Hostname: page-component-77c89778f8-gq7q9 Total loading time: 0 Render date: 2024-07-21T18:23:24.589Z Has data issue: false hasContentIssue false
  • English
  • Français

Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings

Published online by Cambridge University Press:  01 January 2024

Emily Ryo Open the ORCID record for Emily Ryo [Opens in a new window]
Get access Rights & Permissions [Opens in a new window]

Abstract

Do immigration lawyers matter, and if so, how? Drawing on a rich source of audio recording data, this study addresses these questions in the context of U.S. immigration bond hearings—a critical stage in the removal process for noncitizens who have been apprehended by U.S. immigration officials. First, my regression analysis using a matched sample of legally represented and unrepresented detainees shows that represented detainees have significantly higher odds of being granted bond. Second, I explore whether legal representation affects judicial efficiency and find no evidence of such a relationship. Third, I examine procedural and substantive differences between represented and unrepresented hearings. My analysis shows no differences in the judges' procedural behaviors, but significant differences in the detainees' level and type of courtroom advocacy. Represented detainees are more likely to submit documents, to present affirmative arguments for release, and to offer legally relevant arguments. Surprisingly, however, I find no evidence that these activities explain the positive effect of legal representation on hearing outcomes. These findings underscore the need to investigate not only what lawyers do in the courtroom, but also less quantifiable factors such as the quality of their advocacy, the nature of their relationship to other courtroom actors, and the potential signaling function of their presence in the courtroom.

Type
Articles
Information
Law & Society Review , Volume 52 , Issue 2 , June 2018 , pp. 503 - 531
Copyright
© 2018 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

I am grateful to Scott Altman, Ming Hsu Chen, Ingrid Eagly, Niels Frenzen, Gillian Hadfield, Annie Lai, Banks Miller, Emily Taylor Poppe, Andy Schoenholtz, and the reviewers and editors at the Law & Society Review for their insightful comments on earlier drafts of this article. I also thank the participants of the faculty workshops at the UC Irvine School of Law, the University of Arizona James E. Rogers College of Law, and the University of Colorado Law School, for their helpful feedback. This research was supported by the California Wellness Foundation, the Carnegie Corporation of New York, the Haynes Foundation, and the Russell Sage Foundation. The statements made and views expressed are solely the responsibility of the author.

References

References

Adams, Matt (2010) “Advancing the ‘Right’ to Counsel in Removal Proceedings,” 9 Seattle J. of Social Justice 169–83.Google Scholar
Albiston, Catherine R. & Sandefur, Rebecca L. (2013) “Expanding the Empirical Study of Access to Justice,” 2013 Wisconsin Law Rev. 101–20.Google Scholar
Baldini-Potermin, Maria (2016) “§4.11. Release of Noncitizens Subject to Mandatory Detention,” Immigration Trial Handbook. New York: Thomson West.Google Scholar
Baron, Reuben M. & Kenny, David A. (1986) “The Moderator-Mediator Variable Distinction in Social Psychological Research: Conceptual, Strategic and Statistical Considerations,” 51 J. of Personality and Social Psychology 1173–82.CrossRefGoogle ScholarPubMed
Blackwell, Matthew, et al. (2009) “cem: Coarsened Exact Matching in Stata,” 9 Stata J. 524–46.CrossRefGoogle Scholar
Blanck, Peter David (1987) “The ‘Process’ of Field Research in the Courtroom: A Descriptive Analysis,” 11 Law & Human Behavior 337–58.CrossRefGoogle Scholar
Brader, Ted, Valentino, Nicholas A., & Suhay, Elizabeth (2008) “What Triggers Public Opposition to Immigration? Anxiety, Group Cues, and Immigration Threat,” 52 American J. of Political Science 959–78.CrossRefGoogle Scholar
Bunin, Alexander (2016) “The Constitutional Right to Counsel at Bail Hearings,” 31 Criminal Justice 23–47.Google Scholar
Cauthen, James N.G. & Latzer, Barry (2008) “Why So Long? Explaining Processing Time in Capital Appeals,” 29 Justice System J. 298–312.Google Scholar
Chishti, Muzaffar, Pierce, Sarah, & Bolter, Jessica (2017) The Obama Record on Deportations: Deporter in Chief or Not?, Migration Policy Institute. Available at: https://www.migrationpolicy.org/article/obama-record-deportations-deporter-chief-or-not (accessed 5 March 2018).Google Scholar
Christensen, Robert K. & Szmer, John (2012) “Examining the Efficiency of the U.S. Courts of Appeals: Pathologies and Prescriptions,” 32 International Rev. of Law and Economics 30–7.CrossRefGoogle Scholar
Colbert, Douglas L., Paternoster, Ray, & Bushway, Shawn (2002) “Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail,” 23 Cardozo Law Rev. 1719–93.Google Scholar
Corser, Maggie (2017) Access to Justice: Ensuring Counsel for Immigrants Facing Deportation in the D.C. Metropolitan Area, Center for Popular Democracy. Available at: https://populardemocracy.org/sites/default/files/DC_Access_to_Counsel_rev4_033117%20%281%29.pdf (accessed 5 March 2018).Google Scholar
Dobson, K. Craig (2017) “Yes, No, or Maybe: The Importance of Developing a Philosophy of Lawyering in an Era of Immigration Upheaval,” AILA Doc. No. 17092930, American Immigration Lawyers Association.Google Scholar
Eagly, Ingrid V. (2015) “Remote Adjudication in Immigration,” 109 Northwestern Univ. Law Rev. 933–1019.Google Scholar
Eagly, Ingrid V. & Shafer, Steven (2015) “A National Study of Access to Counsel in Immigration Court,” 164 Univ. of Pennsylvania Law Rev. 1–91.Google Scholar
Edwards, Benjamin P. (2017) “The Professional Prospectus: A Call for Effective Professional Disclosure,” 74 Washington & Lee Law Rev. 1457–515.Google Scholar
Eisenstein, James, Flemming, Roy B., & Nardulli, Peter F. (1988) The Contours of Justice: Communities and Their Courts. Boston: Little, Brown.Google Scholar
Elwert, Felix & Winship, Christopher (2014) “Endogenous Selection Bias: The Problem of Conditioning on a Collider Variable,” 40 Annual Rev. of Sociology 31–53.CrossRefGoogle ScholarPubMed
Engler, Russell (2010) “Connecting Self-Representation to Civil Gideon: What Existing Data Reveal about When Counsel Is Most Needed,” 37 Fordham Urban Law J. 37–92.Google Scholar
EOIR (n.d.) Immigration Judge Benchbook: Introductory Guide—Bonds, U.S. Department of Justice. Available at: https://web.archive.org/web/20170429183221/https:// www.justice.gov/eoir/file/830231/download (accessed 5 March 2018).Google Scholar
EOIR (2017) Immigration Court Practice Manual, U.S. Department of Justice. Available at: https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02/practicemanual.pdf (accessed 5 March 2018).Google Scholar
Frazier, Patricia A., Tix, Andrew P., & Barron, Kenneth E. (2004) “Testing Moderator and Mediator Effects in Counseling Psychology Research,” 51 J. of Counseling Psychology 115–34.Google Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
Genn, Hazel (2013) “Do-It-Yourself Law: Access to Justice and the Challenge of Self-Representation,” 32 Civil Justice Q. 411–44.Google Scholar
Greiner, D. James & Matthews, Andrea (2016) “Randomized Control Trials in the United States Legal Profession,” 12 Annual Rev. of Law and Social Science 295–312.CrossRefGoogle Scholar
Hadfield, Gillian K. & Rhode, Deborah L. (2016) “How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering,” 67 Hastings Law J. 1191–223.Google Scholar
Hausman, David (2016) “The Failure of Immigration Appeals,” 164 Univ. of Pennsylvania Law Rev. 1177–238.Google Scholar
Iacus, Stefano M., King, Gary, & Porro, Giuseppe (2012) “Causal Inference without Balance Checking: Coarsened Exact Matching,” 20 Political Analysis 1–24.CrossRefGoogle Scholar
King, Gary & Nielsen, Richard (2016) Why Propensity Scores Should Not Be Used for Matching, Working Paper. Available at: http://j.mp/2ovYGsW (accessed 5 March 2018).Google Scholar
Legomsky, Stephen H. & Rodríguez, Cristina M. (2015) Immigration and Refugee Law and Policy, 6th ed. St. Paul: Foundation Press.Google Scholar
Lu, Hong & Miethe, Terance D. (2002) “Legal Representation and Criminal Processing in China,” 42 British J. of Criminology 267–80.CrossRefGoogle Scholar
MacKinnon, David P., Fairchild, Amanda J., & Fritz, Matthew S. (2007) “Mediation Analysis,” 58 Annual Rev. of Psychology 593–614.CrossRefGoogle ScholarPubMed
Marouf, Fatma E. (2011) “Implicit Bias and Immigration Courts,” 45 New England Law Rev. 417–48.Google Scholar
Medina, M. Isabel (2012) “Challenges of Facilitating Effective Legal Defense in Deportation Proceedings: Allowing Nonlawyer Practice of Law through Accredited Representatives in Removals,” 53 South Texas Law Rev. 459–75.Google Scholar
Miller, Banks, Keith, Linda Camp, & Holmes, Jennifer S. (2015) “Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability,” 49 Law & Society Rev. 209–39.CrossRefGoogle Scholar
National Immigration Law Center (2016) Blazing a Trail: The Fight for Right to Counsel in Detention and Beyond. Available at: https://www.nilc.org/wp-content/uploads/2016/04/Right-to-Counsel-Blazing-a-Trail-2016-03.pdf (accessed 5 March 2018).Google Scholar
National Lawyers Guild (2017) “§ 7:12. Release on Bond or Conditional Parole,” in Hornik, P., ed., Immigration Law and Defense. Eagan: Thomson Reuters.Google Scholar
National Right to Counsel Committee (2015) Don't I Need a Lawyer? Pretrial Justice and the Right to Counsel at First Judicial Bail Hearing, Constitution Project. Available at: https://constitutionproject.org/wp-content/uploads/2015/03/RTC-DINAL_3.18.15.pdf (accessed 5 March 2018).Google Scholar
Nessel, Lori A. and Anello, Farrin R. (2016) “Deportation Without Representation: The Access-to-Justice Crisis Facing New Jersey's Immigrant Families, Seton Hall Center for Social Justice. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2805525 (accessed 5 March 2018).Google Scholar
Posner, Richard A. & Yoon, Albert H. (2010) “What Judges Think of the Quality of Legal Representation,” 63 Stanford Law Rev. 317–49.Google Scholar
Quintanilla, Victor D., Allen, Rachel A., & Hirt, Edward R.(2017) “The Signaling Effect of Pro se Status,” 42 Law & Social Inquiry 1091–121.CrossRefGoogle Scholar
Ramji-Nogales, Jaya, Schoenholtz, Andrew I., & Schrag, Philip G. (2007) “Refugee Roulette: Disparities in Asylum Adjudication,” 60 Stanford Law Rev. 295–411.Google Scholar
Ryo, Emily (2013) “Deciding to Cross: Norms and Economics of Unauthorized Migration,” 78 American Sociological Rev. 574–603.CrossRefGoogle Scholar
Ryo, Emily (2016) “Detained: A Study of Immigration Bond Hearings,” 50 Law & Society Rev. 117–53.CrossRefGoogle Scholar
Ryo, Emily (2017a) “Legal Attitudes of Immigrant Detainees,” 51 Law & Society Rev. 99–131.CrossRefGoogle Scholar
Ryo, Emily (2017b) “Fostering Legal Cynicism through Immigration Detention,” 90 Southern California Law Rev. 999–1053.Google Scholar
Ryo, Emily (forthcoming) “Predicting Danger in Immigration Courts,” Law and Social Inquiry.Google Scholar
Sandefur, Rebecca L. (2010) “The Impact of Counsel: An Analysis of Empirical Evidence,” 9 Seattle J. for Social Justice 51–95.Google Scholar
Sandefur, Rebecca L. (2015) “Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers' Impact,” 80 American Sociological Rev. 909–33.CrossRefGoogle Scholar
Schoenholtz, Andrew I. & Bernstein, Hamutal (2008) “Improving Immigration Adjudication through Competent Counsel,” 21 Georgetown J. of Legal Ethics 55–60.Google Scholar
Shanahan, Colleen F., Carpenter, Anna E., & Mark, Alyx (2016a) “Lawyers, Power, and Strategic Expertise,” 93 Denver Law Rev. 469–521.Google Scholar
Shanahan, Colleen F., Carpenter, Anna E., & Mark, Alyx (2016b) “Can a Little Representation Be a Dangerous Thing?,” 67 Hastings Law J. 1367–87.Google Scholar
Shannon, Careen (2011) “To License or Not to License? A Look at Differing Approaches to Policing the Activities of Nonlawyer Immigration Service Providers,” 33 Cardozo Law Rev. 437–89.Google Scholar
Srikantiah, Jayashri, Hausman, David, & Weissman-Ward, Lisa (2015) “Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California,” 11 Stanford J. of Civil Rights & Civil Liberties 207–35.Google Scholar
Steering Committee of the New York Immigrant Representation Study Report (2011) “Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings,” 33 Cardozo Law Rev. 357–416.Google Scholar
Stuart, Elizabeth A. (2010) “Matching Methods for Causal Inference: A Review and a Look Forward,” 25 Statistical Science 1–21.CrossRefGoogle Scholar
Sunshine, Jason & Tyler, Tom R. (2003) “The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing,” 37 Law & Society Rev. 513–47.CrossRefGoogle Scholar
Taylor Poppe, Emily S. & Rachlinski, Jeffrey J. (2016) “Do Lawyers Matter? The Effect of Legal Representation on Civil Disputes,” 43 Pepperdine Law Rev. 881–942.Google Scholar
Thompson, John (2016) “A One-Year Specialist's Law Degree to Increase and Improve Representation among Immigration Respondents,” 30 Georgetown Immigration Law J. 455–87.Google Scholar
Turner, K.B. & Johnson, James B. (2007) “The Relationship between Type of Attorney and Bail Amount Set for Hispanic Defendants,” 29 Hispanic J. of Behavioral Sciences 384–400.CrossRefGoogle Scholar
Tyler, Tom R. (2006) [1990] Why People Obey the Law. Princeton: Princeton Univ. Press.CrossRefGoogle Scholar
U.S. Department of Homeland Security (2017) Fiscal Year 2017 ICE Enforcement and Removal Operations Report, U.S. Immigration and Customs Enforcement. Available at: https://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf (accessed 5 March 2018).Google Scholar
Williams, Marian R. (2017) “The Effect of Attorney Type on Bail Decisions,” 28 Criminal Justice Policy Rev. 3–17.CrossRefGoogle Scholar
Zimerman, Nourit & Tyler, Tom R. (2010) “Between Access to Counsel and Access to Justice: A Psychological Perspective,” 37 Fordham Urban Law J. 473–507.Google Scholar

Cases Cited

Ardestani v. INS, 502 U.S. 129 (1991)Google Scholar
Franco-Gonzalez v. Holder, No. CV 10–02211 DMG (DTBx), 2013 WL 3674492 (C.D. Cal. Apr. 23, 2013)Google Scholar
In re Guerra, 24 I. & N. Dec. 37 (BIA 2006)CrossRefGoogle Scholar
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016)Google Scholar
Jennings v. Rodriguez, 583 U.S. ____ (2018)Google Scholar
Lok v. INS, 548 F.2d 37 (2nd Cir. 1977)CrossRefGoogle Scholar
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), reversed, Jennings v. Rodriguez, 583 U.S. ____ (2018).Google Scholar
United States v. Wade, 388 U.S. 218 (1967)Google Scholar

Statutes & Regulations Cited

Immigration and Nationality Act, 8 U.S.C. §§ 1101, 1182, 1226, 1227, 1229a, 1362 (2012)Google Scholar
8 C.F.R. §§ 1003.1, 1003.19, 1003.38 (2016)Google Scholar
Supplementary material: File

Ryo supplementary material
Download undefined(File)
File 20.4 KB