Represented but unequal: The contingent effect of legal representation in removal proceedings

Abstract

Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens' access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.

A study of pandemic and stigma effects in removal proceedings

“…Applying the crisis-jurisprudence framework to immigration adjudication promises to yield important new insights. Consistent with findings from the broader research on judicial decision-making (Epstein et al, 2013;Harris & Sen, 2019;Rachlinski & Wistrich, 2017), research on IJs has found that extralegal factors may also play an important role in immigration case outcomes (Chand et al, 2017;Kim & Semet, 2020;Rottman et al, 2009;Ryo & Peacock, 2021). More nascent is research on immigration adjudication and bias.…”

“…The current study also contributes to research on judicial decision-making and bias (Chand et al, 2017;Epstein et al, 2013;Harris & Sen, 2019;Ryo & Peacock, 2021). In particular, we develop a new understanding of "crisis jurisprudence" (Light et al, 2019) by advancing a new perspective on judicial bias that integrates insights from the study of stigma and stigmatization.…”

“…In this section, we provide a brief overview of the following empirical contexts for this study: (1) the COVID‐19 pandemic and anti‐Asian bias, and (2) removal proceedings in immigration courts. Detailed descriptions of these topics are available elsewhere (Elias et al, 2021; Li & Nicholson, 2021; Ryo & Peacock, 2021). Here, we focus only on most immediate and salient aspects of these topics that are necessary to contextualize our empirical analysis.…”

A “good fit”: Client sorting among nonprofit, private, and pro bono immigration attorneys

“…Research on the role of legal representation for noncitizens' outcomes in immigration legal system proceedings has found a similar relationship: having an attorney is correlated with more favorable legal outcomes in deportation proceedings in U.S. immigration courts, also known as the “representation effect” (Ryo & Peacock, 2021). Past studies using both observational and quasi‐experimental analytic approaches have found that having an attorney increases immigrants' chances of receiving bond from detention (Ryo, 2016, 2018), defensive asylum claims in immigration court (Keith et al, 2013; Schoenholtz et al, 2007), affirmative asylum claims (Schoenholtz et al, 2014), and relief from removal (Eagly & Shafer, 2015).…”

“…For undocumented or liminally documented immigrants in the U.S. seeking long‐term, stable legal status or fighting against their removal in immigration court, having access to an attorney can increase their chances of winning their claims. Several quantitative studies have empirically confirmed this “representation effect” (Chand et al, 2021; Eagly & Shafer, 2015; Miller et al, 2015; Ryo, 2016, 2018; Ryo & Peacock, 2019) or “the increased probability of a favorable outcome associated with legal representation” (Ryo & Peacock, 2021, p. 634). At the same time, however, scholars acknowledge that we do not fully understand the causal mechanisms underlying this relationship, or the degree to which lawyers' case selection accounts for case outcomes.…”