Access to Counsel and the Legacy of Juan Osuna

On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15^th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life, and ultimately compiling them as part of a CMS special collection in his memory.

This essay on access to counsel for immigrants in removal proceedings is part of a special series by the Center for Migration Studies (CMS) on the issues and values to which Juan Osuna devoted his professional life. Ever since Osuna first served as an appellate judge on the Board of Immigration Appeals (BIA), he noticed the appallingly low levels of legal representation (ABA 2014), the difficulties that litigants faced in pursuing their cases without the assistance of counsel, and the additional time that trial judges had to spend to ensure that unrepresented litigants understood the court process (Brookings Institution 2009). After serving as an appellate judge on the BIA, Osuna became vice chair, then chair, of that body. Later in his career, Osuna became the director of the Executive Office for Immigration Review (EOIR), the division within the Department of Justice that houses immigration judges. In this role, Osuna led the development of innovative programming that advanced immigrants’ access to counsel.

Throughout his career, Osuna was outspoken about the severe lack of immigration counsel, particularly among children and detained immigrants (Li 2014). He realized that a court system full of unrepresented litigants not only threatens due process violations, but also makes the courts less efficient. Speaking from his experience as a judge, Osuna told members of the American Bar Association: “It’s not just good for the people appearing before the courts to have counsel, it’s good for the system. Any judge will tell you they’d much rather have a lawyer involved from beginning of a case so it can move forward in an efficient and effective manner.” Similarly, shortly after his appointment as EOIR director by Attorney General Eric Holder, Osuna publicly expressed his concerns about access to counsel at a conference held in Washington, DC by Human Rights First, describing how the dearth of legal services adversely affects the overburdened court system (Human Rights First 2013).

Osuna’s observations are consistent with the findings of a 2015 study that I published with Steven Shafer on access to counsel in US immigration courts. We analyzed more than 1.2 million immigration cases decided between 2007 and 2012 and found that counsel was usually absent in immigration proceedings (Eagly and Shafer 2015). Nationally, only 37 percent of the immigrants in our study found a lawyer. For immigrants held in detention centers during their court case, the situation was even more extreme: Only 14 percent obtained counsel. Without counsel, it was almost impossible for immigrants to defend themselves in court successfully. Over the six-year period of our study, 98 percent of immigrants without counsel were deported.

At every stage of immigration court proceedings, represented immigrants were substantially more likely to succeed. For example, detained immigrants with counsel were three times more likely to obtain relief from deportation successfully and over four times more likely to have had their cases terminated. Non-detained immigrants with counsel were eight times more likely to obtain relief and one-and-a-half times more likely to have had their case terminated. Our study also showed the strong relationship between attorney representation and improvements in immigration court efficiency, including faster case adjudication, higher likelihood of respondents’ release on bond, and higher court appearance rates.

During his tenure overseeing the immigration judges, Osuna strived to make access to counsel a core commitment of the court system. In his leadership role, Osuna was a firm believer in the Legal Orientation Program (LOP) that provides know-your-rights trainings in detention centers across the country.[1] By educating detainees and providing self-help trainings and referrals to pro bono counsel, the LOP aims to increase due process and increase efficiencies in the immigration court system. In a comprehensive review of the program, the Vera Institute of Justice found that participants completed their court cases faster (13 days on average), thus substantially reducing the costs associated with their detention and court process (Siulc et al. 2008). In addition, while the LOP is not a substitute for full-scale representation, the Vera Institute found that detainees who received intensive self-help services from non-profit LOP providers were more likely to win relief.

Following a successful pilot program in 1999 (Kerwin 2005), Congress first allocated funding for the LOP program in 2002 (Siulc et al. 2008), but these services were limited to six sites, reaching only 20 percent of detained immigrants whose proceedings were completed that year. Advocates urged the government to grow the LOP program and increase representation for immigrants in removal proceedings in the early 2000s (Kerwin 2005).

During his six-and-one-half years at the helm of EOIR from 2010 to 2017, Osuna presided over a significant expansion of LOP services — allowing roughly half of detained immigrants nationwide to benefit from the LOP’s provision of legal information, self-help assistance, and pro bono referrals (DOJ 2011; CMS 2017). Osuna also experimented with innovative developments within the LOP, such as expanding it to assist individuals who were not detained (including the establishment of the Immigration Court Helpdesk Program in 2016) and to provide legal orientation to the legal custodians of unaccompanied children (CMS 2011; DOJ 2010, 2016a). As Osuna told Congress in 2011, the “LOP helps to improve the efficiency of the immigration court and detention processes as well as access to basic legal services for aliens without legal representation” (DOJ 2011).

The LOP emerged against a backdrop of an immigration court system that guarantees the right to be represented by counsel, but not at the expense of the government. Because deportation is classified as a civil rather than a criminal sanction, immigrants facing removal are not afforded the constitutional protections under the Sixth Amendment that apply to criminal defendants. Moreover, as my research with Steven Shafer underscores, free legal services for immigrants are exceedingly rare (Eagly and Shafer 2015). Over the six-year period of our study, only 2 percent of all immigrants facing deportation obtained pro bono representation from non-profit organizations, law school clinics, or volunteers from large law firms. The remaining 98 percent had to either pay for counsel or proceed on their own.

Aware of the shortcomings of this system, Osuna endeavored to provide at least some individuals with counsel through alternative mechanisms. In response to litigation brought by the American Civil Liberties Union (ACLU), Osuna announced in 2013 that the EOIR would begin appointing counsel at government expense for detainees with severe mental impairments (ACLU 2013; DOJ 2013). This new nationwide policy requires screenings for mental impairments and qualified representation for individuals suffering from these impairments. At a conference sponsored by American University’s Washington College of Law, Osuna called the new program “pretty significant in terms of the ground that it breaks” and indicated he was looking into ways to expand full-scale legal services to reach additional populations (Bronx Defenders 2014).

Improving access to counsel for young children was particularly important to Osuna, especially following the migration of tens of thousands of unaccompanied minors across the southern border between 2011 and 2014 (Gordon 2014). As he told the Senate Committee on Homeland Security and Governmental Affairs in 2015, providing counsel for children can improve court efficiency while ensuring fair outcomes:

“When unaccompanied children are represented, we expect that courts will be able to reduce the number of continuances granted for the purpose of obtaining counsel, preparing any applications for relief, and gathering evidence. In addition, counsel can facilitate court proceedings, resulting in more efficient hearings and earlier identification of relevant legal issues. All of these factors will assist in reducing EOIR’s case backlog while providing fair and efficient adjudicatory proceedings.” (DOJ 2015)

To address the dire situation facing children undergoing removal proceedings without a parent or an attorney, Osuna launched a ground-breaking new partnership between EOIR and the Corporation for National and Community Service (CNCS) to provide free legal representation for unaccompanied children (CNCS 2014; DOJ 2014a). The resulting program, known as justice AmeriCorps (jAC), was announced in 2014 and funded approximately 100 lawyers and paralegals over a two-year period to represent children in immigration courts (DOJ 2014b). In addition, the program worked to identify unaccompanied children who may be victims of abuse or human trafficking. Over three thousand children received services under the initiative. An in-depth evaluation of justice AmeriCorps by the Vera Institute for Justice (2017) applauded the program for successfully meeting its goals, including increasing the level of representation of unaccompanied children in immigration court and building pro bono capacity to take on their cases. The study’s findings also underscored a promise that Osuna made to Congress that giving children lawyers can allow their cases to “be adjudicated more efficiently” (DOJ 2016b).

Osuna also believed that preventing scams involving the unauthorized practice of immigration law is integral to ensuring access to adequate counsel. In June 2011, the federal government launched a multiagency initiative aimed at combatting immigration fraud (ICE 2011). As Osuna explained at the time: “Through a combination of efforts, including reporting fraud, educating the public and dedicated outreach, we are bolstering our efforts toward growing a force of legitimate legal services providers and getting rid of fraudsters.” Aware of the urgency of the access to counsel challenges facing immigrants, Osuna understood that training immigration attorneys and growing the pool of qualified counsel are crucial to ensuring that immigrants are protected from fraudulent scams (ABA 2011).

Juan Osuna will be remembered for his pioneering work championing access to justice. Throughout his distinguished career as a public servant, Osuna recognized that lawyers play a vital role in ensuring due process and improving the overall efficiency of immigration courts. The innovative programs expanded and developed during his tenure at EOIR experimented with both full-scale legal representation as well as more limited provision of legal orientation and referral. Together, these initiatives provide an important blueprint for future efforts to ensure due process rights for immigrants facing removal proceedings.

[1] See https://www.vera.org/projects/legal-orientation-program.

REFERENCES

ABA (American Bar Association). 2011. “American Bar Association adopted by the House of Delegates.” https://www.americanbar.org/content/dam/aba/directories/policy/2011_am_118.pdf.

———. 2014. “Legal representation needed to fill justice gap, says immigration panel.” https://www.americanbar.org/news/abanews/aba-news-archives/2014/08/representation_isla/.

ACLU (American Civil Liberties Union). 2013. “Franco-Gonzalez V. Holder.” https://www.aclu.org/cases/franco-gonzalez-v-holder.

Bronx Defenders. 2014. “N.Y. pilot program offers free immigration counsel.” http://www.bronxdefenders.org/wp-content/uploads/2014/05/NY-pilot-program-offers-free-immigration-counsel.pdf.

Brookings Institution. 2009. Immigration and the Courts. Washington, DC: Brookings Institution. https://www.brookings.edu/wp-content/uploads/2012/04/20080220_immigration.pdf.

CMS (Center for Migration Studies). 2017. “Juan Osuna.” New York: CMS. https://cmsny.org/juan-osuna/.

CNCS (Corporation for National & Community Service). 2014. “Justice AmeriCorps Legal Services for Unaccompanied Children.” https://perma.cc/75LD-YA2H.

DOJ (US Department of Justice). 2010. “Statement of Juan P. Osuna, Associate Deputy Attorney General, United States Department of Justice before the United States House of Representatives Committee on the Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law Hearing Entitled ‘Executive Office for Immigration Review.’” Washington, DC, June 17. https://www.justice.gov/sites/default/files/testimonies/witnesses/attachments/06/17/10//06-17-10-osuna-eoir.pdf.

———. 2011. “Attorney General Holder Announces Appointment of Juan Osuna as Director for the Executive Office for Immigration Review.” https://www.justice.gov/opa/pr/attorney-general-holder-announces-appointment-juan-osuna-director-executive-office.

———. 2013. “Department of Justice and the Department of Homeland Security Announce Safeguards for Unrepresented Immigration Detainees with Serious Mental Disorders or Conditions.” https://www.justice.gov/eoir/pr/department-justice-and-department-homeland-security-announce-safeguards-unrepresented.

———. 2014a. “Justice Department and CNCS Announce New Partnership to Enhance Immigration Courts and Provide Critical Legal Assistance to Unaccompanied Minors.” https://www.justice.gov/opa/pr/justice-department-and-cncs-announce-new-partnership-enhance-immigration-courts-and-provide.

———. 2014b. “Statement of Juan P. Osuna, Associate Deputy Attorney General, United States Department of Justice before the Committee on Homeland Security and Governmental Affairs, United States Senate.” https://perma.cc/QQA8-ZF4Y.

———. 2015. “Juan P. Osuna, Director Executive Office for Immigration Review, United States Department of Justice, before the Committee on Homeland Security and Governmental Affairs, United States Senate, for a Hearing Entitled ‘The 2014 Humanitarian Crisis At Our Border: A Review Of The Government’s Response To Unaccompanied Minors One Year Later.’” Washington, DC, July 7. https://www.hsgac.senate.gov/imo/media/doc/Testimony-Osuna-2015-07-07.pdf.

———. 2016a. “EOIR Announces Creation of Information Helpdesks.” https://www.justice.gov/sites/default/files/pages/attachments/2016/08/26/eoirannouncescreationofinformationhelpdesks082616_0.pdf.

———. 2016b. “Director Juan P. Osuna’s Statement Before the U.S. Senate Committee on the Judiciary Hearing on ‘The Unaccompanied Alien Children Crisis: Does the Administration Have a Plan to Stop the Border Surge and Adequately Monitor the Children?’ to Revise Docketing Practices Relating to Certain Priority Cases.” https://www.justice.gov/eoir/testimony-juan-p-osuna-us-senate-02232016.

Eagly, Ingrid V., and Steven Shafer. 2015. “A National Study of Access to Counsel in Immigration Court.” University of Pennsylvania Law Review 164(1):1-91. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9502&context=penn_law_review.

Gordon, Ian. 2014. “70,000 Kids Will Show Up Alone at Our Border This Year. What Happens to Them?” Mother Jones, July/August Issue. https://www.motherjones.com/politics/2014/06/child-migrants-surge-unaccompanied-central-america/.

Human Rights First. 2013. “Importance of Counsel for Asylum Seekers and Immigrants in Detention Stressed by Faith, Civil Rights, Legal, and Other Leaders.” https://www.humanrightsfirst.org/2013/04/26/importance-of-counsel-for-asylum-seekers-and-immigrants-in-detention-stressed-by-faith-civil-rights-legal-and-other-leaders.

ICE (US Immigration and Customs Enforcement). 2011. “National initiative to combat immigration services scams.” https://www.ice.gov/news/releases/national-initiative-combat-immigration-services-scams.

Kerwin, Donald. 2005. “Revisiting the Need for Appointed Counsel.” Migration Policy Institute Policy Brief. Washington, DC: Migration Policy Institute. https://www.migrationpolicy.org/research/revisiting-need-appointed-counsel.

Li, Victor. 2014. “Ensuring immigrant detainees have lawyers also benefits court system, DOJ official says.” ABA Journal, August 9. http://www.abajournal.com/news/article/ensuring_immigrant_detainees_have_lawyers_benefits_court_system/.

Siulc, Nina, Zhifen Cheng, Arnold Son, and Olga Byrne. 2008. Legal Orientation Program: Evaluation and Performance and Outcome Measurement Report, Phase II. New York: Vera Institute of Justice. https://perma.cc/94HU-8YYN.

Vera Institute of Justice. 2017. “Justice AmeriCorps Legal Services for Children Program.” New York: Vera Institute of Justice. https://www.americanbar.org/content/dam/aba/administrative/immigration/justice_americorps_final_report.pdf.