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Access to Justice
for Immigrant Families
and Communities
Study of Legal Representation
of Detained Immigrants
in Northern California
OCTOBER 2014

Introduction

2

Northern California Collaborative for Immigrant Justice
The Northern California Collaborative for Immigrant Justice is a collaborative of immigration
legal service providers and other organizations that represent and advocate for individuals
and families whose lives are most directly affected by our nation’s broken immigration system.
These organizations provide advocacy and high quality legal representation to low-income
immigrant communities. The collaborative includes the following organizations: Alameda
County Public Defender’s Office; API Legal Outreach; Asian Americans Advancing Justice-Asian
Law Caucus; The Bar Association of San Francisco, Lawyer Referral and Information Service;
Bay Area Legal Aid; California Immigrant Policy Center; Berkeley Law Policy Advocacy Clinic;
Canal Alliance; Catholic Charities San Francisco; Center for Gender and Refugee Studies, U.C.
Hastings College of Law; Central American Resource Center; Centro Legal de la Raza; Chinese
for Affirmative Action; Community Legal Services in East Palo Alto; Dolores Street Community
Services; East Bay Community Law Center; East Bay Sanctuary Covenant; Immigrant Legal
Resource Center; Immigration Center for Women and Children; International Institute of the
Bay Area; La Raza Centro Legal; La Raza Community Resource Center; Lawyers’ Committee for
Civil Rights of the San Francisco Bay Area; Legal Aid Society of San Mateo County; Legal
Services for Children; One Justice; Pangea Legal Services; San Francisco Public Defender’s
Office; Social Justice Collaborative; Stanford Law School Immigrants’ Rights Clinic; Transgender
Law Center; the University of California, Davis, School of Law, Immigration Clinic; and USF
Immigration Clinic.

Advisory Board to the Collaborative
The following individuals serve on an advisory board to the Collaborative: Assistant Chief
Immigration Judge Print Maggard, San Francisco Immigration Court; Christina H. Lee, Becker &
Lee LLP (EOIR co-liaison to the San Francisco Immigration Court for the American Immigration
Lawyers Association); Meredith Linsky, Director, American Bar Association Commission on
Immigration; Jack W. Londen, Partner, Morrison & Foerster; Zachary M. Nightingale, Partner,
Van Der Hout, Brigagliano & Nightingale; Luis J. Rodriguez, President, State Bar of California;
and Jon B. Streeter, Partner, Keker & Van Nest.

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

Introduction

3

Access to Justice
for Immigrant Families and
Communities
Study of Legal Representation of
Detained Immigrants in
Northern California
The recent surge of families migrating to the United States has cast a spotlight on the broken
immigration system. Under current U.S. immigration laws and policies, immigrants in Northern
California and across the country are not entitled to a lawyer unless they can pay for one or find
someone to represent them for free. This report focuses on the Northern California immigrants who
often face the most difficult challenges: those who are locked up while their deportation cases are
decided by the courts. An overwhelming majority of these immigrants are forced to face
deportation proceedings without a lawyer even though they are behind bars. This is true even for
immigrants who have lived in Northern California with their families for most of their lives. When
these immigrants lose their cases after fighting removal from behind bars and without counsel, they
face lengthy or permanent separation from their Northern California families or return to violence
in foreign countries.

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

Introduction

4

Authors
This report was written by Jayashri Srikantiah and Lisa Weissman-Ward, along with students
Natalia Renta, Alfredo Montelongo, and Kara McBride of the Stanford Law School Immigrants’
Rights Clinic, in partnership with Lawyers’ Committee for Civil Rights of the San Francisco Bay
Area, Community Legal Services in East Palo Alto, and Centro Legal de La Raza, and on behalf
of the Northern California Collaborative for Immigrant Justice. Stanford Law student David
Hausman, who is also a joint doctoral degree student in Political Science at Stanford
University, contributed analysis of the Executive Office of Immigration Review (EOIR) data set
and thoughtful feedback.

Acknowledgements
We thank the Katzmann Study Group, which conducted key research in New York about the
effect of counsel in removal proceedings, for providing the inspiration for this report. Many of
the members of that study group—including Peter Markowitz, Veyom Bahl, Nisha Agarwal,
Stacey Strongarone, and Oren Root—have provided helpful advice and guidance in the drafting
of this report or to the Collaborative more generally. We also gratefully acknowledge that
Immigration Judge Dana Marks, President of the National Association of Immigration Judges,
served as a resource regarding information about the impact of unrepresented cases on the
immigration court system. We are grateful to the collaborative’s advisory board members for
their feedback on this report. Special thanks go to @JohnCarroll at the International Institute
of the Bay Area for his pro bono assistance with graphic design of this report.
Cover picture used with permission from “Shots fired by Olive's Cannon."
This report, and any errors, are solely the work of the authors.

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

Introduction

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Contents
Introduction

6

Key Findings

9

Background

10

Methodology

15

Analysis
Detained Northern Californians’ Lack of Removal Representation

16

Analysis
Northern California Removal Defense Provider Survey

22

Conclusion and Next Steps

27

Appendix A
Assumptions of EOIR Data Analysis

29

Appendix B
Breakdown of Release Applications by Type

31

Appendix C
Assumptions of Nonprofit Survey Data Analysis

32

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

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Introduction
The recent surge of families migrating to the United States has cast a spotlight on the broken
immigration system. Under current U.S. immigration laws and policies, immigrants in
Northern California and across the country are not entitled to a lawyer unless they can pay for
one or find someone to represent them for free. This report focuses on the Northern
California immigrants who often face the most difficult challenges: those who are locked up
while their deportation cases are decided by the courts. An overwhelming majority of these
immigrants are forced to face deportation proceedings without a lawyer even though they are
behind bars. This is true even for immigrants who have lived in Northern California with their
families for most of their lives. When these immigrants lose their cases after fighting removal
from behind bars and without counsel, they face lengthy or permanent separation from their
Northern California families or return to violence in foreign countries.

Every day in Northern California, hundreds of immigrants are locked up while the federal
immigration authorities conduct removal proceedings to deport them from this country.1 For
these immigrants, deportation can mean permanent separation from children and spouses or
return to a foreign country where they face violence or torture. Despite the high stakes, the U.S.
immigration system does not provide lawyers to immigrants who cannot afford them.2 As a
result, the rate of legal representation for immigrants who are locked up while in removal
proceedings is abysmally low. At the same time, the number of deportations across the country
and in Northern California has skyrocketed: 271,279 proceedings were initiated in the nation’s
immigration courts in fiscal year 2013.3 The result is a crisis in the largest immigration courts,
including the San Francisco Immigration Court, which has a backlog of over 25,000 cases pending
as of June 2014.4 As the report describes below, large numbers of individuals—including those
with longstanding family and community ties—face deportation from Northern California without
the help of a lawyer.
Unlike criminal defendants, who are constitutionally entitled to a lawyer even if they are charged
with minor offenses like shoplifting, the federal government has taken the position that
immigrants facing deportation generally do not have the right to counsel unless they can pay for a
lawyer or find someone to represent them for free. 5 An immigrant who has lived in Northern
California for most of his life can face permanent banishment from his family and community
because he is behind bars and without counsel to help him navigate the complexities of the
immigration legal system.

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This report focuses on immigrants who are locked up during their removal proceedings because
they are the least likely to be represented by counsel and face the greatest barriers to
representing themselves in their own removal proceedings. Like other unrepresented individuals
facing removal, detained immigrants must navigate the immigration laws—which are
extraordinarily complex—on their own. However, they face additional—often insurmountable—
barriers because they are behind bars. Detained immigrants cannot work to pay for their own
representation. While locked up, they suffer from limited access to legal materials, restrictions on
outside visits from family and friends, and limitations on phone calls and mail.6 When these
immigrants are forced to represent themselves, the already-overburdened immigration court
system is further impacted because immigration judges must spend more time on their cases. On
behalf of the National Association of Immigration Judges (NAIJ), Judge Dana Marks of the San
Francisco Immigration Court has written: “NAIJ strongly endorses initiatives which increase the
likelihood that respondents in Immigration Court proceedings are represented by attorneys.”7
The nation’s flawed deportation system—which imposes removal on many of Northern California’s
immigrants without giving them access to counsel—has far-reaching effects on Northern
California's families and communities. Northern California includes several counties with the top
ten highest percent of foreign-born residents in California, including Santa Clara County, San
Mateo County, San Francisco County, Monterey County, and Alameda County.8 Deportation
affects not only the immigrant who is in proceedings, but also his family members, who may be
U.S. citizens or lawful permanent residents. Our survey of Bay Area nonprofits providing legal
services to immigrants who have been locked up reveals that over 50% of the immigrants had
lived in the United States for at least ten years or more. 77% of detainees had family members
living at home in the United States, and 65% of them were employed before they were put into
deportation proceedings.
The deportation of a family’s breadwinner or primary caregiver has devastating consequences for
the spouse and children who depend on his earnings, including harm to their financial,
educational, physical, and mental wellbeing.9 Deportation of a parent can cause children to enter
the child welfare system, and result in children suffering lasting psychological harm that impacts
their long-term economic and social stability.10 These social and economic costs of deportation
are largely borne by Northern California's counties, which administer public health, education, and
social services.
New York City has recently become the first city to fund the full representation of detained
immigrants, 11 after two extensive reports by the Katzmann Study Group studying and advocating
for such representation.12 While California and cities like San Francisco have started to recognize
the acute challenges that recent child migrants from Central America face—through recentlyannounced programs to fund legal representation for them—no program currently exists to fully
represent detained immigrants in Northern California.
This report describes the first studies of the extent and effect of legal representation for Northern
California’s immigrant detainees. The report summarizes the findings of two studies we

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

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conducted. The first study examines available data from the Executive Office of Immigration
Review (EOIR)—which includes San Francisco’s Immigration Court—to analyze the effect of
representation on case outcomes for detainees. In the second study, we surveyed every Northern
California nonprofit organization that provided low- or no-cost representation to more than five
detained adult immigrants before the San Francisco Immigration Court over approximately the
past year. The survey results document what Northern California immigrant families already
know. Local nonprofits are working at full capacity but still only have the resources to provide
services to a very small number of immigrant detainees.
The report concludes by proposing a pilot program to provide additional representation to
Northern California’s detained immigrants as quickly as possible, based on currently available
private and public funds. The proposed pilot also provides staffing and support to engage in the
process of securing longer-term public funds to provide representation to all of Northern
California’s detained immigrants.

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

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9

Key Findings
‣

The overwhelming majority of detained immigrants in removal proceedings before
the San Francisco Immigration Court were not represented by counsel.
Roughly 2/3 of detained immigrants had no legal representation at any point in their
removal proceedings.

‣

Represented detainees were at least three times more likely to prevail in their
removal cases than detainees who were not represented by counsel.
Based on our analysis of all individuals detained in a year-long period, detained
individuals without counsel only prevailed 11% of the time. By contrast those with
lawyers prevailed 33% of the time.

‣

Over 50% of detainees represented by the surveyed nonprofits had lived in the
United States for at least ten years or more. 77% of detainees had family members
living at home in the United States. 65% of detainees were employed prior to being
placed in detention.

‣

Detainees represented by the nonprofits we surveyed won their deportation cases
83% of the time.
This success rate stands in stark contrast to the results of the Executive Office of
Immigration Review (EOIR) study, in which detained individuals without counsel only
prevailed 11% of the time. 13

‣

Detainees represented by the surveyed nonprofits were granted bond over 71% of
the time, in cases where bond was requested.
This means that the detainees were released and could fight their cases from home with
the support of their families, while employed, and with the ability to more easily access
documents helpful to their immigration cases.

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

OCT 2014

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Background
Deportation and Detention in Northern California

Over approximately the past year,14 the Department of Homeland Security (DHS) detained
4,152 immigrants under the jurisdiction of the San Francisco Immigration Court while DHS
pursued their deportation. 15 These people—who included longtime lawful residents of the
United States—were not detained because they were facing criminal charges. Rather, DHS
incarcerated them while their deportation cases were pending in immigration court.16 Some
of these individuals face detention for many months while their immigration cases are
resolved.17

Immigration detention is jail.
In Northern California, DHS currently holds most detainees in three county-run facilities: the Yuba
County Jail in Yuba, the Rio Cosumnes Correctional Center (RCCC) in Sacramento, and the West
County Detention Facility in Richmond.18 Together, these three facilities had an average total
population of 599 immigrant detainees per day in fiscal year 2014.19 Immigration detention
means incarceration in jail facilities with barbed wire and cells, alongside others serving time for
criminal convictions. 20 Detainees held at these facilities wear prison uniforms and face
restrictions on their visitation, movement, meals, education, phone access, and recreation. Before
detainees are transported to immigration court for hearings, ICE officials wake them up very early
in the morning—sometimes as early as 2 a.m.—and some detainees have no idea where they are
going. They may be subject to solitary confinement or other restrictions. Human rights
organizations have documented problems with detention conditions, such as the excessive use of
restraints and lack of access to healthcare and exercise. 21 One attorney we interviewed reported
that her detained clients only see a few hours of daylight per day. In San Francisco, with the help
of pro bono counsel, a class of detainees has challenged DHS’s practices restricting their ability to
make telephone calls from detention.22

To stay in the United States with their families, immigrants detained in Northern
California must navigate complex and intricate immigration laws and procedures.
For many detainees, the immigration removal proceeding is a complicated, multiple-step process
involving many federal agencies, numerous immigration statutory and regulatory sections,
voluminous agency and federal case law, and detailed factual evidence from the United States and

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Study of Legal Representation of Detained Immigrants in Northern California

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11

abroad. It is no surprise that the immigration statute has been ranked “second only to the
Internal Revenue Code in complexity.” 23
In the typical case, DHS starts immigration removal proceedings against an immigrant by filing a
Notice to Appear (NTA) in immigration court.24 This is the point when DHS usually makes a
decision as to whether to detain the immigrant. At the immigrant’s first hearing—called a master
calendar hearing—the immigrant can challenge DHS’s charges by arguing that he should not have
been placed in removal proceedings. The legal arguments involved here can be very complex, and
involve precedent from the Ninth Circuit Court of Appeals and the U.S. Supreme Court.25 At
around the same time, the noncitizen can separately request that the immigration judge
reconsider DHS’s decision to detain him, and ask the judge instead to grant release on bond, a
legally and factually detailed process that typically involves testimony and the submission of
written testimony and documents proving residence, employment, family ties, and
rehabilitation. 26 If the immigration judge decides to continue to detain the immigrant—or if the
immigrant cannot afford to pay bond—he stays in detention while he fights his case.
In cases where the immigrant does not have a legal challenge to DHS’s charges or where he
cannot convince the immigration judge that the charges are legally flawed, the immigrant may
then request a range of discretionary relief from removal, including, but not limited to, asylum,
cancellation of removal, and adjustment of status—types of relief available to individuals fleeing
persecution, those with longstanding ties to the U.S., and those with U.S. citizen or lawful
permanent resident family members. 27 Each of the available types of relief requires the
immigrant to establish legal eligibility—another potentially complicated legal inquiry—as well as
establishing that he merits relief based on the facts.28 The factual investigation required for these
types of relief encompasses obtaining witness declarations from family members, employers,
friends, religious leaders, and others; research on the conditions in the immigrants’ country of
origin; paper records like medical, employment, and tax records; and expert statements from
psychologists, doctors, and social scientists. Successful applications can be accompanied by
hundreds of pages of supporting factual evidence. In some cases, the immigrant may also be
eligible to apply for relief to a different agency, U.S. Citizenship and Immigration Services (USCIS),
if the immigrant can demonstrate he was a victim of crime or domestic violence, or if he entered
the U.S. as a child and completed his education here.29 After proceedings before an immigration

Immigrants may give up strong cases because they cannot bear to be locked up.
Because of how difficult immigration detention is—particularly for immigrants with family or who
have previously suffered torture or abuse—immigrants may give up strong cases simply to get out
of detention. One federal court case recounts how an asylum-seeker agreed to her removal after
seventeen and a half months in detention, saying that the detention was, in her words, "affecting
me physically and destroying me mentally." Gomez-Zuluaga v. Atty. Gen., 527 F.3d 330, 339 n.4
(3d Cir. 2008).

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Study of Legal Representation of Detained Immigrants in Northern California

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Background

12

judge in San Francisco, the immigrant can appeal to the Board of Immigration Appeals (BIA), an
administrative reviewing body, and potentially the Ninth Circuit Court of Appeals.30 The entire
process can last months and even years.31
For detainees in Northern California, removal proceedings involve multiple hearings before a San
Francisco immigration judge in a courtroom. Detainees are not entitled to lawyers as a matter of
course. They must pay for a lawyer or find pro bono help if they want legal counsel. 32 By
contrast, DHS, the agency that serves the prosecutorial function in removal proceedings, is
represented by a government attorney. For unrepresented immigrant detainees, the immigration
judge who decides the case, an employee of the Executive Office of Immigration Review (EOIR)
who wears a robe and assumes the judicial role in the proceedings, may be the only person who
reviews the detainee’s case. But immigration judges are hampered in their ability to do so
because they are extremely overburdened and carry huge caseloads. In fiscal year 2014, for
instance, eighteen San Francisco immigration judges faced 23,969 pending cases.33 Immigrant
detainees who are not represented reduce the efficiency of these already overburdened
immigration judges. Immigration Judge Dana Marks of the San Francisco Immigration Court
explains that, when an immigrant detainee lacks legal representation, immigration judges may
“use valuable time and resources figuring out the facts and the law of the case.” 34 In a recent
survey of the nation’s immigration judges, 92% of the judges agreed that “When the [immigrant]
has a competent lawyer, I can conduct the adjudication more efficiently and quickly.”35
Representation “affects the efficiency of adjudicative proceedings.” 36

DHS detention and deportation of immigrants has a profound effect on Northern
California immigrant families and communities.
Many of the individuals that ICE detains and tries to deport from Northern California have deep
and longstanding ties to Northern California families and communities. Some are lawful
permanent residents. Those who are undocumented are likely to have U.S. citizen children and
live in “mixed-status” families with some members who are U.S. citizens, others who are lawful
residents, and still others without immigration status. 37 Northern California includes several
counties with the top ten highest percent of foreign-born residents in California, including Santa
Clara County, San Mateo County, San Francisco County, Monterey County, and Alameda County.38
For example, San Francisco’s adult foreign-born population comprises nearly 40% of the city.39
Foreign-born individuals make up 39% of the population of the City of San Jose40 and over 35% of
the population of Santa Clara County.41 Many of these individuals have longtime ties to the Bay
Area. One recent study of San Mateo County found, for example, that “[t]he median length of
time that [foreign-born residents] had lived in [the county] was 14 years.” 42

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

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Background

13

Detention and deportation of Northern California’s immigrants causes family
separation and strains city and state support networks.
The deportation and detention of an immigrant with Northern California family ties materially
affects the economic, emotional, and physical wellbeing of children and spouses in Northern
California communities, many of whom are U.S. citizens and lawful permanent residents.
Detention and deportation of a family’s primary wage earner or primary caregiver has a
predictable consequence for family members. A recent report concluded that immigration-related
arrests cause household income to fall to half on average, and leave one-fourth of households
without anyone earning wages.43 The economic realities that hit when a household’s main earner
is deported translate into increased crowding in living quarters, alarming food scarcity, and poorer
health outcomes for those family members left behind.44 The Urban Institute’s 2010 study of
families of detainees found that 28.3% of families suffered from insufficient food access after six
months; they experienced hunger and could not afford to eat.45 More than 80% ran out of food
and did not have the money to get more.
If both parents are deported, children may end up in the child welfare system. The American
Immigration Council estimated that in 2011, 5,100 children with a detained or deported parent
became wards of the state. 46 Even when one parent is able to retain custody of children, removal
shatters families’ emotional bonds. Human Impact Partners noted in its report documenting data
from extensive interviews with non-citizens and their families that detention and deportation
deeply damage familial relationships.47 An Urban Institute study found that in the first six months
after an immigration arrest affecting their parents, two out of three children demonstrated
changes in eating and sleeping habits, more than half cried more and were more afraid, and over
a third were more withdrawn, clingy, angry or aggressive. 48 Children who witnessed their parents’
arrest exhibited more drastic behavioral changes.49 Behavioral challenges like aggression and
withdrawal negatively affect a child’s school readiness and social adjustment, which can have
longer-term consequences for the child’s literacy skills, employment prospects, and mental
health.50

DHS detention and deportation practices in Northern California harm
immigrants fleeing persecution abroad.
Under current immigration law, an immigrant who comes to the United States fleeing persecution
abroad is often detained while his or her case is resolved in the San Francisco Immigration Court.
Removal proceedings in these cases are a matter of life and death, because individuals face
threats of torture and death if deported. The nonprofits we surveyed have represented lesbian,
gay, bisexual and transgender (LGBT) individuals who were attacked and threatened because of
their sexuality; women escaping domestic abuse whose claims were ignored by the police abroad;
and Central American refugees fleeing gang violence. Amnesty International has found that
asylum seekers “may be detained for months or even years as they go through deportation

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Study of Legal Representation of Detained Immigrants in Northern California

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Background

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procedures that will determine whether or not they are eligible to remain in the United States.”51
Detention worsens these individuals’ already fragile mental states, resulting in even less capacity
to handle the challenges of removal proceedings. Medical research confirms that detention of
asylum-seekers results in high levels of psychological distress, exacerbated by inadequate mental
health services in immigration detention facilities.52 These and other individuals may face removal
proceedings and detention when they try to make their claim for asylum or other protection from
persecution. Nevertheless, like other immigrants in removal proceedings, asylum seekers and
others fleeing persecution are not entitled to attorneys unless they can pay for it themselves or
find a pro bono lawyer.

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Study of Legal Representation of Detained Immigrants in Northern California

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Introduction

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Research
Methodology

Executive Office for Immigration Review (EOIR) Data Set
Data for the EOIR data set was obtained through a Freedom of Information Act (FOIA) request
covering all removal cases in which an Immigration Judge made a final decision at the San
Francisco Immigration Court during the time period between March 1, 2013 and February 28,
2014.
Our study is of actual EOIR data, and does not reflect a randomized experiment relating to
representation.  Our conclusions are based on case outcomes in cases where individuals were
represented by counsel, as compared to outcomes in cases without counsel.

Nonprofit Removal Defense Provider Survey Data Set
Data for the nonprofit removal defense provider data set was drawn from a survey of
nonprofits in Northern California that provided representation, at low cost or no cost, to at
least five detained immigrants in removal proceedings in San Francisco Immigration Court,
during the time period between April 1, 2013 and April 1, 2014.
The data set is necessarily affected by the intake processes of each of the surveyed nonprofits, each
of which employ different criteria for selecting cases for representation.  Our analysis of the survey
data does not take into account the potential impact of the surveyed nonprofits' case selection
processes.

Access to Justice for Immigrant Families and Communities
Study of Legal Representation of Detained Immigrants in Northern California

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Analysis | EOIR Dataset

16

Analysis
Executive Office for Immigration Review (EOIR)
San Francisco Data Set

Despite the harsh effects of an individual’s deportation on herself, her family, and her
community, the immigration system does not generally provide appointed counsel to people
facing deportation in Northern California or anywhere in the country.53 We examined the
EOIR data for approximately the past calendar year to determine how many individuals in San
Francisco Immigration Court are able to obtain representation—either by paying for it or
finding a nonprofit or pro bono provider—and how much more likely those with counsel are to
win their cases. As we explain further below, our analysis of the EOIR data revealed that
detainees with lawyers are three times more likely to win their case than those
without. For the calendar year we analyzed, detainees without representation only had an
11% chance of winning their case; detainees who were represented by counsel had a 33%
chance of winning their case.

Our EOIR data set comprised 8,992 cases and included all removal cases in which an Immigration
Judge (IJ) made a final case related decision at the San Francisco Immigration Court during the
time period between March 1, 2013 and February 28, 2014.54
The cases in this time period can be broken into three categories:55

Individuals who were...

never detained in
their removal
proceedings

initially detained but
later released during
proceedings

detained throughout
their proceedings

4841

2210

1941

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Study of Legal Representation of Detained Immigrants in Northern California

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Analysis | EOIR Dataset

17

Detained immigrants are less likely to have representation.
Despite the fact that detained individuals with attorneys are far more likely to avoid deportation,
detainees are far less likely to have lawyers. For our data set, the proportion of detained
individuals with representation (33%) is less than half of the proportion of those not detained with
representation (84%).

FIGURE 1
Cases in Which Immigrant was Represented by an Attorney
Figure 1 shows the percent of cases in which the immigrant had attorney representation. The
comparison is done for each category of individuals in proceedings: those detained throughout
their proceedings; those detained but later released; and those never detained.
Percentage of cases with representation:
100%
75%

79%

84%

50%
25%

33%

0%
Individuals detained
throughout their
proceedings

Individuals initially
detained but later
released during their
proceedings

Individuals never
detained during their
proceedings

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Study of Legal Representation of Detained Immigrants in Northern California

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Analysis | EOIR Dataset

18

Detained individuals with lawyers were three times more likely to prevail in their
removal cases than those without attorneys.
Represented detainees avoided deportation 33% of the time, whereas unrepresented detainees
avoided deportation only 11% of the time.56 For all of the three groups, legal representation
meant that individuals were far more likely to ultimately prevail in their cases. In detained cases,
individuals with lawyers had three times as high a chance of prevailing as those without counsel.

FIGURE 2
Cases in Which Immigrant Succeeded in Fighting Deportation
Figure 2 compares outcomes for cases in which individuals were represented by counsel against
those not represented by counsel. The comparison is done for each category of individuals in
proceedings: those detained throughout their proceedings; those detained but later released; and
those never detained.
WITH representation:
WITHOUT representation:
100%
91%

87%

75%
50%
25%
0%

54%

33%

48%

11%
Individuals detained
throughout their
proceedings

Individuals initially
detained but later
released during their
proceedings

Individuals never
detained during their
proceedings

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Analysis | EOIR Dataset

19

Immigrants who have lawyers are more likely to file applications requesting the
Immigration Judge to allow them to stay in the United States.
In deportation proceedings, immigrants can fight to stay in the United States by filing an
application for relief, to argue that the judge should let them stay in the country because of family
and community ties, or because they fear persecution abroad. Our study revealed that detained
immigrants with lawyers were dramatically more likely to file relief applications than those who
did not have attorneys. Detained immigrants were more than twice as likely to request relief if
represented; non-detained immigrants were more than three times as likely to request relief if
represented; and initially detained immigrants were more than four times as likely to request
relief if represented.57

FIGURE 3
Percentage of Individuals Applying for at Least One Form of Immigration Relief
Figure 3 compares the prevalence of applications for relief from removal in cases where
individuals are represented by lawyers against those not represented by lawyers.
WITH representation:
WITHOUT representation:
100%
75%
50%
25%

76%

67%

58%
26%

0%
Individuals detained
throughout their
proceedings

23%

15%
Individuals initially
detained but later
released during their
proceedings

Individuals never
detained during their
proceedings

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20

Representation is particularly critical at the early stage of removal proceedings,
when the immigration judge decides whether to release a detained immigrant on
bond.
Under immigration law, after DHS makes an initial bond determination, immigrants can request a
bond hearing, where an immigration judge considers whether the person should be released.58 If
an individual is released on bond, she can fight removal from outside of detention, where she is
more likely to obtain counsel and more likely to prevail in her proceedings, given the increased
access to employment, family support, community involvement, and paid counsel that release
likely represents.
Attorneys are critical to helping detainees obtain release on bond. Because bond hearings
typically occur on a short timeline, detainees have very little time to collect and submit key
documents, such as letters from family or employers, tax records, and proof of family
relationships.59 It is virtually impossible for unrepresented detainees—who are incarcerated in
prison-like conditions with limited access to mail and telephones and virtually no access to the
Internet—to obtain these critical records.
Attorneys can also advocate for lower bond amounts. Our examination of the EOIR data set
revealed that the average bond amount set by San Francisco Immigration Court judges during the
study period was $5,742. If immigration judges set high bond amounts, detained individuals who
cannot pay the bond amount will not be released and will instead remain detained. Even those
with some funds to pay high bond amounts face an impossible choice: should they use their
limited funds to pay bond, or should they pay for an attorney to represent them in their removal
proceedings? As the recent Katzmann Study Group reports in New York have clarified: “lack of
representation and high bond amounts create a vicious cycle, with access to counsel serving as an
important factor in obtaining bond and detention creating a major obstacle to obtaining
counsel.” 60

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21

FIGURE 4
Bond Amounts for Immigrants Released on Bond While Fighting Deportation Cases
Figure 4 shows the prevalence of bond amounts that immigration judges set for immigrants who
were detained while fighting their deportation cases.
Number of cases where bond was ordered:
140
120
100
80
60
40
20

+
20
,0
01

18
,5
00
$

16
,5
00
$

14
,5
00
$

12
,5
00
$

$

10
,5
00

85
00
$

65
00
$

45
00
$

25
00
$

$

50
0

0

A Note on EOIR Data Analysis
Because our study is of actual EOIR data, and not a randomized experiment relating to
representation, we can conclude only that representation is associated with better case
outcomes, not that representation necessarily causes the outcomes. Other factors—including
that immigrants with stronger claims may be more likely to find representation—could be
responsible as well for the better case outcomes.
In addition, the analysis likely overstates the number of individuals who were represented
because the EOIR data set indicates that an immigrant was represented if she was represented at
any stage in her removal proceedings. This means that someone who was represented for only
one hearing over a two year period would still be counted as represented for the purposes of our
analysis.

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Analysis
Northern California Removal Defense
Provider Survey

Northern California, and in particular, the Bay Area, is fortunate to have a rich and competent
group of nonprofits currently engaged in detained removal defense work on behalf of indigent
immigrants. Their rates of success in winning bond for their detained clients is 71%, well
above the bond rates generally found in our EOIR data analysis, even for those who have
attorneys. Similarly, their rate of prevailing in their clients’ removal hearings is 83%, far
exceeding the general San Francisco EOIR averages. Unfortunately, however, the nonprofits
currently engaged in detained removal defense work can only meet a small fraction of the
need for counsel.

Nonprofit Organizations Surveyed
We surveyed all of the nonprofit organizations in Northern California that represented at least five
or more adult detained immigrants in removal proceedings before the San Francisco Immigration
Court for no fee or for low fee between April 1, 2013 and April 1, 2014.61 All of the organizations
that were surveyed responded to the survey. 62 The organizations include: Asian Americans
Advancing Justice, Asian Law Caucus (San Francisco, CA); Central American Resource Center (San
Francisco, CA); Centro Legal de la Raza (Oakland, CA); Community Legal Services in East Palo Alto
(East Palo Alto, CA); Dolores Street Community Services (San Francisco, CA); East Bay Community
Law Center (Berkeley, CA); Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (San
Francisco, CA); Pangea Legal Services (San Francisco, CA); Social Justice Collaborative (Oakland, CA);
and University of California, Davis, School of Law, Immigration Law Clinic (Davis, CA).
The nonprofits we surveyed provide a wide range of detained removal defense work, including,
but not limited to: legal challenges to removability; representing immigrants in persecution and
torture based claims, such as asylum, withholding of removal, and relief under the Convention
Against Torture;63 discretionary waiver applications for certain long term permanent residents;64
discretionary waiver applications for certain long term nonpermanent residents;65 applications for
relief based on being a victim of a crime (U-Visa, T-Visa, VAWA); 66 applications for relief based on
certain juvenile dependency or family court findings (SIJS); applications for temporary residency
for certain nationalities; 67 and requests for prosecutorial discretion, including requests for
termination of proceedings, administrative closure of proceedings, and Deferred Action for
Childhood Arrivals (DACA).68

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The surveyed organizations had an average of 2.3 full-time staff attorneys working on detained
removal cases. The average number of languages (not including English) spoken by members of
the staff at a nonprofit organization is approximately three, with a total of 14 different languages
spoken by staff at the nonprofits we surveyed (Spanish, Greek, Tamil, French, Farsi, Italian,
Portuguese, Cantonese, Mandarin, Vietnamese, Urdu, Hmong, German, and Sierre Leone Creole).
Six of the ten surveyed nonprofits employ income criteria in selecting cases, in that they will only
represent clients below a designated income cut-off.
For purposes of reporting the survey results, the charts below refer to each of the nonprofit
organizations by a randomly assigned number (Organization (“Org”) 1 to Organization 10). The
survey questions relating to cases accepted, cases completed, and results were limited to the time
frame April 1, 2013 to April 1, 2014. The total number of cases accepted by the surveyed
nonprofits during that timeframe was 214.

Types of Clients Served and Community Members Impacted by Legal Services
The survey results provide important information relating to the demographics of the detained
immigrants served, including their length of residency in the United States and their family ties.
Our survey results confirm what Northern California immigrant families already know: many of
the detained clients of local nonprofits have deep and longstanding ties in this country.

‣

Over 53% of the clients represented by the surveyed nonprofits had lived in the United
States for ten or more years.

‣

77% of the surveyed nonprofits’ detained clients lived with other family members prior to
their detention by ICE.69

‣

48% of the nonprofits’ detained clients were separated from children who were living in their
home.70

‣

Over 57% of the relatives living at home and separated from the detained immigrants were
United States citizens.71

‣

65% of detained immigrants represented by the surveyed nonprofits were employed in the
United States prior to being detained.72

‣

78% of the detained immigrants represented by the nonprofit organizations resided in
Northern California prior to their detention.73

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Nonprofit Organizations’ Success Rates Far Surpass General EOIR Data Reported
Success Rates
Perhaps one of the most notable pieces of information obtained through the survey results and
analysis was the remarkably high level of success that the surveyed nonprofit organizations
achieved on behalf of their clients.74 For example, the average success rate of obtaining bond
and securing release on behalf of a detained immigrant where bond was requested was 71.4%.75
The (weighted) average amount of bond issued by the Immigration Judges (where bond was
requested and obtained) was $3,411. This is significantly lower than the $5,742 average bond
amount in San Francisco based on the EOIR dataset analysis. See Figure 4, supra. This difference
—amounting to $2,331—is particularly substantial for indigent detainees, who may not have the
resources to pay for high bonds, and are not able to work while detained.

FIGURE 5
Bond Results—Nonprofits Surveyed
Figure 5 shows the percent of cases in which a bond hearing was requested and the individual
was released on bond.
100%
75%

100%
81%

50%

70%

80%

100%
71%

60%

50%

25%
0%

33%

Org 1

Org 2

Org 3

Org 4

Org 5

Org 6

Org 8

Org 9

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In addition to achieving success at obtaining release from detention for their clients, the nonprofit
organizations surveyed also achieved impressive success in securing successful resolutions of
their cases. Of the cases completed by nonprofits during the surveyed time period,76 83% were
successfully resolved such that the detained immigrant was permitted to remain in the United
States indefinitely.

FIGURE 6
Cases in Which Immigrants Won and Were Permitted to Stay in the United States
Figure 6 shows the percentage of cases completed in which the case was successfully resolved
such that the immigrant was permitted to remain in the United States.
100%

100%
88%

75%

100%

92%

100%
75%

73%

72%

80%

50%

50%

25%
0%

Org 1

Org 2

Org 3

Org 4

Org 5

Org 6

Org 7

Org 8

Org 9

Org 10

The average rate of success for the nonprofits surveyed (83%) is well above the average rate of
success indicated by our analysis of the EOIR data set for those without counsel (11%). 77 In a
comparison of the two data sets, the rates of success for the surveyed nonprofits are also
significantly higher than even those who did have counsel (33%). See Figure 2, supra.

Nonprofit Organizations are Working at or Above Capacity
Unfortunately, despite the levels of success, the nonprofits currently engaged in this work are only
able to assist a fraction of those who are in need. As described above, the average number of
attorneys working on the detained removal defense docket is only 2.3 per organization. The total
number of attorneys working with the surveyed nonprofits engaged in detained removal defense
work for adults is 23.
The nonprofits surveyed overwhelmingly indicated that the reason for not accepting more cases
was related to a lack of staff and funding. The organizations surveyed accepted a total of 214

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cases for representation during the period between April 1, 2013 and April 1, 2014. All of the
organizations indicated that, with this caseload, they lacked further resources to represent
additional individuals facing removal. Out of the ten organizations surveyed, six collected data on
number of cases not accepted for representation during the surveyed time period. The number
of cases these six organizations were unable to accept exceeded 1000.78
The survey results demonstrate two critical points. The first is that representation by Northern
California nonprofits is associated with a high rate of successful outcomes for detained individuals
in removal proceedings. Because a majority of immigrants represented by surveyed nonprofits
have family and community ties in the United States, the result of the nonprofits’ success is that
their clients can remain in Northern California with their families. The second is that removal
defense nonprofits in Northern California do not have the capacity to meet the current and
significant need of detained immigrants for competent counsel.

The Effects of Case Selection by Surveyed Nonprofits
Each of the surveyed nonprofits has a different way of selecting cases for representation—this is,
of choosing which cases to take from all of the immigrants seeking their representation. These
selection criteria likely have an effect on each nonprofits' success rates: a nonprofit that selects
cases based on likelihood of success will be more likely to secure better outcomes for its clients.
Our analysis of the survey data does not take into account the potential impact of the surveyed
nonprofits’ case selection processes.

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27

Conclusion and Next Steps
Northern California’s families know all too well the realities of detention and deportation in
our communities. Deportation means banishment from families, homes, and communities.
Members of Northern California’s immigrant communities have appeared in immigration court
alone to fight their deportation, despite the complexity of the immigration laws and the fact
that they face a government attorney typically well versed in the law. The challenges of
deportation in Northern California have grown as the annual rate of deportations skyrockets.
In Northern California, thousands of individuals are detained in facilities far from family,
without an attorney to advocate on their behalf.
This report examines, for the first time, the concrete effect of representation for Northern
California’s detained immigrants. We have learned that detained immigrants with lawyers are
over three times more likely to prevail in their cases. Many of these individuals have viable
claims that require substantial legal and factual preparation. And the local nonprofit removal
defense providers—though working at full capacity—are not able to handle the crushing need
for representation. These nonprofits informed us that they are forced to turn away cases
because they lack the staffing and resources to provide representation to immigrants in need.
The next step for addressing Northern California’s immigrant representation crisis is the
development of a realistic framework for indigent removal defense representation. New York
City has recently provided a model for such representation through the funding and creation
of a universal representation program for every indigent immigrant detainee facing removal
proceedings in New York’s immigration courts.79 Northern California should follow this lead,
and establish a universal representation framework for detained immigrants.
Until such a model is fully funded and operational, the Northern California Collaborative for
Immigrant Justice proposes to launch a pilot program in the short term, given the urgent need
for representation of Northern California’s detained immigrant population.
The Collaborative’s goals for the pilot program are to further examine the challenges faced by
detained immigrants and the difference that representation makes. Through the pilot
process, the Collaborative hopes to refine its proposal for a removal defense project for
detained individuals as well as an accompanying funding strategy. Because of the scale of the
representation crisis we face in Northern California, the solution will require partnerships
between nonprofit, pro bono, and private bar legal providers; ICE and EOIR; state, city, and
county governments; and the philanthropic community. Through the sustained involvement
of all of these key actors, the Collaborative hopes to extend to Northern California’s detained
immigrants the basic protection of competent representation in removal proceedings.

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28

Appendix and Endnotes

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29

Appendix A
Assumptions of EOIR Data Analysis

1. The study used the last year of available data (March 1, 2013 to February 28, 2014). Some
proceedings are excluded because they lacked a final outcome during this time period. This
means that the study slightly underestimates the total number of proceedings. The study may
also overestimate slightly how many of the cases were detained throughout; some may have
been released after the data cut-off date.
2. In order to measure whether a case was represented, the study asked, for each case, whether
the alien was represented during any “proceeding.” A proceeding in this context does not
mean a proceeding in the formal sense, but rather a row in the “proceeding” table. Often cases
have more than one proceeding row associated with them even if there was only one formal
proceeding—for example, a new proceeding is generated when there is a change of venue. In
order to be sure that we are not underestimating the rate of representation, we coded a case
as represented for the merits hearing if any proceeding had a representative associated with it
at any time. For example, if a case had five proceeding rows (which is unusual), and just one of
those rows referred to a lawyer, the study included the case as represented.
3. Unlike the New York Immigrant Representation Study, our study was unable to distinguish
between dependent and non-dependent cases. We believe that an adjustment for such cases
is unlikely to be significant.
4. We measured detention status as of an individual’s last hearing date. There is therefore no
way to distinguish between immigrants who spent long and short periods in detention.
5. The study coded cases as not leading to deportation if the EOIR outcome was any of: “Alien
Maintains Legal Status,” “Case Terminated by IJ,” “Conditional Grant,” “Granted,” “Relief or
Rescinded,” “Legally Admitted,” “Prosecutorial Discretion – Terminated,” “Failure to Prosecute
(DHS Cases Only),” “Haitian,” "Temporary Protected Status,” and “Prosecutorial Discretion Admin Close."
6. The study coded cases as “Removal/VD” if the EOIR outcome was any of “Remove,” “Voluntary
Departure,” “Excluded,” or “Deported.” The first two of these were overwhelmingly the most
common; the last two codes are holdovers from an old statutory regime.
7. A small number of cases during the study period had outcomes with unintelligible outcome
codes. There were 20 never detained cases with such codes; 11 initially detained cases; and 10

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detained cases throughout proceedings. Given the overall number of cases, this level of
measurement error is acceptable; regardless of the actual outcomes of these cases, the
general results we note would hold.

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31

Appendix B
Breakdown of Relief Applications by Type

Table 1

LPR
Related

Non-LPR
Related

Other

Persecution

Voluntary
Departure

Represented

15%

10%

2%

35%

18%

Unrepresented

4%

1%

0%

9%

17%

Table 1 shows the percentage of detained cases in which relief applications were filed.80

Table 2

LPR
Related

Non-LPR
Related

Other

Persecution

Voluntary
Departure

Represented

4%

26%

3%

39%

20%

Unrepresented

1%

3%

0%

9%

5%

Table 2 shows the percentage of initially detained cases in which relief applications were filed.

Table 3

LPR
Related

Non-LPR
Related

Other

Persecution

Voluntary
Departure

Represented

2%

37%

8%

57%

16%

Unrepresented

1%

6%

1%

17%

13%

Table 3 shows the percentage of never detained cases in which relief applications were filed.

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Appendix C
Assumptions of Nonprofit Survey Data Analysis

1. Of the ten organizations surveyed, six organizations indicated that they maintained separate
data for their detained and non-detained removal defense docket. Of the four organizations
that reported that they did not keep separate data, each was nevertheless able to review the
detained docket files in order to report the requested information accurately.
2. The survey questions relating to the number of cases accepted and the results of those cases,
including bond results and substantive outcome results, were limited to the following time
frame: April 1, 2013 to April 1, 2014. This means that there were a significant number of cases
accepted during the time frame for which there were no final results in San Francisco
Immigration Court as the cases remained pending as of April 1, 2014.
3. Our analysis was necessarily affected by the accuracy of each surveyed organization’s selfreporting as to their case outcomes.
4. Our survey analysis does not examine representation or outcomes when the immigrant or
DHS appealed an immigration judge’s decision to the Board of Immigration Appeals (BIA), or
when the immigrant subsequently petitioned for review of the BIA decision to the Ninth Circuit
Court of Appeals.
5. The total number of cases accepted by the surveyed nonprofits during April 1, 2013-April 1,
2014 was 214.
6. The survey instrument referred to throughout this report was developed by Stanford Law
School Immigrants’ Rights Clinic and was based, in large part, on a similar survey used in the
New York representation study. After developing the survey, we first created a list of nonprofit
organizations currently engaged in representing detained adult immigrants in removal
proceedings before the San Francisco Immigration Court. The list was a result of queries
regarding which organizations were engaged in this work. After identifying the ten
organizations in Northern California currently engaged in this work, we emailed each of them
the 18 page survey instrument. The survey instrument asked general questions about number
of attorneys working on the detained immigrant docket, the experience of the attorneys, and
the types of services provided. The survey instrument also asked more specific questions
related to the types of detained services provided to adults from April 1, 2013 to April 1, 2014
and the results of the services provided to detained immigrants. The survey instrument asked
questions relating to current funding sources and barriers encountered in the representation

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of detained immigrants. Subsequent to receiving the responses, we then engaged in follow-up
to ensure accuracy before compiling the information and reporting it. The survey instrument
is on file with the authors.

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34

Endnotes

1

In fiscal year 2014, the Northern California detention facilities had an average population of 599

immigrant detainees per day. ERO Custody Management Division Response to FOIA 14-03470, available at
http://www.ice.gov/foia/library/.

2

The immigration statute provides: “In any removal proceedings before an immigration judge and in any

appeal proceedings before the Attorney General from any such removal proceedings, the person concerned
shall have the privilege of being represented (at no expense to the Government) by such counsel,
authorized to practice in such proceedings, as he shall choose.” 8 U.S.C. § 1362 (1996). The Executive Office
of Immigration Review (EOIR) has recently launched efforts to assist some children in removal proceedings
through the justiceAmeriCorps program. See http://www.nationalservice.gov/newsroom/press-releases/
2014/justice-department-and-cncs-announce-new-partnership-enhance. And following an order from a
district court in Franco-Gonzalez v. Holder, No. CV 10-02211 (C.D. Cal.) (Apr. 23, 2013), the federal
government has provided procedures for the identification of mentally-ill detainees found incompetent, and
appointed representation in certain circumstances. See https://www.ice.gov/.../
11063.1_current_id_and_infosharing_detainess_ mental_disorders.pdf.

3

Office of Planning, Analysis & Tech., U.S. Dep’t of Justice, FY 2013 Statistical Year Book, at A2 (2013),

available at http://www.justice.gov/eoir/statspub/fy13syb.pdf [hereinafter “DOJ FY 2013 Year Book”].

4

Transactions Record Access Clearinghouse, Immigration Court Backlog Tool, available at http://

trac.syr.edu/phptools/immigration/court_backlog/.

5

In 1893, the Supreme Court held that criminal constitutional protections do not apply to deportation

proceedings because they are purely civil in nature. See Fong Yue Ting v. United States, 149 U.S. 698 (1893).

6

Amnesty International, Jailed Without Justice: Immigration Detention in the United States (Mar. 2007)

available at http://www.amnestyusa.org/pdfs/JailedWithoutJustice.pdf [hereinafter “Jailed Without Justice”] at
32-36.

7

Letter from Hon. Dana Leigh Marks, President of the National Association of Immigration Judges (Dated

Mar. 22, 2013) (copy on file with authors) [hereinafter “Hon. Dana Leigh Marks letter”].

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8

35

Santa Clara County Office of Human Relations, A Public Forum on Immigration: Immigrant Voice (Dec.

2010), available at http://www.sccgov.org/sites/ohr/Publications%20and%20Reports/Documents/ImmigrantVoices.pdf [hereinafter "Santa Clara County Report"], at 4. According to the 2006 Census, Santa Clara
County has the highest percentage of foreign-born residents in California. Id. at 17. As of 2010, San Mateo
County “ranked fourth among counties in California and eight across the nation in the concentration of
foreign-born residents.” Silicon Valley Community Foundation, San Mateo County Immigrant Focus (2013),
available at http://www.siliconvalleycf.org/sites/default/files/publications/
svcf_san_mateo_county_immigrant_focus.pdf [hereinafter “San Mateo County Report”], at 2. According to
one report analyzing 2010 census data, “between 2000 and 2010 San Mateo County’s immigrant population
increased more than any other county in California, from 25.5 to 33.3 percent.” Id.

9

See Sara Satinsky et al., Family Unity, Family Health: How Family-Focused Immigration Reform Will Mean

Better Health for Children and Families (Human Impact Partners, June 2013), available at http://
www.familyunityfamilyhealth.org/uploads/images/FamilyUnityFamilyHealth.pdf at 8. Social science research
consistently finds that parental psychological and economic stress—such as that caused by deportation—
affects child outcomes. Rand D. Conger, Xiaojia Ge, Glen H. Elder Jr., Frederick O. Lorenz, & Ronald L.
Simons, Economic Stress, Coercive Family Process, and Developmental Problems of Adolescents (1994);
Carolyn Webster-Stratton, Stress: A Potential Disruptor of Parent Perceptions and Family Interactions (1990).

10
11

See Satinsky et al., Family Unity, supra note 9.
See Kirk Semple, New York City Council Expected to Approve 2 Plans Aiding Immigrants, New York Times

(Jun. 24, 2014).

12

See New York Immigrant Representation Study, Accessing Justice: The Availability and Adequacy of

Counsel in Immigration Proceedings (2011), available at https://www.ils.ny.gov/files/Accessing%20Justice.pdf
[hereinafter “New York Study, Part 1”]; New York Immigrant Representation Study, Accessing Justice II: A
Model for Providing Counsel to New York Immigrants in Removal Proceedings (2013), available at http://
www.cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf [hereinafter “New York Study, Part 2”].

13

As is described more fully in note 77, infra, the nonprofit survey does not completely overlap with the

EOIR data set. However, both analyses were conducted as to immigration cases in the San Francisco
immigration court over a year-long period.

14

This estimate is based on data obtained from EOIR through the Freedom of Information Act that includes

all removal cases in which an Immigration Judge made a decision at the San Francisco Immigration Court
during the time period between March 1, 2013 and February 28, 2014.

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36

4,152 individuals were detained for some or all of their removal proceedings in San Francisco

Immigration Court during the study period. Of that number, 1,943 individuals were detained for the entirety
of their proceedings, and 2,209 individuals were initially detained but later released. San Francisco
Immigration Court conducts removal proceedings in two locations: 630 Sansome Street and 100
Montgomery Street.

16

See generally 8 U.S.C. § 1226 (conferring authority to detain noncitizens while immigration proceedings

are pending).

17

See, e.g., Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009) (class action lawsuit covering all individuals

detained for more than six months); Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008)
(approximately six years of detention pending proceedings).

18

DHS enters into contracts with counties—termed Inter-Governmental Service Agreements (IGSAs)—to

house detainees. The IGSAs for Yuba County and Sacramento County are available at http://www.ice.gov/
foia/library/. The IGSA for the West County Detention Facility does not appear to be publicly available.

19

ERO Custody Management Division Response to FOIA 14-03470, available at http://www.ice.gov/foia/

library/.

20
21

See Jailed Without Justice, supra note 6, at 29.
See Jailed Without Justice, supra note 6, at 29-43. See also generally Department of Homeland Security

Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and Customs
Enforcement Facilities (Dec. 2006), available at http://www.oig.dhs.gov/assets/Mgmt/OIG_07-01_Dec06.pdf.

22

See Complaint for Injunctive and Declaratory Relief, Lyon et al. v. U.S. Immigration and Customs

Enforcement, No. C-13-05878 EMC (N.D. Cal.) (filed Dec. 19, 2013).

23

Baltazar Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (citing Castro-O'Ryan v. U.S. Dep't of Immigration

& Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1987)).

24
25

See 8 C.F.R. § 1239.1.
See, e.g., Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) (employing categorical rule to determine whether

prior conviction renders noncitizen removable); Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (same).

26

See 8 C.F.R. § 1236.1(d) (bond redetermination hearings before immigration judges). See also Matter of

Guerra, 24 I. & N. Dec. 37 (BIA 2006) (listing factors immigration judges should consider in deciding release
on bond).

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37

See generally Katherine A. Brady, Defending Immigrants in the Ninth Circuit 11-7 to 11-210 (10th ed.

2008) (listing forms of relief, eligibility issues, and discretionary standard).

28
29

See generally id.
See, e.g., 8 U.S.C. § 1101(a)(15)(U) & (T) (visas available to victims of crime and victims of human

trafficking); www.uscis.gov/humaintarian/consideration-deferred-action-childhood-arrivals-daca (describing
procedures and requirements for obtaining prosecutorial discretion for childhood arrivals).

30

See 8 C.F.R. § 1003.38 (governing appeals to the Board of Immigration Appeals); 8 U.S.C. § 1252

(governing judicial review of removal orders).

31

See United States Courts for the Ninth Circuit, 2012 Annual Report 61 (median time between filing of

appeal to final order in 2012 was 15.3 months); Immigration Court Backlog Tool, Transaction Records Access
Clearinghouse, available at http://trac.syr.edu/phptools/immigration/court_backlog/ (mean time for case
resolution for cases currently pending in immigration court as of July 2014 was 604 days).

32

See 8 U.S.C. § 1229a(b)(4)(A) (providing that alien has right to representation “at no expense to the

Government”).

33

Immigration Court Backlog Tool, Transaction Records Access Clearinghouse, available at http://

trac.syr.edu/phptools/immigration/court_backlog/. See also generally Lenni B. Benson & Russell R. Wheeler,
Enhancing Quality and Timeliness in Immigration Removal Adjudication (Jun. 2012), available at
www.acus.gov/.../Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-FinalJune-72012.pdf [hereinafter "Benson & Wheeler"].

34
35
36
37

See Hon. Dana Leigh Marks Letter, supra note 7.
Benson & Wheeler, supra note 33, at 56.
See id. at 59.
According to recent estimates, 82% of children born to undocumented immigrants in this country are

U.S. citizens. Jeffrey S. Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State
Trends, 2010, Pew Hispanic Center (Feb. 2011), available at www.pewhispanic.org/files/reports/133.pdf, at
2011. Between July 2010 and September 2012, 205,000 deportees nationwide reported having at least one
U.S.-citizen child. Seth Freed Wessler & Julianne Hing, Torn apart : struggling to stay together after
deportation (2012). For a demographic analysis of undocumented immigrants in California, see Laura E. Hill
& Hans P. Johnson, Unauthorized Immigrants in California (July 2011), available at http://www.ppic.org/
content/pubs/report/R_711LHR.pdf.

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38
39

38

See Santa Clara County Report, supra note 8.
The San Francisco Immigrant Integration Project: Findings from Community-Based Research Conducted

by the San Francisco Immigrant Legal & Education Network (SFILEN) (2014), available at https://
www.usfca.edu/uploadedFiles/Destinations/Institutes_and_Centers/McCarthy/SFILEN%20SFIIP%20Final
%20Report%202014.pdf [hereinafter “SFILEN Report”], at 2.

40

United Nations Alliance of Civilizations, Immigrant Relations and Integration Services, Santa Clara County

and San Jose, California (Apr. 2011), available at http://www.unaoc.org/ibis/2011/04/11/immigrant-relationsand-integration-services-santa-clara-county-and-san-jose-california/.

41

County of Santa Clara, Immigrant Relations and Integration Services (Mar. 2012), available at http://

www.sccgov.org/sites/ohr/Immigrant%20Relations%20and%20Integration%20Services/Pages/ImmigrantRelations-and-Integration-Services-(IRIS).aspx.

42
43

San Mateo County Report, supra note 8, at 2.
Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families and

Communities: A View from the Ground (Center for American Progress, 2012), available at http://
www.americanprogress.org/wp-content/uploads/2012/08/DrebyImmigrationFamiliesFINAL.pdf, at 9-14.

44

Ajay Chaudry et al., Facing Our Future: Children in the Aftermath of Immigration Enforcement 27-30 (The

Urban Institute, 2010), available at http://www.urban.org/UploadedPDF/412020_FacingOurFuture_final.pdf
[hereinafter “Facing Our Future”], at 27-30.

45
46

Id. at 32.
American Immigration Policy Center, Falling Through the Cracks: The Impact of Immigration Enforcement

on Children Caught Up in the Child Welfare System (December 2012), available at http://
www.immigrationpolicy.org/sites/default/files/docs/falling_through_the_cracks_3.pdf, at 5.

47

See generally Satinsky et al., Family Unity, supra note 9 (collecting sources relating to psycho-social effect

of deportation on families).

48

Chaudry et al., Facing Our Future, supra note 44, at 46-48; see also Satinsky et al., Family Unity, supra

note 9, at 12.

49

Id. at 42.

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50

39

Satinsky et al., Family Unity, supra note 9, at 11; see also Chaudry et al., Facing Our Future, supra note 44,

at 48-49. Social science and psychological research has found that children with incarcerated parents suffer
increased risk of delinquency, anxiety, depression, substance abuse problems, and unemployment. See
Drika Weller Makariev & Phillip R. Shaver, Attachment, Parental Incarceration and Possibilities for
Intervention: An Overview (2010); Joseph Murray & Lynne Murray, Parental Incarceration, Attachment and
child Psychopathology (2010). It is likely that such challenges also affect the children who suffer separation
and isolation after a parent’s deportation. One study explains that the physical separation of a parent and
child disrupts the child’s safe base of existence and learning, risking depression, anxiety, withdrawal,
aggression, and social/cognitive difficulties. See Drika Weller Makariev & Phillip R. Shaver, Attachment,
Parental Incarceration and Possibilities for Intervention: An Overview (2010).

51
52

Jailed Without Justice, supra note 6, at 6.
See Physicians for Human Rights & the Bellevue/NYU Program for Survivors of Torture, From Persecution

to Prison: The Health Consequences of Detention for Asylum Seekers (Jun. 2003), available at http://
www.survivorsoftorture.org/files/pdf/perstoprison2003.pdf; Southwest Institute for Research on Women,
UNSEEN PRISONERS: A Report on Women in Immigration Detention Facilities in Arizona (Jan. 2009), available
at http://sirow.arizona.edu/sites/sirow.arizona.edu/files/UnseenPrisoners.pdf.

53

See 8 U.S.C. § 1229a(b)(4)(A) (providing that alien has right to representation “at no expense to the

Government”).

54

Reinstatement of removal cases, in which DHS alleges that an immigrant is subject to a prior order of

removal, are only in the data set if the immigrant contends that he or she has a reasonable fear of
persecution if returned to his or her home country. See 8 U.S.C. § 1231(a)(5) (governing reinstatement
generally); 8 C.F.R. § 1208.31 (governing reasonable fear determinations). When the immigrant is able to
convince a DHS official that her fear is reasonable, or where the immigrant challenges the official’s decision
that it is not, an immigration judge has jurisdiction over the immigrant’s case. 8 C.F.R. § 1208.31. Such cases
appear in EOIR’s database as “Reasonable Fear” or “Withholding Only” cases. Of the 8,992 cases in our year
of data, 67 are “Reasonable Fear” cases and 118 are “Withholding Only” cases. It is important to note that
the immigrant is not entitled to representation—unless he can pay for one or find someone to provide
representation for free—during the reasonable fear interview with the DHS official, and that many
unrepresented individuals may not appeal that official’s adverse decision as regards whether the individual
satisfies the reasonable fear standard.

55

Our analysis does not examine representation or outcomes when the immigrant or DHS appealed an

immigration judge’s decision to the Board of Immigration Appeals (BIA), or when the immigrant
subsequently petitioned for review of the BIA decision to the Ninth Circuit Court of Appeals. Such appeals
are comparatively rare: there were only 981 appeals of the 8,992 case completions in our year of data.
Petitions for review are rarer still since they are only possible after appeal to, and disposition of case by, the
BIA.

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40

This 22 percentage point difference in outcomes for detained cases is larger than that of the New York

Immigrant Representation Study of removal cases in the New York immigration courts, which found a 15
percentage point increase (from 3 to 18 percent) in successful outcomes. See New York Study, Part 1, supra
note 12, at 19 Fig. 7.

57
58
59
60
61

We have provided a more detailed breakdown of these disparities by relief type in Appendix B.
See 8 C.F.R. § 1236.1(d).
See In re Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (outlining factors relevant to release on bond).
See New York Study, Part 1, supra note 12, at 16.
All of the organizations surveyed were asked about the number of cases accepted between April 1, 2013-

April 1, 2014. The organizations were also asked about whether any of those cases were subsequently
referred to pro bono private counsel. Of the ten organizations surveyed, four organizations co-counseled at
least one case with a private firm, and two organizations placed at least one case with a private firm. With
the exception of one of the nonprofits whose work is focused primarily on providing referral and mentoring
services on persecution based claims, the overwhelming majority of cases accepted by the surveyed
nonprofits were worked on exclusively by each respective nonprofits’ own staff members.

62
63
64
65
66

Please refer to Appendix C for a summary of our survey methodology.
See 8 U.S.C. § 1158(a); 8 U.S.C. §1231(b).
See 8 U.S.C § 1229b(a); 8 U.S.C § 1182(h); 8 U.S.C. § 1227(a)(1)(H)).
See 8 U.S.C. § 1229b(b).
A U visa is a nonimmigrant visa available to certain victims of crimes who have cooperated with law

enforcement. See 8 U.S.C. § 1101(a)(15)(U). A T visa is a nonimmigrant visa available to certain victims of
human trafficking. See 8 U.S.C. §1101(a)(15)(T). VAWA refers to the Violence Against Women Act and
provides, among other things, immigrant visas to certain spouses, children, or parents who have been the
victims of domestic violence. 8 U.S.C. § 1154(a)(1)(A). SIJS refers to Special Immigrant Juvenile Justice Status
and provides immigrant visas to certain unaccompanied minors who were abandoned, abused, or neglected
by one or both parents. See 8 U.S.C. § 1101(a)(27)(J).

67
68

See 8 U.S.C. § 1254a.
See, e.g., http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca.

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41

This average reflects the data collected from seven of the ten organizations. Three of the surveyed

organizations did not collect information on this data point.

70

This average reflects the data collected from seven of the ten organizations. Three of the surveyed

organizations did not collect information on this data point.

71

This average reflects the data collected from seven of the ten organizations. Three of the surveyed

organizations did not collect information on this data point.

72

This average reflects the data collected from nine of the ten organizations. It is important to note that at

least two of the nonprofits surveyed and who provided data, have a significant number of detained clients
who are mentally ill and/or incompetent and those individuals were not typically employed prior to their
detention. However, even with those statistics included in the average, the number of detained immigrants
employed prior to their detention is still over 60%.

73

The average reflects the data collected from nine of the ten organizations. One of the surveyed

organizations did not collect information on this data point.

74

The authors of this report recognize that each nonprofits’ case selection process may have an impact on

the levels of success reported by the surveyed nonprofits.

75

This number only reflects the number of individuals who were physically released from custody as a

result of posting of a bond issued by an Immigration Judge. It does not reflect the number of individuals
who were offered a bond, but could not afford it. Such a number would likely reflect an even higher figure.
Nine of the ten organizations surveyed were able to provide data on bond hearing results.

76

For purposes of this survey, the term “completed” refers to a case in which the Immigration Judge issued

a decision, either ordering removal, or ordering relief from removal. It also refers to a case where the
Immigration Judge closed or terminated a case because the United States Citizenship and Immigration
Service (USCIS) granted an application for relief from removal or where the Office of Chief Counsel agreed to
administrative closure of a case in the exercise of discretion.

77

The survey conducted with the ten Northern California nonprofits engaged in detained removal defense

work did not pertain to exactly the same cases covered by the EOIR data set in Figures 1-4, although there is
likely some overlap. The survey focused on the cases accepted by the nonprofits during the survey period
(April 1, 2013 to April 1, 2014). The EOIR dataset covers all removal cases in which an Immigration Judge (IJ)
made a final decision at the San Francisco Immigration Court during the time period between March 1, 2013
and February 28, 2014. Although the two studies do not cover the exact same cases in San Francisco
Immigration Court, both data sets cover approximately one year of (largely overlapping) time. We believe
that comparison of the average rates of success is therefore useful.

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42

Four of the organizations reported that they do not track this data, most often because of a lack of

capacity to do so.

79

Kirk Semple, Public Defender System for Immigrants Facing Deportation Would Pay for Itself, Study Says

(May 2014), available at http://www.nytimes.com/2014/05/30/nyregion/study-favors-free-counsel-tonavigate-deportation.html?_r=0; Kirk Semple, New Help for Poor Immigrants Who Are in Custody and Facing
Deportation (Nov. 2013), available at http://www.nytimes.com/2013/11/07/nyregion/new-help-for-poorimmigrants-who-are-in-custody-and-facing-deportation.html?module=Search&mabReward=relbias%3Aw
%2C%7B%222%22%3A%22RI%3A18%22%7D.

80

Note that one case can have more than one relief application, so these percentages cannot simply be

added together to find the proportion of immigrants with some form of relief available.

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