TRAC: Too Few Immigration Attorneys; EOIR Bars Access to Vital Data

TRAC, Jan. 24, 2024

"There is widespread agreement that the Immigration Court has far too few judges and support staff to handle newly arriving cases let alone process their backlog of cases which has been piling up for decades. While 1,490,480 cases were filed last year, the Court backlog at the end of December 2023 has grown to 3,287,058 cases. More judges alone won’t be sufficient. There is another serious shortage: too few immigration attorneys. As a result, the proportion of immigrants able to find an attorney to represent them in removal proceedings has dropped precipitously. Five years ago, noncitizens had found attorneys in 65 percent of all pending cases in the Court’s backlog. Today, this proportion has dropped to just 30 percent. Yet immigration attorneys are an important ingredient for assuring efficient, not just fair, court proceedings since attorneys play a vital role in alleviating a variety of administrative delays and facilitating a more functional legal process. If an immigrant cannot afford an attorney, the civil Immigration Court system does not provide one as the criminal courts do for indigent defendants. Simple math exposes the challenge of finding representation. The Court backlog has increased more than three-fold since September 2019. This also means that three times as many immigrants need attorneys. However, while the total number of immigrants with representation has increased, those who have found attorneys has only grown by 50 percent. A shortage of immigration attorneys given this meteoric rise in demand should not be unexpected. While there are many barriers to immigrants finding representation, a shortage of available attorneys is a key constraint on why representation rates have plummeted from 65 percent down to 30 percent. ... It is surprising that in this day and age while there are fairly precise counts of the number of Court cases with representation, there are no solid facts on the actual number of attorneys supplying this representation. This information is crucial to understanding not simply the number of immigrants with representation, but the total number of immigration attorneys providing that representation, as well. These data could show whether, and how quickly, the supply of immigration attorneys is also growing compared to the number of immigrants who need representation. This lack of information is not because the data isn't recorded. The same systems that record whether a case is represented also identify the attorney supplying this representation. This information is recorded in Court records in two ways: first by the name and address of the attorney and second by computer-generated anonymous IDs that EOIR databases use to link cases to particular attorneys. Unfortunately, EOIR stopped providing TRAC and other researchers with essential data identifying how many immigration attorneys are representing immigrants in its caseload or even in which state immigration attorneys are based. Even after several years of concerted effort by TRAC which teamed up with other researchers seeking to get EOIR to release these vital details, EOIR has not been willing as yet to provide even anonymous data on attorneys that would permit compiling actual counts at a national level, let alone state-by-state, of the number of attorneys who are representing immigrants in the Court and how these numbers have changed over time. Thus, EOIR’s intransigence prevents meaningfully assessment of how policies, including its own, impact attorney supply and resultant representation rates. Take the following essential research questions that, if answered, could inform public policy and practice. Have attempts to expedite case processing times had an adverse impact on the caseloads that attorneys representing clients take on so that effectively fewer cases end up being represented in aggregate over any period of time? Have programs to suddenly change hearing schedules making workload less predictable for attorneys impacted their caseload size? Have different efforts designed to increase the supply of immigration attorneys actually increased the supply? These questions are unanswerable not because the data is not collected, but because EOIR refuses to share these data with the public."