Because there is no federal right to a government-funded attorney in immigration court, people targeted for detention and deportation must either hire a private attorney at their own expense or find an attorney to represent them for free. As a result of the incredible financial and logistical obstacles people face securing representation, most of those who fight for their lives in immigration court—including 70 percent of people in detention—navigate the complexities of immigration law alone.^[]The representation rate in immigration court fluctuates slightly over time. Historically, 81 percent of detained immigrants have lacked representation; from October 2000 through October 2020, 81 percent of all people in detention had never been represented (1,308,218 of 1,610,020 cases). The rate has improved slightly over the past two decades, and in recent years—from October 2012 through October 2020—just more than 70 percent of all people in detention had never been represented (396,805 of 547,665 cases), with the exact percentage varying slightly from year to year. See Transactional Records Access Clearinghouse (TRAC), “State and County Details on Deportation Proceedings in Immigration Court,” https://trac.syr.edu/phptools/immigration/nta/. This data is regularly updated and varies slightly from month to month.

Since 2013, a growing number of cities, counties, and states have stepped up to address this due process crisis by creating and expanding publicly funded deportation defense programs, showing great leadership and sending an important message to communities about their values. Jurisdictions throughout the country have made great strides toward deportation defense. This includes state funding in California, Illinois, New Jersey, New York, Oregon, and Washington, as well as local funding in Ohio, Texas, and beyond.^[]For a map of all publicly funded deportation defense programs nationwide, visit www.vera.org/safe-initiative.

Municipalities and states should support immigrant communities by funding deportation defense programs

Vera conducted a national poll that found an overwhelming 67 percent of people in the United States support government-funded lawyers for those facing deportation.^[]Vera Institute of Justice, Taking the Pulse: Public Support for Government-Funded Attorneys in Immigration Court (New York: Vera Institute of Justice, 2020), 1, https://perma.cc/E45B-R9U5. Need for these programs continues, even more so amid the COVID-19 pandemic and mass protests for racial justice, both of which have resulted in increased scrutiny of the ways local budgets are used and discussions about how to promote the health and safety of communities of color.

Even with the rapid growth of local and state programs, their geographic limitations leave many people without access to counsel and more vulnerable to deportation. Some locally funded programs serve only those who live in or are detained within the jurisdiction. Such “residency requirements” often exclude people who have newly arrived and/or are seeking asylum protections, including those detained before establishing a residence—even people from a neighboring town. Because no one should be deprived of representation simply by virtue of geographic boundaries, local and state governments should consider structuring their programs to be as expansive and inclusive as possible. A program can achieve this either by not imposing a narrow residency requirement—such as in New York City, New York State, and San Francisco, where the person must simply have their case heard at the immigration court physically located in the jurisdiction, regardless of where they lived before being detained—or by defining residency broadly.^[]New York City and New York State each fund and manage separate universal representation programs, both known as the New York Immigrant Family Unity Project (NYIFUP). For NYIFUP criteria, see New York Department of State, “NYS Liberty Defense Project & Vera Expand Legal Representation to Immigrants Facing Deportation Proceedings,” press release (Albany, NY: New York Department of State, February 15, 2019), https://perma.cc/329L-4FTD. For San Francisco criteria, see SFILDC, “About us,” https://perma.cc/6ALZ-5TUE. For example, some cities extend their legal services to people who live in their county and others seek to broaden the reach of the program by partnering with neighboring cities and counties to fund programs jointly in a regional collaboration. Others extend services to anyone who lives in, works in, or has a connection to the jurisdiction, including an intent to reside there. This approach is particularly important in areas that are gentrifying, where many immigrants cannot afford to live but still contribute significantly to the community’s well-being by working, shopping, and supporting their families there.^[]The U.S. Census Bureau acknowledges the ways in which residents of one community can directly impact nearby communities. For example, the bureau often uses metropolitan statistical areas—defined as “a core area containing a large population nucleus, together with adjacent communities that have a high degree of economic and social integration with that core”—rather than city legal boundaries to establish geographic entities. See U.S. Census Bureau, “Metropolitan and Micropolitan – About,” https://perma.cc/EX7F-MCJJ.

The federal nature of immigration enforcement requires a federally funded representation system

Through its various agencies, the federal government is responsible for arresting, detaining, and initiating deportation proceedings against immigrants, as well as adjudicating their deportation proceedings. So it is incumbent on the federal government to bear the expense of representation for immigrants to safeguard their basic due process rights, just as it does in the criminal public defender system.^[]Gideon v. Wainwright is the landmark case that established that the right to counsel is so fundamental to due process that if a person accused of a crime could not afford their own counsel it is incumbent on the government to provide counsel. 372 U.S. 335, (1963). The U.S. Supreme Court has held that the right to due process applies to deportation proceedings. See Reno v. Flores, 507 U.S. 292, 306 (1993): “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” The federal government does fund legal representation in certain limited circumstances.^[]See Donald Kerwin, Strengthening the US Immigration System through Legal Orientation, Screening, and Representation: Recommendations for a New Administration (New York: Center for Migration Studies, 2020), https://perma.cc/TH6Q-NZW9. For example, Vera’s National Qualified Representative Program, which arose out of the class-action lawsuit Franco-Gonzalez v. Holder, provides appointed legal representation to detained immigrants who have been found by an immigration judge or the Board of Immigration Appeals to be incompetent to represent themselves in their immigration proceedings because of a serious mental disorder. See Michael Corradini, “Projects: National Qualified Representative Program,” Vera Institute of Justice, https://www.vera.org/projects/national-qualified-representative-program; and Franco-Gonzalez v. Holder, No. 10-CV-02211 (C.D. Cal. Apr. 23, 2013), https://perma.cc/BNW3-FJZC. In addition, the Unaccompanied Children Program provides legal orientation and screenings to all unaccompanied children in the custody of the Office of Refugee Resettlement and legal representation to some of those children as a result of protections authorized by the Trafficking Victims Protection Reauthorization Act and the 1997 Flores Settlement Agreement, which set limits on the length of time and conditions under which children can be incarcerated in immigration detention. See Leandra Naranjo, “Projects: Legal Services for Unaccompanied Children,” Vera Institute of Justice, https://www.vera.org/projects/legal-services-for-unaccompanied-children; and Flores v. Reno, Case No. CV 85-4544-RJK (C.D. CA, 1997), settlement agreement, https://www.aila.org/infonet/flores-v-reno-settlement-agreement. But the long-term vision of the universal representation movement is to establish legally mandated and federally funded representation for all immigrants facing deportation—a system in which everyone facing deportation receives zealous, person-centered legal representation.^[]Vera Institute of Justice, A Federal Defender Service for Immigrants: Why We Need a Universal, Zealous, and Person-Centered Model (New York: Vera Institute of Justice, 2021), https://perma.cc/R2Y9-CW4E. A federal system, one that integrates lessons learned from the public defender system for people accused in criminal cases, is necessary to truly ensure access to such representation.^[]In Gideon v. Wainwright, the Supreme Court required representation for all people accused in criminal cases who could not afford it. But some argue that this important decision has failed to fulfill its promise because it did not mandate the structural conditions necessary for an effective defense, including sufficient resources, a limit on caseloads, and meaningful recourse when legal defense is ineffective. See Erwin Chemerinsky, “Lessons from Gideon,” Yale Law Journal 122, no. 8 (2013), 2676-2693, https://perma.cc/EJC8-B333. Local and state programs are important stepping-stones for making that vision a reality, by helping develop the necessary infrastructure for removal defense, demonstrating the impact of legal representation, and building power in communities for this national movement.

Publicly funded deportation defense programs vary in size and scope and can scale up incrementally over time

Some jurisdictions fund universal representation as part of a broader investment in immigration legal services. This approach recognizes the continuum of needs for services beyond removal defense, such as “Know Your Rights” presentations for community members, help with “affirmative applications” for people seeking immigration protections who are not in removal proceedings, and citizenship assistance. All of these services are important interventions to support and stabilize immigrant communities and may prevent people from facing detention and deportation in the first place. But where resources appear limited, jurisdictions should prioritize universal representation as a crucial last line of defense while exploring opportunities to create new revenue streams for other programs that serve immigrants. This is especially important because of the urgency and dire consequences for people facing deportation—particularly those who have lost their liberty through detention.

Jurisdictions throughout the country are in different phases of their trajectory toward fully funded universal representation. Some nascent programs are small, with initial investments of no more than $250,000, while other more established programs have grown dramatically over several years. For example, NYIFUP—which began in 2013 as a $500,000 pilot funded by New York City—expanded locally in 2014 and statewide in 2017 with an investment from the state. The city’s $16.6 million commitment and the state’s $5.1 million commitment for fiscal year 2021 ensure that all immigrants detained and in removal proceedings in New York have access to high-quality public defenders, establishing the state as a leader in this national movement.^[]For more information on 2021 New York City Council funding, see http://www.nyc.gov/html/citycouncil/html/budget/expense_funding.shtml. For more information on NYIFUP pilot funding, see Jennifer Stave, Peter Markowitz, Karen Berberich, et al., Evaluation of the New York Immigrant Family Unity Project: Assessing the Impact of Legal Representation on Family and Community Unity (New York: Vera Institute of Justice, 2017), 10, https://perma.cc/BAB5-JFKG. Jurisdictions not able to provide full funding initially have the option to start smaller and develop their infrastructure before scaling up. Because the need for and impact of universal representation programs is well established, government officials and other stakeholders should consider first-year funding an initial investment in a sustainable long-term program.

Three types of publicly funded deportation defense programs are common:

• In single jurisdiction programs, removal defense is funded by one city, county, or state.
• In collaborative government programs, jurisdictions pool their funds into one program. For example, government officials in Dane County, Wisconsin—which funded a program’s first year—collaborated with leaders in Madison to secure the city’s investment in the program’s second year, increasing the number of people who benefit. Similarly, in Minnesota, Ramsey County and the city of Saint Paul created a jointly funded program for their residents in 2019.
• In public-private partnerships, private donors or foundations supplement funding from one or more government entities.

The legislative and budgeting mechanisms used to pass funding for legal defense vary widely and depend on local options and protocols. Because there is no uniform way to enact these programs through local budgeting measures, advocates and government officials should evaluate all available options.^[]See Module 2 for a more detailed description of local budgeting measures, particularly as they relate to political and advocacy strategy. Tucker, Cheer, Garlick, et al., Advancing Universal Representation, Module 2, 2020, 11-18. Funding is often authorized through resolutions and ordinances that require legislative approval in the initial year. For example, the San Antonio City Council passed an ordinance in 2017 authorizing an allocation from the general fund for immigration legal services.^[]City of San Antonio Ordinance 2017-08-31-0614, https://perma.cc/8DQA-99BM. The city of Long Beach, California, passed the Long Beach Values Act in December 2018, establishing the Long Beach Justice Fund of $250,000 to provide legal representation for low-income immigrants facing deportation. For jurisdictions implementing universal representation, these budget allocations can occur as part of the regular appropriations cycle, as a supplemental budget that reallocates unspent funds from an existing budget, or even as emergency funding measures.^[]For example, after the 2016 election, the city council in Austin, Texas, approved a resolution directing the city manager to identify emergency funding for immigration legal services for Austinites, an action that ultimately led to the development of the city’s multiyear removal defense program. In Ohio, the Columbus City Council created the Columbus Families Together Fund as an emergency action to reallocate funds from public safety initiative funding to provide legal representation to protect against aggressive enforcement and family separation. While state programs have traditionally been established through budget measures, advocates in Maryland, New York, and Illinois are beginning to seek expansion of local programs through right-to-counsel legislation at the state level.^[]Access to Representation Act, New York S. 7261 (filed January 15, 2020), https://perma.cc/NE6U-UD4Y; Right to Counsel in Immigration Proceedings Act, Illinois HB 0025 (filed January 14, 2021), https://perma.cc/G68R-GEUL; Right to Counsel in Immigration Proceedings Coordinator, Maryland SB 0317 (filed January 13, 2021), https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0317?ys=2021RS. See “Paying for representation: Costs and payment models” for more detailed information.

Launching a program requires close coordination among government agencies, advocates, and providers, as well as mechanisms to stay accountable to directly impacted community members. Once approved, these programs are housed within a wide range of government agencies whose mission and work supports the immigrant community, such as a mayor’s office of immigrant affairs, an office for new Americans, a public health department, or a public defender’s office. These programs are increasingly housed in jurisdictions’ equity offices, in recognition that universal representation is a tool for advancing equity in their communities.^[]See Chen, “Universal Representation Advances Racial Equity,” 2020. According to Liz Cedillo-Pereira, chief of equity and inclusion for the city of Dallas, Texas, “The City of Dallas is committed to protecting the rights of all residents, including immigrants and refugees who are a vital part of its families and communities. . . . As part of our commitment to advance racial equity, the City of Dallas Welcoming Communities and Immigrant Affairs team has embedded deportation defense through investment of funds and formalizing partnerships.”^[]Liz Cedillo-Pereira, chief of equity and inclusion, City of Dallas, August 12, 2020, via e-mail. Many cities and counties that do not otherwise have dedicated immigrant affairs offices have created immigration liaison positions to coordinate these types of programs and better respond to the needs of immigrant communities.

Creating a structured mechanism for community involvement in the new program—such as an advisory committee or task force—can promote communication, accountability to impacted communities, and coordinated implementation. For example, after its program’s first year, the city of Long Beach convened the Long Beach Justice Fund Oversight Committee, which includes representatives from the Long Beach Sanctuary Coalition, community members, government officials, and providers. The committee is tasked with supporting the implementation of the program, creating any future requests for proposals (RFP) and selecting a provider, and promoting fundraising and sustainability.

Similarly, in Texas in February 2020, the Harris County Commissioners Court began the process of developing an immigrant legal services program by passing a resolution directing the Community Services Department to establish, administer funds for, and manage an immigrant legal services program. Community groups and advocates were critical in getting the resolution passed. Because of the trust built between community groups and government in the process of establishing a fund, local groups persuaded the department to create a task force of diverse stakeholders to write the RFP guidebook. In partnership with local advocates, the task force facilitated a series of listening sessions with directly impacted people, community-based organizations (CBOs), and providers serving immigrants to learn about service needs and gaps and how the program could best address them. After a deliberate and inclusive process of community engagement, the task force designed a program to reflect the input generated. The county approved the proposal and provided $2 million in funding for the program’s first year.^[]Immigrant Legal Resource Center, “Houston Leads Coalition Celebrates $2M Immigration Legal Services Fund for Low-income Harris County Residents,” press release (Houston: Immigrant Legal Resource Center, November 10, 2020), https://perma.cc/JGU6-9R6V. Ongoing collaboration and intentional communication among advocates, CBOs, providers, and elected and other government officials can help ensure that a program is responsive to and supports those who are most directly impacted.^[]See Module 2 for more details on how CBOs, advocates, and impacted community members can collaborate on universal representation campaigns to get programs funded. Tucker, Cheer, Garlick, et al, Advancing Universal Representation, Module 2, 2020.

As is discussed throughout this module, CBOs support and enhance program implementation in a variety of ways, and those efforts should be funded to ensure continued capacity to do so. In Long Beach, for example, the local advocacy group is funded for its extensive work coordinating program referrals and providing ongoing support to clients and their families. In Ramsey County, Minnesota, legislators passed funding for the Immigration Wrap-Around Services Program. The program funds local CBOs to provide culturally competent education to immigrant communities about their rights and the legal defense fund, provide supportive services to families impacted by detention and deportation, and facilitate referrals.