This is the fifth part in an ongoing series about the Refugee Protection Act. The RPA contains many provisions to improve legal services and legal access for asylum seekers.
The root cause of many problems in the asylum system is that aliens are not provided with counsel. According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court. That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court). Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower—such aliens have limited access to attorneys and resources to help them with their applications. The RPA would improve this situation.
The RPA provides improved access to attorneys in several ways. First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel “if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel.” Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases. This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel. The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed. Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary. The RPA as written does not provide for an independent decision concerning the need for counsel.
Second, the RPA provides detained asylum seekers with improved access to legal services and resources. It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge. The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship. Under the RPA, all new detention facilities must be located within 50 miles of a “community in which there is a demonstrated capacity to provide free or low-cost legal representation,” and by January 2014, all detention facilities must comply with this location requirement.
Third, the RPA establishes a National Legal Orientation Support and Training Center to “ensure quality and consistent implementation of group legal orientation programs nationwide.” The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and “know your rights” presentations to detained aliens. The RPA would also provide grants to the non-profit agencies.
By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.