Criminal defendants in the United States have the right to counsel under the Sixth Amendment. This constitutional protection provides defendants with court-appointed counsel if they cannot afford one. Migrants seeking relief from deportation, on the other hand, do not have the right to counsel because deportation is classified as a civil rather than a criminal sanction. As a result, immigrants facing deportation who cannot afford a lawyer do not have the opportunity to be provided one. Regardless of whether the immigrant has legal counsel, the attorney representing the government can argue for deportation, which inevitably places unrepresented immigrants at a disadvantage.
According to a 2016 study by the American Immigration Council, access to counsel for immigrants is scarce, especially for detained immigrants. Only 37% of all immigrants in the United States had legal assistance in their deportation cases. Being detained makes it even harder to acquire legal counsel, with only 14% of immigrants held in jails, prisons, or detention centers having an attorney. Lack of access to counsel can be detrimental at every stage of the court process. For example, immigrants who did not have an attorney during custody hearings were four times less likely to be released from detention than those who did. Additionally, represented immigrants were more likely to seek relief from deportation and win their cases.
Detained immigrants face additional barriers to receiving legal help. Because they cannot travel to an attorney's office and are sometimes transferred to detention centers far from their attorneys and families, they must rely on telephones at their facilities. This makes it more difficult to contact an attorney as their main form of communication is not always available. Furthermore, attorneys also find it hard to communicate with their clients because they must follow strict visitation rules at the facilities.
The ability to pay for counsel is an obstacle that all immigrants in the court system face. Since they do not have a right to counsel if they cannot afford it, immigrants must have the means to pay for the attorney’s services. Detention creates another problem for immigrants as they are unable to work to pay for an attorney. Although pro bono or reduced-fee services are available, these are hard to come by because there are not enough to meet demand. As a result, immigrants are forced to represent themselves, with little to no knowledge about the United States’ complex immigration laws.
The findings of the American Immigration Council study support a government-funded public defender program for immigrants. According to the findings, the involvement of attorneys in the cases of detained immigrants is associated with a higher likelihood of release from detention. Detention of immigrants is extremely expensive for the government, which spent $2 billion on this alone in 2016. Therefore, this program would benefit both immigrants and the government, helping immigrants increase their chances of release while simultaneously helping the government to reduce the costs associated with immigrants who lack legal representation.