Public Funding for Immigration Legal Services

Summary

Since 2013, jurisdictions around the country have sought to better support their immigrant residents by allocating public funding for immigration legal services. This support has ranged from $100,000 in the City of Baltimore to $45 million in the State of California. The models have also varied widely, with some jurisdictions focusing exclusively on aiding immigrants in removal proceedings and others seeking to provide holistic support to the entire immigrant community through outreach efforts, mental health support and assistance with affirmative petitions.

These efforts were initially limited to a handful of large cities, but after former President Trump was elected on an anti-immigrant platform in 2016, states and cities across the country rushed to launch their own initiatives, both in preparation for additional enforcement and as a form of defiance against the incoming Trump administration. At present, more than a dozen cities, counties and states have piloted such programs and several national advocacy networks have begun mobilizing grassroots support for additional programs nationwide.

Background and History

The Sixth Amendment to the U.S. Constitution guarantees all criminal defendants a right to counsel “at or after the time that judicial proceedings have been initiated against him.”[1] However, this right does not extend to immigrants with cases in immigration court, as those proceedings are administrative, not criminal. For this reason, immigrants in removal proceedings—including those in detention—are not afforded lawyers. They must secure their own representation, often at their own expense, or defend themselves pro se against seasoned litigators working for the federal government.

In 2011, Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit commissioned a study on immigrants’ access to representation in removal proceedings in New York State. The ensuing report found that only 40% of detained immigrants had counsel at the time their case was completed. Those without legal representation had a success rate of 3% as compared to 18% for those who did have lawyers. This disparity remained for immigrants who were not detained; those with legal representation had a 74% success rate compared to 13% for those who were unrepresented.[2]

It is important to note that there is some selection bias inherent in this disparity: attorneys and non-profits alike elect to represent clients with the best chances of success. However, the authors of the New York Immigrant Representation Study were convinced that much of this disparity could be eradicated if immigrants were afforded universal representation in their removal proceedings. This prompted a coalition of non-profits to launch the New York Immigrant Family Unity Project (NYIFUP) in 2013, with $550,000 in funding from the New York City Council.[3]

This pilot project was the first of its kind in the country, but its early successes have prompted more than a dozen jurisdictions to implement similar programs across the U.S.

Overview of Various Immigration Legal Service Programs

Across the country, jurisdictions have taken many approaches to providing public funding for immigration legal services. Public funding has also varied significantly, with some cities providing a few hundred thousand dollars and others dedicating millions.

1. New York and San Francisco: Public funding for universal representation for immigrants in detention

As described above, New York City was the first to pilot a large-scale representation model for those in immigration detention. Under that model, $550,000 allocated by the New York City Council funded two public defender offices and one nonprofit specializing in criminal defense to represent indigent New York City residents held in immigration detention. The City Council has since increased funding each year, allocating $16.6 million in FY 2020.[4] This program, which aims to guarantee universal representation to immigrants in detention, is viewed as an extension of the public defender service and cases are handled much as they would be in the criminal court system. Public defenders appeal for their immigrant clients’ release at bond hearings, file all necessary paperwork on behalf of their clients and plead their case in immigration court when the time comes. Most notably, under this model, the services are extended based solely on need and not based on the likely outcome of the case. This model also provides representation regardless of the detainee’s criminal history.

San Francisco adopted a similar model in 2017, providing $200,000 to the public defender’s office to pilot a universal representation program for immigrants in detention in the Bay Area.[5] The City Council quickly followed with an additional $1 million to the public defender’s office in 2018, accompanied by $2.5 million to a coalition of nonprofits to provide additional support to immigrants in removal proceedings.[6] Nonprofit immigration legal service providers in San Francisco have repeatedly advocated for the continuation of the program,[7] arguing that public defenders are best positioned to handle the complexities of the detention and court systems.[8]

2. Seattle, Chicago and D.C.: Public funding for immigrant-serving nonprofits

Other jurisdictions opt to provide legal services through direct funding of nonprofits that serve immigrants. In recent years, Seattle, Chicago and Washington, D.C. all announced significant funding for immigrant-serving nonprofits, as opposed to funding public defenders.

Since 2017, Seattle has provided approximately $1 million annually in combined city and county funding to a coalition of nonprofits to provide representation to immigrants in detention and/or removal proceedings.[9] In some ways, Seattle’s program resembles that of New York City and San Francisco, in that it aims to provide universal representation to immigrants in removal proceedings. However, unlike those programs, the funding goes directly to organizations specializing in immigration law and advocacy rather than to public defenders who specialize in criminal law.

Chicago and Washington D.C. similarly direct public funds to immigration nonprofits but have taken a more expansive approach in their programs. Beyond removal defense, their programs also provide for outreach and education, case management support, and assistance with affirmative immigration petitions and naturalization.[10]

In Washington D.C., Mayor Muriel Bowser indicated that funding hypothetically could be used to support lawsuits challenging potential Trump administration efforts to deport Dreamers.[11] Noting the breadth of the D.C. program, some advocates urged that D.C. focus additional resources on representation in removal proceedings and channel additional funding to organizations providing detention defense services.[12] In response, Bowser announced $2.5 million in funding in 2020—a five-fold budget increase from 2017—and earmarked part of it for immigrants in detention.

For its part, Chicago’s Legal Protection Fund—with a budget of more than $1 million in annual city funding—doesn’t focus on detention and removal representation at all. Instead, it focuses on providing “Know Your Rights” trainings, screening immigrants for potential immigration relief proactively, and providing them with case management support.[13]

3. Baltimore, Denver and Los Angeles: Public-private partnerships

Other jurisdictions have adopted yet another model to fund immigration legal services—a public-private partnership model. These programs allow states, cities and counties to leverages public funds to secure additional contributions from private philanthropy. Baltimore and Denver, for example, used this model to extend the reach of their relatively modest budgets—$100,000 and $250,000 respectively—securing matching funding from private donors to support representation for immigrants in detention and removal proceedings, as well as assistance with affirmative petitions and work authorization renewals. Denver has since been able to secure additional city funding by demonstrating the efficacy of the pilot project.

Los Angeles also utilized this approach, leveraging $2 million from the city and $3 million from the county to secure a matching pledge of $5 million from private philanthropy.[14] However, as of May 2019, private donors had only contributed half of what they had promised, leaving city council members to question the sustainability of this model.[15]

4. California and New York: Statewide programs

States have also begun to pioneer immigration legal aid programs at the statewide level. In 2014, the California legislature provided $15 million in funding to establish the One California program, a fund to support a network of nonprofits across the state in providing education, outreach and assistance with naturalization and affirmative petitions to immigrant residents.[16] In so doing, it became the first state to pledge tax dollars to support immigration legal services. In 2017, California legislature increased funding for One California to $45 million and expanded the scope of services to include removal and detention defense, although it stopped short of aiming for universal representation.

Also in 2017, the State of New York announced the creation of the Liberty Defense Project, a fund of $11 million to support immigrant legal services statewide.[17] This fund supported the expansion of the aforementioned New York Family Unity Project to allow for universal representation for immigrants in detention statewide, becoming the first (and as of this writing, the only) state to do so.[18] It also provided support for other nonprofits to conduct outreach and “Know Your Rights” trainings, provide free legal consultations and screenings, and assist with affirmative immigration petitions across the state.[19]

Results and Observations

1. Outcomes

It is difficult currently to draw conclusions regarding the cost-effectiveness of each of the various models employed. There is significant variation across jurisdictions in the types of cases serviced. Cases for migrants in detention are far more complex and costly to represent than simple DACA renewals or affirmative family-based petitions, and some jurisdictions categorized these services together in their case counts, making it difficult to compare them to jurisdictions like New York City or San Francisco that exclusively serve cases in detention.

Because most of these programs are only in their third or fourth year in operation and immigration court cases can take several years to be adjudicated, most programs described in this article have not yet completed evaluations of their programs and/or do not have sufficient data on case outcomes to draw meaningful conclusions. New York City’s Family Unity Project is a notable exception, in that it launched more than seven years ago.

The Vera Institute conducted a thorough impact evaluation of that program in 2017, demonstrating remarkable results. The Vera study found that the Family Unity Project’s cases had a 48% success rate, representing a dramatic improvement over the 4% success rate of unrepresented immigrants in detention before the launch of the Family Unity Project. Of note, this success rate was slightly higher than the success rate of represented cases in detention prior to the start of the program (42%),[20] suggesting that the Family Unity Project might be erasing previous disparities in case outcomes between those who could afford counsel and those who could not.

These findings are especially significant because the Family Unity Project provides universal representation regardless of the expected strength of the client’s case or of the client’s criminal history or background, eliminating questions of selection bias that otherwise could potentially undermine positive results.

Los Angeles’ program demonstrated similarly promising results, with a reported preliminary 62% success rate for their cases after two years. Unlike New York City’s program, however, Los Angeles data includes affirmative petitions together with cases in removal proceedings, which makes a direct comparison difficult.[21] While the remaining jurisdictions have yet to conduct full-scale impact evaluations, early evidence suggests that providing public funding for immigrant legal services improves case outcomes for those who would otherwise not be represented and reduces disparities between those who can afford counsel and those who cannot.

2. Funding fluctuations

One common theme across jurisdictions was uncertainty in funding. While some programs, such as in Los Angeles, received multi-year funding, most depended on annual appropriations from either the city, county or state—and in some cases, all three levels of government. In many cases, programs faced the specter of annual budget cuts and had to lobby to maintain existing funding levels. While most have avoided significant budget cuts to this point, the uncertainty undoubtedly has made operational planning difficult.[22]

Fluctuations are likely to remain a constant for programs like these, in part because in many jurisdictions, they are unquestionably tied to the politics of the moment. Because many of these programs were launched in reaction to the Trump administration policies and rhetoric, enthusiasm for the programs could wane now that a new administration is in office. This dynamic is likely amplified by the budget challenges created by the COVID-19 pandemic, which has forced elected officials to make significant cuts to a multitude of programs after pandemic-related budget shortfalls. [23]

Conclusions and Recommendations

1. Federal funding for detention representation reduces disparities and improves outcomes

Even though all of the programs analyzed in this report are relatively new, initial data suggests that when jurisdictions provide public funding to support immigrants in detention, it improves their likelihood of success in obtaining relief and eliminates disparities between those who can afford counsel and those who cannot. These findings bolster growing calls from immigrant advocates for a universal representation program for immigrants in detention at the federal level.

2. Further study is needed to assess the impact of public funding for outreach and affirmative petition support

Because no empirical studies have been conducted about the impact of representation on case outcomes for simple (non-asylum) affirmative petitions,[24] it is too soon to judge whether disparities currently exist on the affirmative side and whether public support for such work is having a statistically significant impact on case outcomes in jurisdictions that have chosen to fund it. Policy makers should consider undertaking such studies as they seek to most effectively allocate public resources to immigrant legal support. Additionally, in jurisdictions where significant funding was allocated to outreach and education, policy makers should attempt to find objective criteria to better evaluate the impact of such outreach.

3. Continued volatility in state and local funding will impede long-term success of these programs

Across jurisdictions, many of the programs analyzed in this report experienced annual uncertainty around funding allocations, as political support for the programs ebbed and flowed and the COVID-19 pandemic disrupted state and local budgets. Such uncertainty makes operational planning difficult and impedes both the scalability of these programs and their impact. Because complex cases can take multiple years to adjudicate, annual funding processes pose challenges to agency leaders as they allocate personnel and resources. Policy makers should consider more robust and sustainable funding vehicles for these programs, such as multi-year grants or grants calculated based on the number of clients served in a specified period.

* * *

Endnotes

[1] Legal Information Institute. “Right to Counsel.” Cornell Law School. Available at: https://www.law.cornell.edu/wex/right_to_counsel

[2] New York Immigrant Representation Study. 2011. “Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings.” New York. Available at: https://justicecorps.org/app/uploads/2020/06/New-York-Immigrant-Representation-Study-I-NYIRS-Steering-Committee-1.pdf

[3]Lo Wang, Hansi. 2013. “New Pilot Program Gives Immigrant Detainees Public Defenders.” Code Switch. NPR. Washington D.C. Available at: https://www.npr.org/sections/codeswitch/2013/11/29/247579071/new-pilot-program-gives-immigrant-detainees-public-defenders

[4] New York City Council. 2019. “Council Speaker Corey Johnson and Committee on Immigration Chair Carlos Menchaca Announce a $16.6 Million Allocation to Fund the New York Immigrant Family Unity Project.” Press Releases. New York City Council. New York City. Available at: https://council.nyc.gov/press/2019/09/10/1805/

[5] CBS San Francisco. 2017. “San Francisco Mayor Oks Funding for Immigrant Legal Defense.” CBSN Bay Area. San Francisco. Available at: https://sanfrancisco.cbslocal.com/2017/03/06/san-francisco-mayor-oks-funding-for-immigrant-legal-defense/

[6] Chinn, Jerold. 2018. “SF Funds Legal Services for Detained Immigrants.” SFBay.ca. SF Bay Media Associates. San Francisco. Available at: https://sfbayca.com/2018/03/02/sf-funds-legal-services-for-detained-immigrants/

[7] Wenus, Laura.  2016. “Campos Presses Mayor for Immigrant Legal Defense Fund.” Mission Local. San Francisco. Available at: https://missionlocal.org/2016/12/campos-presses-mayor-for-immigrant-legal-defense-fund/

[8] Non-profit immigration legal service providers can apply for accreditation from the DOJ to provide immigration legal counsel without a law license. As such, many nonprofits rely heavily on these accredited representatives over attorneys, who are much more costly.

[9] Beekman, Daniel. 2017. “Seattle, King County Councils Approve $1.3 Million in Legal Aid for Immigrants.” Seattle Times. Seattle. Available at: https://www.seattletimes.com/seattle-news/politics/seattle-king-county-councils-approve-13-million-in-legal-aid-for-immigrants/

[10] The National Immigration Forum is one of the organizations which has partnered with Washington D.C., assisting immigrants with the naturalization process through its New American Workforce program. https://mayor.dc.gov/release/bowser-administration-announces-dcs-first-ever-partnership-assist-residents-citizenship.

[11] Sadon, Rachel. 2017. “Bowser Announces $500,000 in Grants to Provide Legal Help to D.C. Immigrants.” DCist. WAMU 88.5 American University Radio. Washington D.C. Available at: https://dcist.com/story/17/01/09/dc-announces-new-grants-to-provide/

[12] Simons, Sasha Ann. 2019. “Immigration Advocates Urge D.C. Government to Increase Legal Funding to $2.5 Million.” WAMU 88.5. American University Radio.  Washington D.C. Available at: https://wamu.org/story/19/03/04/immigration-advocates-urge-d-c-government-to-increase-legal-funding-to-2-5-million/

[13] National Immigrant Justice Center. 2018. “Legal Protection Fund Advances Immigration Protections for Chicago Residents.” Chicago. Available at: https://www.chicago.gov/content/dam/city/depts/mayor/Office%20of%20New%20Americans/PDFs/Legal_Protection_Fund/3.pdf

[14] Smith, Dakota. 2016. “Los Angeles Creates $10M Legal Defense Fund for Immigrants.” Los Angeles Times. Tribune News Services. Los Angeles. Available at:  https://www.governing.com/archive/tns-los-angeles-immigrant-legal-defense-fund.html

[15] Smith, Dakota. 2019. “L.A. Wary of Adding Money to Legal Defense Fund for Migrants and Refugees.” Los Angeles Times. Tribune News Services. Los Angeles, Available at: https://www.latimes.com/local/lanow/la-me-ln-justice-fund-budget-immigrant-migrant-legal-defense-20190517-story.html

[16] California Immigrant Policy Center. “One California: Immigrant Services Funding.” California Immigrant Policy Center. Available at:https://caimmigrant.org/what-we-do/one-california-immigrant-services-funding/

[17] New York State. “Liberty Defense Project.” Government of New York State. New York. Available at: https://www.ny.gov/sites/ny.gov/files/atoms/files/LDPOne-Pager.pdf

[18] “The New York Immigrant Family Unity Project.” Vera Institute of Justice. Brooklyn. Available at: https://www.vera.org/projects/new-york-immigrant-family-unity-project/learn-more

[19]New York State. “Liberty Defense Project.” Government of New York State. Available at:  https://www.ny.gov/programs/liberty-defense-project

[20] Stave, Jennifer et al. 2017. “Evaluation of the New York Immigrant Family Unity Project.” Vera Institute of Justice. Available at: https://www.vera.org/downloads/publications/new-york-immigrant-family-unity-project-evaluation.pdf

[21] City News Service. “Supervisors Extend Commitment to L.A. Justice Fund.” Los Angeles Daily News. MediaNews Group, Inc. Available at: https://www.dailynews.com/2020/07/21/supervisors-extend-commitment-to-l-a-justice-fund/

[22] Fleskes, Austin. 2020. “Shortfall in City Legal Aid Fund Could Lead to More Denver Immigrants Facing Deportation with No Lawyer.” Colorado Politics. Available at: https://www.coloradopolitics.com/denver/report-shortfall-in-city-legal-aid-fund-could-lead-to-more-denver-immigrants-facing-deportation/article_eb16be9c-e332-11ea-a0dd-cbde03901aa8.html

[23] Grench, Eileen. 2020. “State Stiffs Immigration Lawyer Fund Cuomo Once Lauded as ‘Beacon of Hope.’’ The City. New York City. Available at: https://www.thecity.nyc/2020/8/3/21353609/state-stiffs-immigration-lawyer-fund-cuomo-once-lauded

[24] Such as DACA renewals, family-based petitions and applications for naturalization.

 

The National Immigration Forum would like to thank Emily Linn, policy intern, for her extensive contributions to this article.

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