On May 17, 2017 US District Judge Richard Jones granted a Temporary Restraining Order, preventing the Department of Justice from taking action which would have severely restricted the ability of U.S non-profit organizations to provide pro bono legal advice to individuals subject to deportation proceedings.

The Right to Legal Representation in Deportation Proceedings

An individual may be subject to deportation proceedings for multiple reasons, including a failure to maintain status or a period of overstay. In some cases, individuals will have a valid defense to deportation proceedings, for example, if they have made an application to change status, they will be entitled to remain in the U.S, pending the outcome of their application.

Sadly, unlike the criminal courts, while an individual facing deportation proceedings has a prima facie right to Counsel, there is no requirement for the State to fund representation, for example, by providing a public defender, appointed Counsel or legal aid. Thus, non-profit organizations play an instrumental role in facilitating access to justice and ensuring individuals subject to deportation proceedings are afforded their right to a fair trial.

The importance of legal representation in deportation proceedings cannot be overstated. According to a report published by Ingrid Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review 164, no. 1 (December 2015), only 14% of immigration detainees subject to removal proceedings acquire legal representation. However – once equipped with legal representation – 49% of immigration detainees successfully obtain the immigration relief sought. Ultimately, legal representation ensures any valid defenses held by the immigrant are raised, safeguarding due process and ensuring a fair and just outcome.

Northwest Immigrant Rights Project

In this case, the U.S Government sent a cease-and-desist letter to the Northwest Immigrant Rights Project, a non-profit organization in Washington State in April 2017. The letter stated that the organization must immediately cease to provide legal advice and assistance to any individual for whom a Notice of Entry of Appearance had not, and would not, be filed at Court. In practical terms, the effect of the letter was to prevent the Northwest Immigrant Rights Project from providing any form of pro bono legal advice to immigrants, which fell short of full formal court representation.

Generally, pro bono organizations do not have the resources to commit to providing full representation to every individual who seeks their services, since demand far exceeds capacity. Instead, pro bono organizations provide advice and assistance to self-represented immigrants, to equip them with the knowledge and skills required to represent themselves effectively, without filing a Notice of Entry of Appearance.

On May 8, 2017, the Northwest Immigrant Rights Project filed a lawsuit against the U.S Government in the Western District of Washington. In their complaint, the Northwest Immigrant Rights Project contended that it was not necessary for them to file a Notice of Entry of Appearance at Court in respect of each person to whom advice had been given, since they had received assurances from the court that it was sufficient for them to simply notify the court whenever they had assisted a pro se immigrant in drafting Court documentation. Moreover, the organization highlighted that the practice had continued over nine years and the Department of Justice had not, hitherto, made a complaint or expressed any concerns.

District Judge Richard Jones granted the organization’s request for a Temporary Restraining Order, preventing the Department of Justice from enforcing the formal representation rule against non-profit organizations across the U.S. The Judge accepted that it was likely the organization would succeed on its claim that the Department of Justice’s position violated the non-profit organization’s Constitutional right to freedom of speech, since it would limit its ability to work.

The Temporary Restraining Order will remain in place, until the Court adjudicates upon the merits of a pre-trial injunction. We will endeavor to provide updates, as the proceedings progress.

Davies Legal

At Davies Legal, we offer advice and representation in connection with all aspects of U.S immigration, from our London and Atlanta offices. We offer a fully flexible service, timely responses to your correspondence and innovative immigration solutions, at a competitive, transparent fixed fee. Call now for your free price quotation and for preliminary advice regarding the merits of your case.

Published: 11th July 2017