Creating Incentives and Facilitating Access: Improving the Level and Quality of Pro Bono Representation Before EOIR

Georgetown Journal of Legal Ethics, The, Winter 2008 by Lang, Steven

I am honored by this opportunity to provide my perspective on the unmet legal needs of immigrants. I have served as the Coordinator of the Pro Bono Program (later renamed "The Legal Orientation and Pro Bono Program") at the Executive Office for Immigration Review (EOIR) since its creation in April 2000. EOIR is composed of the Office of the Chief Immigration Judge (OCLT), which administers over 54 immigration courts around the United States, the Board of Immigration Appeals (BIA), which hears appeals from immigration judge adjudications and certain decisions of the Department of Homeland security, and the Office of the Chief Administrative Hearing Officer (OCAHO), which conducts hearings in various matters, such as those relating to employer sanctions and unfair employment practices. EOIR's primary mission is to adjudicate immigration cases in a careful and timely manner, including cases involving detained aliens, criminal aliens, and aliens seeking asylum as a form of relief from removal, while ensuring due process and fair treatment for all parties involved. The agency's support for pro bono representation and other efforts to improve access to legal information and counseling is integral to this mission.

Prior to working at EOIR, I served as the Attorney Coordinator of ProB AR, the South Texas Pro Bono Asylum Representation Project. ProB AR is a joint project of the American Bar Association, State Bar of Texas and American Immigration Lawyers Association. While I was there, my mission was to recruit, train, and supervise volunteer attorneys and law students from across the country to come to South Texas to represent indigent asylum seekers and others in need of pro bono representation. This was a formative experience for me, shaped by the success, heartbreak, and endemic frustration of working in the detention environment. It did not take long for me to realize that pro bono counsel often represents the last safety net for victims of persecution, violence, and poverty in our immigration legal system.

I have done my best to bear this experience in mind since starting in the position at EOIR. The goal of the EOIR Legal Orientation and Pro Bono Program is to improve access to legal information and counseling and increase rates of representation for aliens appearing before the immigration courts and BIA. While the government cannot fund representation,1 it can foster policies and practices that promote a supportive environment for those who volunteer their time and expertise to assist indigent individuals in removal proceedings, as well as for those aliens whose only option is to proceed pro se. Thus, the Program's approach has been to focus on initiatives that facilitate access to information and create new incentives for attorneys and law students to accept pro bono cases.2 The Program also performs an important community relations role for the agency, often serving as a forum on issues related to legal assistance for indigent immigrants.3 Many of the Program's accomplishments are due to the efforts of numerous immigration judges, court administrators, and Headquarters staff whose interest and active participation in the Program have helped shape its strategy and direction. As an agency, EOIR has long recognized the benefits derived from strong pro bono involvement in the immigration hearing process, and has taken various tangible steps to address the needs of indigent individuals appearing before its tribunals-well before the creation of the Program.4

I. THE THREE COMPONENTS OF PRO BONO LEGAL SERVICES FOR IMMIGRANTS

Successful and sustainable pro bono efforts depend upon three broad components: (1) outreach and identification; (2) recruitment and matching; and (3) training and support. First, the objective of most community-based pro bono immigration programs is to provide as many individuals as possible with early access to basic legal services, meaning programs through which they can understand their legal cases, including any defenses ( referred to as "rehef) tiiey may have against deportation (or "removal" under the immigration law). Program providers should not only establish efficient means to comprehensively identify individuals with relief potential, but also assist those without identifiable relief in understanding any remaining options (e.g. applying for "Voluntary Departure" or requesting a stipulated order of removal). This latter group of individuals makes up the majority of those in removal proceedings.5 Also, by providing access to basic legal services as early as possible in the process, steps can be taken to inform individuals regarding the minimum professional standards they should expect from legal representatives.6

Second, the recruitment of pro bono attorneys, law students, and other volunteers and matching them with pro bono cases is carried out in a multitude of ways. Yet all successful recruitment and matching efforts share some basic characteristics. One of these is good marketing that impresses upon the volunteer the importance of the program's mission at the individual, community, and international level. Another characteristic is respect for volunteer time, which means that cases should be well-screened and sufficiently prepared in a timely fashion by trained program staff before referring to pro bono counsel. Successful programs also have institutionalized practices for appreciation and recognition of volunteers through certificates, articles, awards, and events. In addition, the matching of pro bono representatives with clients should follow a well-organized and responsible protocol that reflects ethical and professional standards and is carried out expeditiously so as not to waste counsel time or increase client anxiety.