By Michelle Blouin, Communications Associate, Access to Justice Lab, Harvard Law School
Immigration court has a numbers problem. It had 3.3 million active pending cases as of March 2026. The U.S. government assures the presence of a Department of Homeland Security attorney serving as opposing counsel in every immigration proceeding. But only 37 percent of immigrants, and just 14 percent of detained immigrants, have legal representation themselves. Too few immigration attorneys are available to help immigrants in the overwhelming backlog of cases.
This mismatch between supply and demand (or rather, need) makes it ripe for a randomized controlled trial (RCT) in which data can help us figure out how best to resolve the discrepancy.
“In some sense, what you’re dealing with is a doctor who’s triaging in a catastrophe scene or in a battlefield scenario,” said Jim Greiner, Faculty Director of the Access to Justice Lab, in discussing the current legal landscape for lawyers and immigrants. “And so you have to focus on the very small fraction of them where you can make the difference between death and life.”
That’s exactly what the Access to Justice Lab is planning to do in a study it is pursuing with field partners at Neighbors Immigration Clinic and No More A Stranger Foundation. The question we hope to answer is where to use lawyer resources most effectively and efficiently in immigration proceedings.
The setup of this RCT is simple from a scientific point of view. Attorneys help each study participant prepare the paper record (which can be submitted in advance) for their administrative trial. Then, one group is randomized to an attorney, one group is randomized to self-help materials, at the administrative trial, Attorneys represent all members of both groups at subsequent appeals. As the previous sentences suggest, the concern here is that the probability of losing at the administrative trial is so high that it’s might not be worth the attorney’s time to attend, so long as the attorney assures that the paper record is adequate in all cases. Renee Danser, Associate Director of Research and Strategic Partnerships at the Access to Justice Lab, noted that it still took the group more than six months to figure out the study design. That was due in part to the complexity of immigration proceedings and the legal and political landscape surrounding them.
Chief among those factors: immigration proceedings fall under the Executive Office of Immigration Review, a sub-agency of the Department of Justice, which is formally part of the Executive Branch. So, President Trump is in charge here. This atypical hierarchy for civil proceedings with potentially dire consequences—at worst, detention, deportation, or possible death in a person’s homeland—underscores the need for help throughout the process. Again, the numbers don’t add up—an attorney for every individual processed through immigration court is not a realistic goal. An attorney for certain cases and at a given point in the proceeding, however, is more doable.
“Immigration is kind of interesting because part of immigration deals with an administrative court system, and then part of immigration deals with a government office that’s more similar to filing Medicaid applications,” said field partner Katie Taylor, Legal Director of Neighbors Immigration Clinic.
One part that operates similarly to Medicaid application already has some built-in efficiencies via “accredited representatives.” These are individuals without a law degree but with relevant training who can handle some legal work, particularly with form filing in affirmative immigration cases. In the accompanying podcast episode, Taylor pointed out the enormous time commitment that asylum cases require of an attorney in conducting research, filing forms, and prepping client and witness testimony. If accredited representatives could support nonprofit legal agencies by handling the comparatively straight-forward affirmative asylum cases, the proactive applications from individuals not facing deportation, then lawyers could reserve time and energy to handle defensive asylum cases for individuals seeking protection while at risk of deportation.
The other part of immigration court Taylor mentioned, the one operating like an administrative court system with trials, has some built-in political complexity. The current system offers no protection for immigration judges who seek to apply the law to the facts according to their best judgment. “In immigration court, there’s a lot of pressure on the judges that if you don’t do whatever that administration wants, then you can lose your job,” Taylor noted. Many judges seen to have ruled too often in favor of immigrants have lost their jobs and been replaced by Judge Advocate General (JAG) military officers.
Immigration Proceeding Protocol
While the legal and political landscapes offer their own factors to consider in the study plan, knowing how immigration hearings operate gave the researchers a better idea of the timing to consider inserting their randomization study.
Immigration proceedings begin when an individual is given a Notice to Appear, the official charging document that initiates the proceedings in immigration court. Generally, one of three scenarios may qualify for a Notice to Appear:
- An individual is caught crossing a U.S. border and picked up by U.S. Customs and Border Patrol officials.
- An individual enters the U.S. legally through a visa and then files an affirmative asylum application within one year with the U.S. Citizenship and Immigration Services. If asylum is not granted, the individual receives a Notice to Appear in immigration court in a defensive asylum case.
- An individual already in the U.S., and potentially with some sort of legal status, is arrested for criminal activity and must appear in immigration court.
Proceedings begin with a master calendar hearing in which an immigration judge reviews the charges in the Notice to Appear, advises the individual of their rights, schedules future hearings, and addresses other procedural issues related to the case. Immigrants also submit their pleadings to the allegations in the Notice to Appear.
After a couple master calendar hearings, an individual has a Merits Hearing, the administrative trial that determines whether they qualify for relief or are removed from the U.S. This requires individuals to file applications for relief and submit documents, evidence, and witness lists—all of which must follow certain instructions and be done by a given time before the hearing. The burden of proof falls at the outset on the DHS attorney to show the person is deportable—in doing so, the DHS attorney may look for inconsistencies between oral and written testimony as an example of unreliable character. If the person’s removability is established, the burden of proof then shifts to the immigrant to show that they qualify for relief and have proof to show eligibility for a particular type of relief. If a judge grants relief, the individual may have next steps to follow but generally can breathe a sigh of relief. If a judge orders removal, the individual still has options before being forced to leave the U.S., starting with an appeal to the Board of Immigration Appeals within 30 days.
While the administrative has its challenges from an attorney perspective with ensuring consistent individual and witness testimony, the appeal process may be more challenging. Taylor pointed out the Board of Immigration Appeals consists of judges appointed by President Trump. In some jurisdictions, the loss rate for immigration cases may be up to 95 percent. In these cases, the presence of a lawyer does not appear to make a difference when the outcome is predetermined before the case begins. If an individual is denied relief in Appeals court, however, the last chance—or possibly the first chance really—for winning an asylum case is in federal circuit court where judges are confirmed by the U.S. Senate. Perhaps painfully scarce lawyer resources would be best deployed at the federal circuit court level.
In short, there’s a lot for pro se litigants to know about immigration proceedings. And there are plenty of opportunities for an individual to falter if self-representing. One example Felicia Caten-Raines, Staff Attorney at No More Stranger Foundation, explained on the Proof Over Precedent episode is at the trial level. “If the immigrant loses their case, the judge will ask if the immigrant wants to appeal,” she said. “And so, if the immigrant doesn’t appeal or doesn’t reserve their appeal, then they’re not going to be able to appeal later. But the immigrant might not know that if they’re at the hearing without an attorney.”
Outlining the Study Plan
Once the researchers factored the landscape and complexity of immigration proceedings into the study, they labored over another decision. “This study is trying to decide where to put the scarce attorney resources to make the biggest impact,” Danser said. They weighed whether it would be best at the Merits Hearing or in preparation for the appeal, ultimately deciding on the initial trial as the focused point of impact.
At present the study plan includes:
- Goal to understand the effects of attorneys at defensive asylum hearings
- Attorneys assist all study participants in preparation and submission of the paper records for their administrative trials
- Random assignment of individuals to legal representation or self-help materials at the administrative trial
- Attorneys represent all participants at appeals
- Review of records to see what happens in the case
- Review of detention records to see if clients become detained during the hearing
The only requirement for participation in the study is that an immigrant must have an Alien Registration Number (A-Number) and not be detained at the time of enrollment.
The study is nearing approval by the Institutional Review Board (IRB), leaving one last hurdle before the research can begin. “We’re looking for a funder that is interested in understanding better how to serve immigrants in the immigrant justice system,” Danser said. Contact us if interested.
If you’re interested in more on this topic, listen to our podcast episode.