Who should pay the legal fees for an illegal alien? This question deserves more attention, especially given the push by some on the left to have taxpayers foot the bill.
The Immigration and Nationality Act (INA) states that an alien shall have the privilege of counsel—at no expense to the government—in removal proceedings and administrative appeals. This due process privilege is extremely generous, and it is one that some on the left have sought to expand—at taxpayer expense. Such expansion efforts give illegal aliens more benefits than U.S. citizens, who do not receive taxpayer-funded attorneys in civil matters. Citizen taxpayers should not be forced to pay for the lawyers of illegal aliens, and current (state and local) funds for legal representation for illegal aliens, should be rescinded.
Aliens’ Right to Counsel and the Cost
When an alien receives a Notice to Appear (NTA) before an immigration judge, the civil, administrative action of removal proceedings begins. The INA allows an alien to have representation during these proceedings. The statute states:
In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.
Because immigration proceedings are civil, not criminal, there is no constitutional right to a publicly funded attorney in immigration court. Further, the Supreme Court has repeatedly rejected the notion that deportation is punishment, and the Sixth Amendment right to counsel is therefore not applicable in removal proceedings.
The principle behind the “at no expense to the Government” clause is sound and must be maintained. Taxpayers should not pay for legal counsel for aliens who violated U.S. law. To do so would not only be bad policy, it would provide illegal aliens with more benefits than U.S. citizens. Furthermore, taxpayer-funded lawyers for illegal aliens would provide an incentive to aliens to litigate at will, even when they have a frivolous claim, since they will not have to foot the substantial legal bills they rack up. This makes no sense at all.
Immigration proceedings before an immigration judge can involve anywhere from two to four or more court appearances, depending on the number of continuances an alien requests. That translates to at least four hours, and usually more, of court time, plus consultation and preparation hours, per attorney, per alien. Immigration attorneys charge $150 to $300 per hour and a deportation defense costs from $2,000 to $10,000. Multiplied by the more than 504,000 cases initiated in fiscal year (FY) 2019 alone, the potential total cost for representation is significant. The Department of Justice (DOJ) reports that aliens have private representation in 65 percent of all pending cases, and in 87 percent of pending asylum cases.
Aliens typically appeal negative decisions by immigration judges to the DOJ’s Board of Immigration Appeals (BIA). According to the DOJ, nearly 63,000 appeals were filed in FY 2019. Filing an appeal to the BIA is a common delay tactic to spend more time in the U.S., in the hopes of becoming eligible for another form of relief from deportation during the appeal. With almost 72,000 appeals pending at the end of FY 2019, it takes the BIA from eight months to over 18 months to complete per appeal. An appeal racks up even more hours of attorney time and is another significant expense.
Representation for appeals to the BIA is included in aliens’ “privilege of counsel” that is provided by section 292 of the INA. Accordingly, the DOJ provides a public list of private pro bono legal service providers for those aliens who cannot afford an attorney.
Attempts to Expand the Right via Minors
Despite U.S. Supreme Court rulings and clear statutory language, activist judges, liberal Members of Congress, and open-borders advocates have sought to expand the bright-line rule, starting with alien minors. An article in the Stanford Journal of Civil Rights and Civil Liberties expressly states this approach:
[C]ases involving unaccompanied children present especially special circumstances, and the current state of the law thus indicates that appointing them counsel has risen to the level of being inherent in the contemporary notion of fundamental fairness. If the right to appointed counsel is to take hold in immigration proceedings, history suggests it might first find footing at a particularly vulnerable core like this one, and expand outwards from there.
The 2019 Trafficking Victims Protection Reauthorization Act addresses the right to counsel for unaccompanied alien minors. It requires the Department of Health and Human Services (HHS) to “ensure to the greatest extent practicable, and consistent with section 292 of the [INA], that all unaccompanied alien children” in HHS custody have counsel, not only to represent them in legal proceedings, but to “protect them from mistreatment, exploitation, and trafficking.” Congress further required that the HHS Secretary “shall make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.”
The Obama Administration provided funding to legal service providers to increase such representation. The Justice AmeriCorps program awarded $1.8 million for representation of certain minors in immigration court, and HHS subsequently provided an additional $9 million for representation in FY 2014 and FY 2015. The FY 2020 appropriations act directed that $160 million of HHS funds be used for legal services, child advocates, and post-release services. Providing legal service providers federal grant money, however, violates the statutory requirement that alien representation be “at no expense to the Government.” Accordingly, the federal government should refrain from granting funds for legal counsel in immigration court.
Expanding the Right to Counsel and Taxpayer Funding
Some politicians on the left have sought to expand aliens’ right to counsel even beyond proceedings before an immigration judge and the BIA. These efforts include adding counsel for immigration inspection by a U.S. Customs and Border Protection agent at a port of entry. But when a person in immigration inspection is seeking admission to the United States, as a legal matter, he is outside the country.
The U.S. should not provide a right to counsel to aliens who are attempting to enter the country—whether legally or illegally. U.S. citizens do not have a right to counsel at ports of entry. Furthermore, if the right to counsel is extended to inspection, it could arguably then be extended to applying for a U.S. visa at an embassy or consulate abroad, which would overturn long-established and sound law.
Such a requirement would also be completely unfeasible at the extremely busy ports of entry that must process thousands of travelers every day. Ports of entry do not have the space to provide private rooms for travelers to meet with counsel. Also, such counseling would cause significant and consistent delays, impeding travel and trade.
Another expansion-of-counsel tactic involves state and local jurisdictions using taxpayer dollars for legal defense funds for aliens facing deportation. Chicago, Denver, Los Angeles, New York City, Portland, San Francisco, Seattle, Washington, DC, and other jurisdictions have such programs. The principle behind the “at no expense to the Government” language of the statute should apply to state and local taxpayers just as it does to federal tax dollars—taxpayers at any level should not have to pay legal fees for an illegal alien.
These state and local jurisdictions are taking money from important budgets, such as emergency relief, to provide legal funds for illegal aliens. Furthermore, these legal funds are mere gestures, given their small amounts of money, as compared to the overall attorney cost for removal proceedings and the never-ending demand from the large and continuous illegal alien population in this country. Such money should instead be spent on U.S. citizens and lawful residents of the jurisdictions.
Congress and the Administration should:
- Maintain the current bright-line rule that an alien’s right to counsel shall be at no expense to the government. This rule should not be expanded to certain populations of aliens, such as minors, nor should it be expanded to functions beyond immigration proceedings before an immigration judge or the Attorney General, such as inspection of travelers at ports of entry.
- Refrain from providing federal grant money to legal organizations that provide pro bono services for aliens in removal proceedings. This violates the clear statutory language that such services shall be at no expense to the government.
The public should:
- Oppose state and local jurisdictions that provide, or plan to provide, legal defense funds for illegal aliens. Taxpayers at any level should not pay legal fees for illegal aliens. These funds should be prioritized for U.S. citizens and lawful residents.
An alien’s right to counsel for civil deportation proceedings should not be expanded. To do so would give illegal aliens more privilege than that given to U.S. citizens. Rather, the federal government and Americans at the grassroots level should maintain the principle behind the current law: No public funds at any level of government should be used to fund attorneys for illegal aliens.
Lora Ries is Senior Research Fellow for Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation.