United States: Cost Of Counsel In Immigration: Economic Analysis Of Proposal Providing Public Counsel To Indigent Persons Subject To Immigration Removal Proceedings

Last Updated: June 3 2014
Article by Dr. John Montgomery

I. Qualifications

1. I am John D. Montgomery, Ph.D., a Senior Vice President at NERA Economic Consulting, a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. I direct projects and provide testimony in a range of complex commercial litigation. I have a Ph.D. in economics from Princeton University. I have held positions at the Board of Governors of the Federal Reserve System, International Monetary Fund, the President's Council of Economic Advisers (under President Clinton), and Morgan Stanley. I have published numerous articles in professional publications.1

II. Summary of Findings and Description of the Proposal

2. In this report, I present my analysis of the estimated costs and offsetting savings of a proposal to create a program, entirely funded and overseen by the Federal government, to provide counsel to every respondent in immigration removal proceedings under 8 U.S.C. § 1229a who qualifies as indigent (hereinafter, the "Proposal").2 I must state upfront that information and data on legal representation in immigration proceedings is incomplete, and a substantial range of uncertainty consequently is attached to the estimates in this report. However, using a range of available numbers and background information, I have prepared what I believe to be unbiased estimates based on the best information available to me, from a variety of sources.

3. A summary of my findings is as follows:

  • Primary Savings: I estimate that detention costs borne by the Federal government would decline by at least $173 to $174 million per year, and likely substantially more.
  • Additional Savings: In addition, I estimate that other Federal outlays, including payments for legal orientation programs, transportation, and foster care would decline by between $31 and $34 million per year. Together with detention cost savings, I estimate total savings of between $204 and $208 million per year.
  • Cost of Proposal: I estimate that the Proposal would cost $208 million annually.
  • Net Cost of the Proposal: Under plausible assumptions, fiscal savings could exceed the costs of providing publicly funded counsel, and the Proposal would pay for itself. The higher end of my range of estimated savings exceeds the estimated cost of the Proposal. Even at the lower end of the range, providing publicly funded counsel to indigent immigration respondents would cost the Federal government no more than $4 million per year, with 98 percent of the cost being paid for by Federal fiscal savings.

4. Under the Proposal, counsel would be provided before a respondent's first court hearing, normally a Master Calendar Hearing, and would continue until the respondent's case is resolved by an immigration judge.3 Both detained and non-detained respondents would be eligible for public counsel, and respondents would be represented during any hearings, including those to determine whether or not they should be detained.

III. Likely Effects of the Proposal

5. My analysis indicates that the Proposal is likely to make immigration removal proceedings, and detention and deportation pursuant to them, more accurate and efficient. Generally, the involvement of counsel is likely to increase the chances that respondents who are legally entitled to be in the United States are allowed to stay. It is self-evident that respondents with legal representation are more likely to successfully argue that they are ineligible for removal or successfully claim relief from removal. Data from asylum proceedings (discussed below) demonstrate that legal representation improves outcomes for respondents. The involvement of counsel will also likely improve the efficiency of the proceedings, resulting in faster removals for those without opportunities for relief from removal.

6. I focus on two quantifiable effects of public provision of counsel in immigration removal proceedings:

  • First, legal representation is likely to reduce costly detention expenditures by the Federal government for respondents who are detained while they are waiting for their cases to be adjudicated, by reducing the aggregate number of days that the government must provide food, housing, and other provisions for those detained respondents. Two factors contribute to this potential reduction in detention days. Some of the reduction is likely because cases with lawyers involved will proceed more quickly from initiation of the cases to decisions by immigration judges, either due to fewer continuances, or because a substantial number of detained respondents without any chance of relief will accept deportation more quickly if well-counseled. Additionally, other respondents with lawyers would be more likely to secure release at the outset of removal proceedings through a successful bond hearing (allowing them to continue working, supporting their families, paying taxes, etc., while waiting for their cases to be decided). Evidence supporting these effects, not all of which can be quantified, is discussed later in this report.
  • Second, legal representation would likely improve the accuracy of cases by helping those individuals who are legally entitled to be in the United States to stay, some of whom otherwise may have been deported without the assistance of counsel. With counsel, either fewer individuals would be determined eligible for removal or more of those eligible would be able to obtain relief through the avenues of relief open to them. In turn, by helping those respondents who are legally entitled to stay, counsel would help reduce social costs and spur other economic benefits. One quantifiable social cost that would likely be reduced is foster care expenditures for children of deported parents. Other economic benefits and savings in social costs would likely be realized as well, although this report does not quantify those benefits and savings. In addition, the reduced deportations of those individuals who are legally entitled to stay through the provision of counsel, would also lead to savings in transportation and travel costs incurred when individuals are deported.

To read this Paper in full, please click here.


1 I have been retained by the law firm Wilmer Cutler Pickering Hale & Dorr LLP on behalf of the New York City Bar Association. The opinions expressed herein do not necessarily represent the views of NERA Economic Consulting or any other NERA consultant. I thank Mark Noferi of the Center for Migration Studies, and Tiffany Payne, Sanhita Sen, and Hunter Landrum of WilmerHale for providing their insights, perspectives, comments, and research for this study. At NERA, Mitchell Chubinsky provided excellent research and analytical support, and Dr. Stephanie Plancich provided very helpful comments.

2 In my analysis, I assume other immigration laws stay the same. The analysis in this report assumes that counsel will only be provided to those indigent respondents whose removal proceedings are initiated on or after the date that legislation regarding the Proposal is enacted. There is a considerable backlog of removal proceedings at various stages in the U.S. immigration court system, a majority of which, I am informed, likely involve respondents who are represented.

3 Removal proceedings under § 240 of the Immigration and Nationality Act ("INA") are initiated by a charging document called a Notice to Appear ("NTA"). 8 U.S.C. § 1229a; Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Removal Adjudication, Report for the Administrative Conference of the United States, pp. 8-21 (Section III.C, "Removal Adjudication Processes") (June 7, 2012), available at http://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in-Immigration-Removal-Adjudication-Final-June-72012.pdf (hereinafter "Benson & Wheeler"). Upon issuance of a NTA, the respondent may be kept in custody (a.k.a. "detained"), released under a bond of $1,500 or more, or released on conditional parole into the community. INA §236(a); 8 U.S.C. § 1226(a). During the removal process, the respondent will be asked to appear at two types of hearings—a master calendar and an individual hearing. Benson & Wheeler, pp. 15-16. The master calendar is a preliminary hearing for pleadings (somewhat analogous to a criminal arraignment). Respondents answer the charges against them and may file an application for relief from removal. There are several forms of relief from removal including asylum (8 U.S.C. § 1158); withholding of removal (8 U.S.C. § 1231(b)(3)); Convention Against Torture (8 C.F.R. § 208.16); waivers of removability or inadmissibility (e.g., 8 U.S.C. §§ 1186a(c)(4), 1227 (a)(1)(D)(ii) (certain hardship waivers)); adjustment of status (8 U.S.C. § 1255); and cancellation of removal (8 U.S.C. § 1229b(b)). If a respondent states grounds for relief, the Immigration Judge ("IJ") will schedule an individual hearing, also referred to as a merits hearing. At the individual hearing, the parties are given the opportunity to present evidence and testimony before the IJ. Benson & Wheeler, p. 15. At the conclusion, the IJ will issue an order determining the respondent's alleged inadmissibility or deportability and decide on any requested relief. 8 U.S.C. § 1229a(b), (c). Either side can appeal the decision to the administrative Board of Immigration Appeals ("BIA") within 30 days. 8 C.F.R. § 1003.3. If the respondent loses before the BIA, he or she can then appeal within 30 days to the Federal Court of Appeals in the circuit where the case is located. 8 U.S.C. § 1252(b).

As noted above, the Proposal is limited to counsel being provided to indigent respondents from the initiation of removal proceedings through the point at which an IJ issues his or her decision. Accordingly, this report does not analyze costs and savings associated with counsel being provided to indigent respondents for any stage of appeal. The costs and benefits of such an extension to the Proposal are unclear. On the one hand, some extra costs would be borne by the government in providing for counsel to appeal to the BIA (and further costs to a Federal Court of Appeals). On the other hand, some costs would be saved as well, in that well-litigated cases in the trial courts may avoid unnecessary appeals to the BIA and a Federal Court of Appeals. An informal 2011 Department of Justice analysis based on fiscal year 2009 data estimated that it currently costs the federal government $1,240 to litigate a BIA appeal (in prosecution and court costs), and $17,858 to litigate an appeal to a Federal Court of Appeals ($7,865 in prosecution costs and $9,993 in court costs). U.S. Department of Justice, Immigration Litigation Bulletin, What Does it Cost to Regulate Immigration? Three Measurements to Calculate Costs, p. 6 (July 2011), available at http://www.justice.gov/civil/docs_forms/ImmigrationBulletin/July_2011.pdf. Some additional costs outlined in this report would be saved as well. Further, if parties are represented at appeals, counsel on both sides may reach settlements or stipulations that save court time or obviate the need for a full appeal.

Additionally, this Proposal would provide representation to unaccompanied juveniles, as part of providing representation to those in 8 U.S.C. § 1229a proceedings. Less is known about the fiscal impacts of representation on juveniles, though, and this analysis does not separately analyze those impacts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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