clients fairly and respectfully restores their human dignity—a significant departure from the dehumanization that immigrants may have felt up to that point.

That clients and their families recognize that someone is fighting for them and protecting their rights, even if there is no path to avoid deportation, is therefore a critically important value of universal representation. It also promotes trust in public institutions so that residents see their justice systems—from policing to the courts—as delivering on the promise of fairness.

Universal representation is scalable and can begin with a pilot program.

The universal representation model is scalable in a way that a triage model is not. While true universal representation—in which all immigrants are represented in their proceedings—often requires a substantial investment, a jurisdiction can begin with a small pilot program.

A pilot program using a universal representation model funds representation for a limited number of clients selected on a merits-blind basis. A universal representation pilot program lets program managers develop long-term strategic plans and test and identify appropriate levels of staffing, caseloads, and other resources before expanding to serve larger numbers of people with the goal of full-scale universal representation. The early successes of the pilot can further demonstrate the need for and impact of representation, cultivating support that helps the program grow and build on its solid organizational foundation with best practices that can be readily scaled.

Attorneys working under a universal representation model will become accustomed to representing clients in a broad variety of circumstances. They will see themselves as public defenders who understand the challenges of counseling clients with and without defenses. This dexterity of practice makes it easier to scale up the size of a universal representation program than to scale up a program that triages cases.

For example, a triage model can keep attorneys returning to familiar fact patterns and legal issues with which they feel comfortable in an effort to preserve time and resources. This specialization limits the expertise of the legal team, making it far more difficult to expand to meet the needs of the broader client population.

Moreover, a triage model decreases the likelihood that people with complicated criminal justice involvement will be served, perpetuating the injustices of the criminal enforcement system. In contrast, the diversity of experience among lawyers trained in the universal representation model equips them with the skills to support the complex and diverse needs of immigrant communities while promoting fundamental fairness for all people at risk of deportation.

Employing a universal representation model from the inception of a project increases the likelihood of eventual funding for all eligible immigrants in a jurisdiction. There is a clear path from a pilot program implementing a universal representation approach to a full-scale universal representation program. However, starting with, and building on, a triage model creates challenges for scaling up to full universal representation. A triage model means that at a certain level of funding, all those whose cases are considered “winnable” will receive counsel. At that point, policymakers may have a hard time justifying allocating additional resources to deportation defense if they think the outcomes for remaining unrepresented cases are likely to be negative.

Universal representation helps ease the suffering associated with prolonged detention.

For many immigrants, being released from detention may be almost as important as the ultimate legal outcome. People who are accused of being in the country without authorization can be detained for the entire duration of their legal proceedings. Representation is critical to releasing them from custody, just as it is to the ultimate outcome of the case. For those who are represented, the odds of being granted bond are 3.5 times more likely than unrepresented people, even controlling for other factors.^[]Emily Ryo, “Detained: A Study of Immigration Bond Hearings,” Law & Society Review 50, no. 1 (2016), 117-53.

Attorneys play a crucial role in not only securing their clients’ release from custody—allowing them to return to their families and livelihoods in the community—but in ensuring that those clients subsequently appear in court. When the government detains people during their removal proceedings, one of the primary reasons is to ensure that they make their upcoming court appearances.^[]DOJ, Office of the Attorney General, Matter of Patel, I & N Dec. 666 (BIA 1976). Representation aids in this goal: between 2007 and 2012, only 7 percent of represented people were ordered removed in absentia for failing to appear in court, compared to 68 percent of those unrepresented.^[]Eagly and Shafer, “National Study of Access to Counsel,” 2015, 74 & figure 20. Immigrants who fail to appear in court may be ordered deported in absentia for that reason alone, no matter what the merits of the case. Similarly, less than 2 percent of NYIFUP clients released on bond were ordered removed in absentia.^[]Only 10 of the 611 NYIFUP clients released on bond received orders of removal in absentia for failing to appear for a subsequent court date. Stave et al., Assessing the Impact of Legal Representation, 2017, 49, n. 64.

The influence of representation on rates of release has profound, tangible impacts for clients by offsetting the negative impacts of detention. Detention results in loss of income and often in loss of employment, significantly hindering immigrants’ ability to financially support themselves and their families. The financial instability this causes can mean losing housing and access to medical care, often for the entire family, including members who are U.S. citizens. As one immigration lawyer notes, “On almost every case, we represent an entire family.”^[]Stave et al., Assessing the Impact of Legal Representation, 2017, 53. Further, because immigration is a federal system, detainees can be held anywhere in the country, rendering visits to faraway families next to impossible.

Beyond the obvious trauma of separation, children suffer in other ways when their parents are detained or deported. Facing mental health concerns and financial instability in the home, some children may drop out of school.^[]Center for Popular Democracy, Northern Manhattan Coalition for Immigrant Rights, Cardozo School of Law, and Make the Road New York, The New York Immigrant Family Unity Project: Good for Families, Good for Employers, and Good for All New Yorkers (New York: Center for Popular Democracy, 2013), 11-12, https://perma.cc/J37B-YPAB. Given that almost 18 million children living in the United States (one-quarter of all children) have at least one foreign-born parent, the devastating consequences of parental detention and deportation are felt in every corner of the country.^[]Urban Institute, “Children of Immigrants Data Tool,” 2018. Data from the Integrated Public Use Microdata Series datasets drawn from the 2005-2015 American Community Survey, https://perma.cc/7R7Q-75H5.

Universal representation expands access to the economic advantages of representation, is cost-effective, and maintains stability in communities and economies.

Representation generates practical cost savings for communities and the economy at large. These economic ripple effects extend beyond any individual client.

When someone wins a legal case in immigration court, that person also obtains—or maintains, for those with existing legal status—work authorization. Work authorization allows people to participate in the formal economy by holding jobs, generating tax revenue that benefits all levels of government. For example, NYIFUP was estimated to lead to a $2.7 million increase annually in federal, state, and local tax revenue due to clients gaining or maintaining work authorization.^[]Stave et al., Assessing the Impact of Legal Representation, 2017, 55 & 59.

The potential economic benefits of representation in immigration court extend far beyond tax revenue. A report coauthored by the Center for Popular Democracy (CPD) projected that NYIFUP clients who win their legal cases would retain their jobs, likely reducing unnecessary turnover-related costs for employers.^[]Center for Popular Democracy et al., New York Immigrant Family Unity Project, 2013, 5.

Further, available evidence indicates that the unimaginable trauma for children of parental detention and deportation could have unforeseen economic consequences, such as limiting their lifetime earning potential and increasing healthcare-related costs for the state.^[]Ibid. Representation that offsets these negative impacts therefore likely also yields associated economic benefits.

NILC’s report Blazing a Trail suggests that representation reduces financial costs to the federal government associated with prolonged detention.^[]The cost to the U.S. government of detaining a single person is between $119 and $159 per day. See National Immigration Law Center, Blazing a Trail: The Right to Fight for Counsel in Detention and Beyond (Los Angeles: National Immigration Law Center, 2016), 9, https://perma.cc/3SYJ-CUEH. Universal representation would also generate other system efficiencies, such as reducing the time needed to find an attorney and reducing the time those without relief spend languishing in detention.^[]Eagly and Shafer, “National Study of Access to Counsel,” 2015, 59-72.

Universal representation in the immigration system promotes racial equity.

The universal representation model ensures that representation in the immigration system operates in a racially equitable way. Universal representation mitigates bias from the distribution of legal services, whereas a triage model reinforces the notion that some are worthier of due process and representation than others. This perpetuates the unequal treatment of immigrants, disproportionately people of color, who have been previously subjected to contact with the criminal justice system.

The close linkage between the U.S. immigration and criminal justice systems has resulted in disparate impacts on communities of color.^[]See generally The Sentencing Project, “Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System,” April 19, 2018, https://perma.cc/4KLR-2GAA. The unequal treatment of people of color in the criminal justice system is well documented: people of color are more likely to be stopped by police, searched, charged with crimes, prosecuted, and convicted, and are sentenced more severely.^[]Hinton, Henderson, and Reed, Unjust Burden, 2018.

In legislation passed in 1996, Congress linked the immigration system with the criminal justice system more closely than ever, amplifying the effects of this racial inequity. This legislation established harsh new consequences for a broad range of criminal convictions and, in some instances, even for arrests. Contact with the criminal justice system could now result in mandatory detention, ineligibility for certain forms of relief, and permanent bars to re-entering the United States.^[]See Randy Capps, Muzaffar Chishti, Julia Gelatt, et al., Revving Up the Deportation Machinery: Enforcement under Trump and the Pushback (Washington, DC: Migration Policy Institute, 2018), https://perma.cc/DT7N-NZ3K. In addition, local police and federal immigration enforcement now work in tandem with increasing regularity across the country, meaning that routine interactions with the criminal justice system—even without any arrest or conviction—have led to increased numbers of immigrants being referred to immigration authorities and routed into removal proceedings.^[]Ibid.

As the disparate racial impacts of policing, and the criminal justice system more generally, cascade into the immigration system, immigrants of color are disproportionately targeted for immigration enforcement actions. A wrongful arrest on the basis of race can lead easily to deportation.^[]Morgan-Trostle and Zheng, The State of Black Immigrants, 2016. Black people are arrested at 2.5 times the rate of whites. They are more likely than whites to be sentenced to prison and less likely to be sentenced to probation. These disparities exist even when crime rates are the same; for example, although black and white Americans use marijuana at roughly equal rates, black Americans are 3.7 times more likely to be arrested for marijuana possession. Ibid. In this respect, the same prejudices that pervade the criminal justice system extend to the immigration system: black people are more likely than white people to be targeted by police and black immigrants are more likely to face immigration enforcement.^[]Hinton, Henderson, and Reed, Unjust Burden, 2018. Black immigrants comprise 20 percent of immigrants facing deportation on criminal grounds, despite making up only 7 percent of the immigrant population in the United States. In general, 10 percent of all immigrants have criminal grounds for removability. See Morgan-Trostle and Zheng, The State of Black Immigrants Part II, 2016, 20.

Immigrants of color who face detention and deportation on criminal grounds therefore face a double penalty. Denying representation—and thus due process—to individuals with criminal histories therefore compounds this inequity and exacts a triple penalty.