Distributing Representation: Nonprofit, Private, and Pro Bono Attorneys’ Legal Advocacy for Immigrant Clients

Abstract

Scholars have established a positive relationship between having an attorney and immigrants’ case outcomes in a variety of immigration legal proceedings, otherwise known as the “representation effect.” Advocates and policymakers, in turn, have drawn on this work to argue for increased access to legal representation as a protective measure for immigrants, a defense against removal, and a long-term inclusion strategy. Yet much of this scholarship acknowledges we do not fully understand the underlying mechanism that explains the “representation effect,” particularly the role of attorneys in selecting certain types of cases (e.g., strong cases) than others (e.g., weak cases). This dissertation uses qualitative data to explain the representation effect by directly examining how attorneys articulate their decisions when representing immigrants’ claims in affirmative and defensive legal proceedings. I interview attorneys who practice humanitarian immigration law in 104 organizations across three practice settings (38 nonprofit organizations, 30 private law firms, and 36 corporate law firm pro bono programs). I find that immigration lawyers make complex decisions about who to represent and how. These decisions are heavily influenced by their organizational constraints, the cultural and bureaucratic limits of the law, local and state policy realities, and personal and professional ideologies. I explain how attorneys, regardless of practice setting, represent cases they predict they can help improve the odds of winning or the client’s legal situation in some way. How strong those odds need to be, however, varies considerably by attorneys’ practice settings. While all attorneys select cases they think they can help increase the probability of success in legal proceedings, their assessment of how much they can help, and how much that influences case selection varies by practice setting. Attorneys in resource-constrained nonprofit organizations who provide free or low-cost representation for clients applying affirmatively for humanitarian status select cases they think they can most likely win, excluding potential clients with weak cases. Attorneys in private firms, on the other hand, represent largely paying clients in removal proceedings and assess case strength in less stringent terms. And attorneys in corporate law firm pro bono programs select cases that fit the billable hours and professional development demands of their firms’ junior associates who provide volunteer representation. These decisions illuminate how some immigrants are chosen for representation while others are not, leaving immigrants with certain socioeconomic statuses, backgrounds, and case types without access to representation, despite potentially having pathways to legal relief and long-term status. I conclude by discussing the implications of depending on access to representation as an immigrant protective strategy, highlighting how legal representation as a short-term, micro-level intervention cannot, on its own, change long-term, macro-level understandings of who we deem worthy of inclusion in the U.S. and the bureaucratic structures for doing so. Potential solutions lie outside the realm of legal representation, yet whether political will for these solutions to be realized remains to be seen.