“In all criminal prosecutions, the accused shall enjoy […] the Assistance of Counsel for his defence.”
– The U.S. Constitution, The Sixth Amendment (U.S. Constitution 1787)
Among a number of rights, the Sixth Amendment of the U.S. Constitution guarantees the right of criminal defendants to counsel (U.S. Constitution 1787). However, because deportation is legally classified as a civil rather than a criminal sanction—an interpretation codified in Fong Yue Ting v. United States—noncitizens facing removal are not afforded the same constitutional guarantee of representation (Supreme Court 1893). This legal distinction has persisted despite the increasing criminalization of immigration enforcement. Since the onset of the Crimmigration Era (2001 – Present), the U.S. federal government has significantly expanded surveillance, enforcement measures, and grounds for removal (Jiménez 2025). Consequently, a growing number of individuals now navigate deportation proceedings without counsel. The United States should extend the right to universal counsel to defendants in deportation proceedings, not only to uphold a moral imperative, but also to alleviate strains on immigration courts and social services.
Access to counsel for migrants is scarce and unevenly distributed. Deportation defense can cost $5,000 to $15,000 or more, a financial burden many immigrants cannot afford (Black 2024). As a result, only 37 percent of noncitizens facing deportation acquire legal representation; this figure declines to 14 percent for detained defendants (Eagly and Shafer 2016). Representation also varies by court jurisdiction and defendant nationality. New York City’s representation rate for non-detained cases is 40 percent higher than Atlanta’s (87 to 47 percent) (Eagly and Shafer 2016). Immigrants with court hearings in big cities are four times more likely to obtain counsel than those in small cities (47 to 11 percent) (Eagly and Shafer 2016). Additionally, Chinese immigrants have a four times higher representation rate than Mexicans (92 to 21 percent) (Eagly and Shafer 2016).
Limited and unequal access to representation is problematic because defendants with counsel are more likely to succeed at every stage of the court process. Among detained noncitizens, those with legal representation are four times more likely to be released (44 to 11 percent), 11 times more likely to seek relief (32 to 3 percent), and twice as likely to obtain such relief (49 to 23 percent) (Eagly and Shafer 2016). Similarly, non-detained immigrants are five times more likely to seek relief with an attorney (78 to 15 percent) and five times more likely to acquire that relief (63 to 13 percent) (Eagly and Shafer 2016). Given that representation significantly influences the outcome of deportation cases, the lack of universal access to counsel undermines the fairness of the legal system and reinforces systemic inequality.
Besides addressing a moral imperative, universal counsel would alleviate the immense backlog in immigration courts. In the 2024 fiscal year, the number of cases in the immigration court system doubled, from 1.8 million to 3.6 million cases (Straut-Eppsteiner 2025). Legal representation would expedite proceedings by preparing immigrants to present their case efficiently and effectively. With proper legal guidance, hearings would be less susceptible to delays, easing the pressure on an overburdened system.
In addition, universal legal counsel would ease the burden on social services. The deportation of one family member can cut the household income by 45 percent and would push 908,891 households with at least one U.S.-citizen child below the poverty line (AIC 2021). Deportations have already exacted huge human and financial costs. 5,000 children in foster care have a detained or deported parent (AIC 2021). Moreover, businesses suffer the turnover costs of losing employees, which are regularly 20 percent of annual worker wages (for workers earning less than $50,000) (CCUR 2016). Beyond paying for social services, the government funds an attorney to argue in favor of deportation in every proceeding (Eagly and Shafer 2016). Given the government’s ability to fund representation for itself, can’t the government afford the same expense for defendants?
Our society no longer questions the moral and constitutional duty to provide attorneys for individuals in criminal proceedings. Given the similar form and severity of the potential consequences, the moral imperative to recognize a right to government-appointed counsel for noncitizens facing removal is clear. The federal government should establish a federally funded legal representation system that guarantees counsel to all individuals facing removal. In its first year, the system should concentrate on vulnerable populations, including but not limited to detained people, children, and mentally disabled people. Its implementation will keep families together, employees working, and the immigration system operating. It is both fiscally responsible and morally imperative for the U.S. government to provide immigrants a defense against detention and deportation.
Bibliography
Tomas American Immigration Council. “U.S. Citizen Children Impacted by Immigration Enforcement.” American Immigration Council, June 24, 2021. https://www.americanimmigrationcouncil.org/research/us-citizen-children-impacted-immigration-enforcement.
Black, Rebecca. “How Much Does an Immigration Lawyer Cost in the US?” Rebecca Black Immigration Law, January 22, 2024. https://www.rebeccablacklaw.com/immigration-lawyer-cost-in-the-us/.
Constitution Annotated. “U.S. Constitution – Sixth Amendment.” Library of Congress, 2024. https://constitution.congress.gov/constitution/amendment-6/.
Eagly, Ingrid, and Steven Shafer. “Access to Counsel in Immigration Court.” American Immigration Council, September 27, 2016. https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
Jiménez, Tomás. “Who Gets to be a Citizen, Part 1.” 27 January 2025.
Straut-Eppsteiner, Holly. “FY2024 EOIR Immigration Court Data: Caseloads and the Pending Cases Backlog.” Congressional Research Service, January 24, 2025. https://crsreports.congress.gov/product/pdf/IN/IN12492#:~:text=Even%20as%20EOIR%20has%20hired,at%20the%20end%20of%20FY2024..
The California Coalition for Universal Representation. “California’s Due Process Crisis: Access to Legal Counsel for Detained Immigrants.” The California Coalition for Universal Representation, June 2016. https://www.nilc.org/wp-content/uploads/2016/06/access-to-counsel-Calif-coalition-report-2016-06.pdf.
The U.S. Supreme Court. “Fong Yue Ting v. United States, 149 U.S. 698 (1893).” Justia U.S. Supreme Court Center, 2020. https://supreme.justia.com/cases/federal/us/149/698/.
Woods, Kathleen. “For the Kids: Arguments in Favor of the Right to Legal Counsel .” The Bar Association of San Francisco, 2019. https://www.sfbar.org/wp-content/uploads/2021/06/2019-SFAM-Q2-for-the-kids.pdf.