INTRODUCTION
For undocumented or liminallyFootnote 1 documented immigrants in the U.S. seeking long-term, stable legal status or fighting against their removal in immigration court, having access to an attorney can increase their chances of winning their claims. Several quantitative studies have empirically confirmed this “representation effect” (Reference Chand, Apolonia Calderon, Hawes and O'KeeffeChand et al., 2021; Reference Eagly and ShaferEagly & Shafer, 2015; Reference Miller, Keith and HolmesMiller et al., 2015; Reference RyoRyo, 2016, Reference Ryo2018; Reference Ryo and PeacockRyo & Peacock, 2019) or “the increased probability of a favorable outcome associated with legal representation” (Reference Ryo and PeacockRyo & Peacock, 2021, p. 634). At the same time, however, scholars acknowledge that we do not fully understand the causal mechanisms underlying this relationship, or the degree to which lawyers' case selection accounts for case outcomes.
Past ethnographic scholarship has helped explain the representation effect in one type of practice environment by showing how attorneys in nonprofit agencies assess cases for merit, advise clients on eligibility for legal options, draw on relationships with other attorneys and legal stakeholders, and help clients narrate their stories on paper and in front of adjudicators (Reference GalliGalli, 2019; Reference LakhaniLakhani, 2013, Reference Lakhani2014; Reference VillalonVillalon, 2010). Yet nonprofit legal services constitute only one environment in which immigrants might seek representation. To explore representation across the spectrum of legal representation options, I conducted 103 qualitative interviews with attorneys who practice immigration law not only in nonprofit organizations, but also in two understudied environments: private law firms and corporate law firm pro bono programs. My comparison of three types of attorneys across the immigration legal field shows how attorneys' practice environments shape their case selection decisions. All attorneys, no matter their organization type, select clients and cases that they think are a “good fit” for their representation, meaning a case in which they think they can help increase the probability of a favorable outcome. However, what types of clients and cases attorneys assess as a “good fit” for their work, and therefore, a case they think they could help win, varies by their organization type. Whether they assess a case as potentially winnable has as much to do with their own practice environment's organizational, personnel, and case management constraints as it does the case's own facts and characteristics.
Specifically, I find that attorneys in nonprofit legal services organizations (nonprofit attorneys) select low-income clients with “strong” cases that fit clearly into humanitarian legal categories and are also lower burden to represent because nonprofits have limited resources and an expansive prospective client pool. Attorneys in small and solo private practices (private attorneys) place less emphasis on case strength, articulating how they can even improve a very weak case's chance of winning, as long as the client understands the risks, wants to proceed, and can pay. And attorneys who run corporate law firm pro bono programs (pro bono attorneys) who receive their cases from nonprofit referral partners prefer cases with discrete, predictable timelines because their programs run on the volunteer work of young firm associates with high turnover rates and demanding billable schedules.
Comparing attorneys across different organizational environments reveals that not every immigrant who wants access to an attorney has access to the same attorney. Different attorneys advertently (between nonprofit and pro bono attorneys) and inadvertently (between nonprofit and private attorneys) sort clients among each other. Indeed, immigrants who have strong cases and cannot pay for an attorney may seek and receive nonprofit representation, while those with discrete cases with predictable timelines may be sorted into representation from a team of corporate law attorneys. Immigrants who have strong or weak cases and can afford to pay can secure a private attorney. It is immigrants who cannot afford to pay and have weak cases that perhaps find themselves without representation at all.
In understanding the key importance of “fit” from attorneys' perspectives, I help further the past scholarship on the representation effect in two ways. First, I complement other scholars' thoughtful calls to investigate the role of case selection in immigration system legal outcomes. By understanding that legal representation from an attorney's perspective starts with case selection, we see that access to representation is endogenous: clients with perceived helpable or even winnable cases are those whom lawyers select for representation. And once selected, representation does ultimately increase clients' chances of winning their claims. Despite having different case selection patterns, attorneys across all practice types emphasized picking cases they thought they could increase the chances of winning. Attorneys did not typically pick cases they thought they could not help for several reasons, including not wanting to waste their and their potential clients' time and resources, not wanting to clog the affirmative or defensive case adjudication pipeline, or not wanting to put a potential client in greater risk of removal if they were not in removal proceedings already. Those who acknowledged picking cases that they felt confident they would not win reported doing so rarely and with reservations or for ideological reasons, such as believing in the value of representation beyond winning.
Second, these findings help conceptualize future quantitative work on the attorney-case outcome relationship by highlighting additional aspects of case selection and emphasizing the importance of attorney characteristics and attorney variation. By comparing how attorneys' clientele and decision-making differ based on their organization type, I show that the effect of having an attorney is not homogeneous and cannot be accurately captured by a single binary variable. By showing how the immigration legal field engages in client sorting across attorney types, I hope future experimental and quasi-experimental scholarship on the representation effect will account not only for client and case characteristics, but attorney characteristics.
These insights have implications for an immigrant inclusion strategy that depends on access to attorneys. As local governments and advocates call for expanded legal representation at the local, state, and federal levels, they often argue that having an attorney will raise every immigrant's chance of success in legal proceedings (National Immigration Law Center, 2016; Vera Institute of Justice, 2020). In the absence of federal legislation for immigration reform that may increase the numbers of legal categories and numbers of immigrants who can regularize in and legally migrate to the United States, and in the slow process of making the immigration bureaucracy more efficient and fair, these calls for increased access to representation may be one of few feasible policy interventions. However, these efforts should acknowledge that an immigrant inclusion strategy that depends on attorneys will have inherent inequalities regarding who is represented or how, and that attorneys' decisions and practices are highly constrained by their organizational environments, including funding, personnel, and professional norms. Efforts to increase access to representation, including a government-funded, guaranteed right to counsel in removal proceedings, should consider their implications for client equity in who gets what types of representation.
LITERATURE REVIEW
To understand the role of attorney selection in the representation effect, I draw on three bodies of scholarship. First, I examine primarily quantitative scholarship on the “representation effect,” or the positive relationship between having an attorney and a likelihood of successful outcome in a range of civil legal proceedings. Second, I examine qualitative scholarship that observes what immigration attorneys do in their day-to-day work representing immigrant clients. This research highlights attorneys' expertise and provides a key explanation for the representation effect. Lastly, I highlight how existing scholarship has under-examined two key factors that might complicate the representation effect: the role of attorneys case selection and attorney variation by practice setting.
The representation effect in immigration proceedings
Scholarship on the role of attorneys in civil legal proceedings has consistently shown a positive relationship between having an attorney and favorable legal outcomes. This is true in a range of civil litigation contexts, such as housing court (Reference Cassidy and CurrieCassidy & Currie, 2022; Reference Seron, Frankel, Van Ryzin and KovathSeron et al., 2001) and family court (Reference Degnan, Thomas Ferriss, Greiner and SommersDegnan et al., 2018). Indeed, access to legal representation is enshrined in criminal courts through a Constitutional right to due process and corresponding government-funded indigent defense across the country. And while there is no parallel right to an attorney in civil proceedings, there has been much scholarly, advocacy, and policy interest in expanding the right to due process in these arenas and significant federal, state, and local government funding for civil legal services for the poor (Reference SandefurSandefur, 2019).
Research on the role of legal representation for noncitizens' outcomes in immigration legal system proceedings has found a similar relationship: having an attorney is correlated with more favorable legal outcomes in deportation proceedings in U.S. immigration courts, also known as the “representation effect” (Reference Ryo and PeacockRyo & Peacock, 2021). Past studies using both observational and quasi-experimental analytic approaches have found that having an attorney increases immigrants' chances of receiving bond from detention (Reference RyoRyo, 2016, Reference Ryo2018), defensive asylum claims in immigration court (Reference Keith, Holmes and MillerKeith et al., 2013; Reference Schoenholtz, Ramji-Nogales and SchragSchoenholtz et al., 2007), affirmative asylum claims (Reference Schoenholtz, Schrag and Ramji-NogalesSchoenholtz et al., 2014), and relief from removal (Reference Eagly and ShaferEagly & Shafer, 2015). Jurisdictions with more immigration attorneys are also associated with shorter immigrant detention lengths (Reference Ryo and PeacockRyo & Peacock, 2019) and fewer immigrant removals (Reference Chand, Apolonia Calderon, Hawes and O'KeeffeChand et al., 2021), implying that the concentration of attorneys has benefits for immigrants beyond direct representation of their respective cases. To date, there are no studies of the representation effect in affirmative applications to the U.S. Citizenship and Immigration Service, the benefits-giving arm of the immigration system, across humanitarian claim types.Footnote 2
Despite various facets of immigration law being highly adversarial, involving the detention of people, and potentially resulting in life-or-death outcomes such as removal from the country, immigration law is a civil area of law and similarly does not afford people a right to legal counsel (Reference ManuelManuel, 2016). Drawing on the scholarly evidence on the relationship between legal representation and legal outcomes, advocates across the country have pushed for increased access to legal representation in immigration civil proceedings as a strategy to protect immigrants from removal and afford them due process (Reference FarmerFarmer, 2017; Reference Tareen, Taxin and RojasTareen et al., 2016; Vera Institute for Justice, 2021).
Explanations: What do immigration attorneys do?
What explains the representation effect, or the relationship between having legal representation and favorable legal outcomes in immigration proceedings? Sociolegal scholars have described what attorneys do when representing clients in front of legal institutions and why these activities and practices matter for client outcomes. Attorneys possess specialized forms of expertise when making claims to legal institutions that their clients do not. Rebecca (Reference SandefurSandefur 2015) theorized two specific forms of attorney legal expertise: substantive expertise, or attorneys' knowledge of legal procedures and what the law says, and relational expertise, or relationships with legal actors that are necessary to navigate these procedures. Qualitative studies of lawyering show how attorneys use both substantive and relational expertise in their day-to-day work representing clients, whether in the criminal (e.g., Reference ClairClair, 2020) or civil legal context (e.g., Reference LakhaniLakhani, 2014). By possessing this specialized knowledge that non-lawyers do not have and yet rely on to make legal claims, attorneys determine people's access to legal institutions (Reference Marshall and HaleMarshall & Hale, 2014; Reference SandefurSandefur, 2008).
In the immigration legal context, several in-depth studies of immigration lawyering show the day-to-day work of being an immigration attorney and how attorneys activate their expertise (Reference GalliGalli, 2019; Reference LakhaniLakhani, 2013, Reference Lakhani2014; Reference VillalonVillalon, 2010). Immigration attorneys represent immigrant clients before U.S. Citizenship and Immigration Services, the bureaucracy that adjudicates immigration benefits and statuses including visas, legal permanent residency, and citizenship; and the immigration courts, the civil court that adjudicates whether a noncitizen should be deported. These studies have shown how immigration attorneys conduct intakes of potential clients to assess whether they are eligible for long-term legal status or deportation relief; advise clients of the benefits and risks of pursuing one or multiple legal options; confer and collaborate with other attorneys, local government actors, and immigration system adjudicators; and help clients narrate their stories for presentation in paper-based applications and/or verbal testimony (Reference GalliGalli, 2019; Reference LakhaniLakhani, 2013, Reference Lakhani2014; Reference VillalonVillalon, 2010). Through their work, immigration attorneys help relief-seeking clients apply for legal status, fight potential deportation, and present their case in the best possible light.
Accounting for attorneys' case selection and variation
Taken together, the existing research highlights two key takeaways: having legal representation is associated with a higher probability of positive case outcomes, and immigration lawyers potentially affect this outcome by using their varied expertise to help clients navigate the immigration system and find legal relief. I contend that this research, however, does not fully explain the representation effect for two reasons: researchers' difficulty accounting for (1) attorneys' case selection, and (2) attorney variation by practice setting.
First, scholars have acknowledged the difficulty of accounting for attorneys' case selection and disentangling how much of the effect of having an attorney is what the attorney does on behalf of the client versus client and case characteristics that determine their likelihood of securing representation. Sociologist and empirical legal scholar Emily Ryo, in her study of immigrant bond hearings, writes “It is possible that the attorney variable is endogenous. That is, detainees with legal representation may be systematically different from those who lack representation, and those differences might be related to hearing outcomes” (2016, p.133). Ryo's caution is corroborated by qualitative research that has extensively documented the decisions immigration attorneys make when selecting clients, such as screening out prospective clients whom they deem to not be eligible for relief or for whom their cases are too weak to justify the potential risk of applying for status. For instance, Lahkani's study of immigrant legal service providers in the Los Angeles area finds that, despite people of all genders and a wide array of crime victimizations being eligible for a U visa, attorneys chose to represent women who had experienced intimate partner violence due to organizational pressures and a desire to protect the policy goals of the U visa program (Reference LakhaniLakhani, 2019).
Second, the existing scholarship rarely disaggregates the “representation effect” by all attorney types. While a few studies have examined the differences (or lack thereof) between nonprofit and private immigration attorneys (e.g., Reference Miller, Keith and HolmesMiller et al., 2015; Reference Ryo and PeacockRyo & Peacock, 2019), much of this work either focuses on attorneys in one practice setting or acknowledges that they are unable to disaggregate attorney types due to limitations in administrative data (e.g., Reference RyoRyo, 2018, in her quasi-experimental study of bond hearings, is unable to match comparison cases by observed attorney characteristics, such as organization type). Other studies acknowledge variation, but do not treat this variation as an important factor in representation practice. For example, one interview-based study of asylum lawyering acknowledges variation in the immigration attorney community, but does not disaggregate findings by attorney type (Reference MellingerMellinger, 2021). And some studies do not acknowledge variation at all, conceptualizing representation solely as a binary variable (e.g., Reference Chand, Schreckhise and BowersChand et al., 2017). By not disaggregating between types of immigration attorneys, scholars have not been able to account for potential heterogeneity in the representation-outcome relationship.
Why does understanding and accounting for attorneys' case selection and variation matter? Policymakers and advocates often argue that because the representation effect is positive, then increasing access to legal representation is an obvious strategy to protect immigrants from removal and help secure their stable futures (National Immigration Law Center, 2016; Vera Institute of Justice, 2020). But scholars of legal representation themselves acknowledge that the representation effect is contingent and unequal: Ryo and (Reference Ryo and PeacockPeacock 2021), for example, show that the impact of having an attorney is mediated by the legal adjudicator and larger ecosystem in which an immigration court resides. It is possible, then, that efforts to increase legal representation will also have contingent effects on which noncitizens receive representation at all and who ultimately receives permanent legal status in the long-term: in the absence of a guaranteed, government-funded right to counsel, it is likely that some noncitizens will still be barred from representation based on attorney selection and variation. And in universal representation, or public defender models for immigration proceedings, attorney variation can result in varied effects in the same way they do in the criminal context (Reference ClairClair, 2020).
This study attempts to address some of these issues by showing, via in-depth interviews, how attorneys themselves articulate their selection practices and how these decisions are fundamentally based on the organizational environments in which they practice. I compare the legal representation decision-making of nonprofit, private, and pro bono attorneys who have access to the same potential clientele yet make different decisions about who they represent. These are the three groups of attorneys that scholars have addressed but never directly altogether nor conceptualized as practicing in one professional field and in the same jurisdictions with similar political contexts and potential client pools. I seek to understand how, in the spirit of past qualitative work that focuses on the decision-making of nonprofit attorneys (Reference GalliGalli, 2019; Reference LakhaniLakhani, 2013, Reference Lakhani2019; Reference VillalonVillalon, 2010), private and pro bono attorneys also make decisions when representing immigrants in legal proceedings. By understanding how immigration attorneys think about case selection and their organizational constraints, I show how immigrants' access to legal representation is ultimately a process of client sorting: different types and profiles of clients and their cases are sorted to different types of attorneys, who vary in what they perceive to be a case they can help increase the probability of a successful legal outcome.
DATA AND METHODS
Data and case
These findings are based on 103Footnote 3 semi-structured, in-depth interviews with attorneys who practice humanitarian immigration law in three types of settings (38 nonprofit legal services organizations, 30 private law firms, and 35 corporate law firm pro bono programs) located in two East Coast metropolitan areas. I conducted interviews between March 2019 and May 2022. I began this study by interviewing nonprofit attorneys to understand their experience of practicing humanitarian immigration law during the Trump Administration. This study did not originally explore the topic of case selection; rather, nonprofit attorneys brought up case selection in their conversations about the challenges of practicing immigration law during that time and I inductively incorporated the topic into future interviews. As private attorneys and corporate law firm pro bono attorneys also came up frequently in nonprofit attorneys' interviews, namely as referral sources for prospective clients, I expanded my sample to include these other lawyers. The resulting study compares how attorneys in different organization types make decisions when selecting clients from the same client pool in the same location.
These three types of attorneys represent the range of options that an immigrant client has for legal representation in an affirmative or defensive legal proceeding. Nonprofit attorneys provide free or very low-cost legal services; they work in nonprofit social service or legal service organizations, immigrant-serving organizations, or legal clinics at law schools. They often work in a small team of multiple attorneys. A few attorneys' organizations had extensive pro bono partnerships with corporate law firms, to whom they would refer specific, pre-screened cases. Private attorneys, on the other hand, charge for their services, with most attorneys in this study charging flat fees that range between a few thousand to over ten thousand dollars per legal matter. They commonly work in solo practices as the only attorney or small firms with a few other attorneys; some work in larger firms with up to 11 attorneys and several paralegals and other support staff. Pro bono attorneys in this study were leaders of corporate law firm pro bono programs who had decision-making power in determining their immigration caseloads. Their immigration cases, like almost all their cases across pro bono practice areas, were referred by nonprofits with whom they had formal partnerships. Their immigration work is done in the context of their big law firms' institutionalized pro bono programs, where associates and other firm lawyers are compensated for doing volunteer legal work across multiple areas (e.g., housing, family, or environmental law) for in-need clients.
There is also variation between organizations within the same practice type. Nonprofit attorneys work in a range of organizations with slightly different missions, structures, and goals. Some nonprofits serve immigrants only; some only serve immigrant survivors of crime. Others work in legal services or social services organizations with an immigration law subunit. They receive funding from a range of government and private sources. Private attorneys work in the context of running independent, small or mid-sized businesses and have full autonomy to make business decisions. And pro bono attorneys discuss their firms in relation to other “big law” firms, commonly noting national rankings and reputations (e.g., being in the top 20, 50, or 100 of the American Lawyer rankings versus 101 through 200; being a city-centric firm with one large headquarter office versus having no localized presence). These firms also varied on how much immigration pro bono work they did and whether they saw themselves as a specializing in immigration law (e.g., having a large direct representation caseload; taking on newsworthy impact litigation cases to challenge the federal government's immigration policy; hiring full-time immigration attorneys to join their pro bono teams). Appendix A presents key organization characteristics (Tables A1–A3).
The purpose of interviewing different types of attorneys who practice in the same sites is to “control” for policy context. Attorneys' organizations were in two East Coast metropolitan areas comprised of overlapping federal, state, county, and city jurisdictions. I selected these two sites initially to explore whether there were salient comparisons; they ultimately were very similar. Both sites represent what attorneys considered to be almost “best case scenarios”: they practiced in politically liberal, purportedly immigrant-friendly locales, with local government funding for immigrant legal services and other welcoming government policies. Their metropolitan cores were surrounded by a patchwork of counties and towns that ranged from just as to less welcoming to immigrants. Their immigration courts and federal appellate jurisdictions were considered more liberal than the national average. While nonprofit and private attorneys worked in localized programs, the national stature of most corporate law firms meant pro bono attorneys oversaw programs that spanned across all firms' offices. I only interviewed pro bono attorneys in firms with at least one office in either of the two study sites.
Data collection and analysis
I identified attorneys in each subsample primarily via publicly available online resources. For nonprofit attorneys, I used legal services directories in each study site and corroborated these lists with local government grantees, the Executive Office of Immigration Review's lists of nonprofits, and national legal services databases. I identified private attorneys via the American Immigration Lawyers Association legal directory's list of attorneys who practice asylum law. I identified pro bono attorneys by identifying a pro bono point of contact (often a pro bono partner, counsel, or coordinator) in firms listed in the 2021 American Lawyer ranking of the top 200 firms. To recruit participants, I primarily relied on purposive sampling supplemented by snowball sampling from participants. I emailed each identified point of contact inviting them or a member of their team to participate in an interview about practicing humanitarian immigration law during a time of dramatic policy change.
By identifying and recruiting interviewees using this method, there is a degree of self-selection among attorneys. I interviewed attorneys who self-identified as ethical professionals. For instance, several private attorneys distinguished themselves from who they considered to be unethical attorneys that charge clients exorbitant fees to file false asylum claims. Despite the self-selection of study participants, I believe the mechanism of case selection in explaining potential outcomes still applies to attorneys who strive to practice immigration law according to field's dominant professional standards. Attorneys may potentially select clients based on slightly different considerations in other jurisdictions outside of the ones in this study, but the mechanism of case selection would still apply.
I conducted 18 interviews in person, 34 via phone, 51 via Zoom, and one interview in two parts (phone and in-person). I conducted all but one in-person interview before March 2020's onset of the COVID-19 pandemic. The shortest interview was approximately 30 minutes; the longest approximately three and a half hours. I recorded all interviews except for eight participants who did not wish to be recorded, during which I took electronic notes. All recorded interviews were transcribed by either AI-assisted transcription software Temi or professionally transcribed; I reviewed each completed transcript for accuracy no matter the transcription method.
The interviews covered largely the same topics for each attorney group. The interview typically started by discussing attorneys' personal and professional backgrounds; their organization's background, mission, and structure; and basic descriptions of the types of immigration law they practiced and client trends. Then we discussed the composition of their caseloads (e.g., proportion in removal proceedings versus affirmative-only proceedings) and what types of cases they saw as a “good fit” for their representation. We also discussed policy changes over the last several years and the impact of those changes on their organization's work. Toward the end, I would ask attorneys for their perspectives on a range of big-picture immigration topics, including whether they would make any changes to existing immigration statuses based on victimization and suffering; the intertwining of the immigration and criminal legal systems (or “crimmigration” (Reference StumpfStumpf, 2006)); access to legal representation and expansion efforts; and any policy or practice changes they would recommend. I asked attorneys in each subgroup some questions that were specific to their practice type, such as asking private attorneys about how much they charged clients or asking pro bono attorneys to respond to specific critiques of the corporate law firm pro bono model for legal services.
After interviews with nonprofit and pro bono attorneys, I asked them to suggest attorneys in similar organizations who they thought would be interested in speaking about the issues we covered. The purpose was to triangulate my own list of organizations that I was using to recruit participants and utilize snowball sampling in instances where I had not already identified a potential participant. I did not ask participants to reach out to their contacts on my behalf; rather, I conducted the outreach myself and did not name the recommender. I did not ask this question of private attorneys, since the universe of potential private immigration law firms is much more extensive than nonprofit organization and corporate law firms. A few private attorneys did recommend other private attorneys on their own.
To analyze the interviews, I used the flexible, in-depth coding method (Reference Deterding and WatersDeterding & Waters, 2021). I collected and analyzed interviews with nonprofit attorneys first and began analysis with two exploratory rounds of coding: one to capture interesting and emergent themes, and one to capture the varying jurisdictional levels of immigration policy change and their impact on attorneys and their clients and organizations. My third round of coding introduced the flexible, in-depth coding method. I first coded large swaths of each transcript with descriptive “index” codes, followed by research question-specific “analytic” codes that focused on content already coded via index codes. I followed this process with completed private and pro bono attorney interview transcripts, using the same index codes I had used with the nonprofit interviews. For this paper, I applied “analytic” codes focused on determinants of case selection to previously index coded transcript sections.
I complemented these rounds of coding with post-interview notes and analytic memos. I took notes after every interview to reflect on salient topics and new and repeated theoretical and empirical insights. I also wrote and discussed analytic memos with peers, advisors, and other scholars to reflect on topics that seemed particularly salient to the interviewees themselves and in the existing scholarship.
FINDINGS: A “GOOD FIT”
“Fit” as winnability
From the start of our firm, we always thought that we would only take cases if we believed that whatever interference we had as an attorney was going to somehow improve the situation for the person. If I don't think that I can put my client in a better position, I generally don't take the case at all. (Private Attorney A12)
Attorneys recounted selecting clients and cases that they predict they can help improve the chances of winning and exclude cases they think they cannot. When interviewing attorneys about their work representing immigrant clients in humanitarian legal proceedings, I asked them to describe what types of clients and cases their organizations sought to represent (e.g., immigrants seeking legal help or humanitarian-status seekers broadly, or victims of gender-based violence or unaccompanied youth), the overall composition of their caseloads (e.g., what proportion of their caseloads is affirmative filings with U.S. Citizenship and Immigration Service versus defense representation in immigration court; family-based application versus humanitarian-based applications), and what types of cases they would accept versus turn away. In response to these questions, attorneys overwhelmingly invoked the idea of certain cases being a “good fit” for their work while others are not. They understood “fit” in several ways, including being a match for their organization's mission and goals; their professional specialty and niche; and their professional preferences for the type of immigration legal work they did.
Central to this idea of “good fit” is the idea that attorneys, through their work, could help some subset of all potential clients, versus other clients and cases, get a likelier positive outcome. While attorneys were very explicit in saying that they can never guarantee a certain outcome to a client or ensure a win, they did draw on their and their colleagues' experience and expertise to gauge whether they could feasibly help improve the probability of a client winning their specific claim. And despite all practicing the same law with the same credentials and having the same potential client pool, they frequently invoked the idea that they could not help everyone and that their specific services or work was better suited or utilized for some potential clients over others. Their rationale was that it was not worth their or the prospective client's time and resources to represent someone for whom they could not actually help move their case forward, or could do so with more difficulty but at the expense of other clients or their organization's capacity or goals. And they were clear that they could not help every client move their case forward: most attorneys described some subset of possible immigration cases that they could not help, based on a combination of client and case characteristics and their own and their organization's characteristics. For instance, attorneys across organization types often invoked the idea that “crim-imm” or “crimmigration” cases, that is, one that involved a client with a complicated criminal background, was not a good fit for their work because they did not have specialized expertise in that area and would refer those cases to someone with that specialty.
“Fit” varies by attorney type
While attorneys across organization types thought about what cases were and were not a good fit for their representation, their assessment varied based on their organization types, or whether they practiced in nonprofit organizations, private practices, or corporate law firm pro bono programs. Below, I compare how nonprofit, private, and pro bono attorneys described their caseloads, their organizational structures, and ultimately the cases they viewed were a good fit for their representation. Table 1 summarizes attorneys' key case selection considerations based on their organization type.
TABLE 1 Case selection variation by attorneys' organization type.
Nonprofit attorneys: Demand outweighing capacity
Nonprofit attorneys typically described caseloads that leaned affirmative, with mostly humanitarian filings to U.S. Citizenship and Immigration Services. While many did represent clients in removal proceedings, few had significant caseloads of clients that started as removal cases, i.e., clients seeking representation after they were already placed in removal proceedings or recent entrants who were released after encountering U.S. Customs and Border Patrol.
When explaining who they represented and who they did not, nonprofit attorneys described facing two key restrictions: they could only provide free legal services to clients with demonstrated economic needs (typically under 200% of the federal poverty level) who also fit within their organizational eligibility. To provide free legal services, nonprofit attorneys' salaries were paid by their organization's program and operating budgets that are primary supported by local, state, and federal government grants and private individual and foundation donations. A few nonprofit attorneys reported charging low-cost consultation or representation fees that were offset by their larger operating budgets. As a result, they reported selecting low-income clients who also matched the eligibility categories within their funding sources and priorities (e.g., federal Office of Victims of Crime funding to represent immigrant survivors of human trafficking apply for T visas). This attorney's response to my question about funding restrictions on potential clients was telling:
I'm actually looking at my grants cheat sheet right now. We have one [state] grant that doesn't allow us to do family law, immigration only, but others allow both. We have one [state] grant to serve [city] residents. We have a human trafficking grant to for [our] residents who are trafficked. Another grant covers specific counties in [state]. (Nonprofit Attorney B23)
She then went on to list the four counties that were covered by that grant, as well as two other county grants that covered only residents from those countries.
Nonprofit organizations also select clients that fit their organizations' missions (e.g., serving victims of gender-based violence) and their niche in the larger legal services field (e.g., specialize in immigrants from Central American countries). For example, the same attorney who referred to her “grants cheat sheet” also described how her nonprofit sorted out potential clients who were victims of crime but not of gender-based violence, which was her organization's focal population:
The case definitely needs to fit the mission. If you are an immigrant survivor of crime but it's not a gender-based crime, such as robbery. There are other ways to get a U visa but if there's no gender-based component, sexual assault, rape, stalking, human trafficking, intimate partner violence, child sexual abuse, forced marriage, female genital cutting, to name a few, if there's none of those things, we wouldn't be able to serve you and our higher mission and funding. It would be an automatic referral out. (Nonprofit Attorney B23)
Despite these organizational restrictions, the number of low-income clients who have economic need and are eligible for their services still exceed the nonprofit legal service field's capacity. When asked to describe what types of cases they thought were a good fit for their services once they cleared the income or mission hurdle, nonprofit attorneys overwhelmingly described explicitly “winnable,” “meritorious,” or “strong” cases, an assessment that was based on how clearly they thought the case fit into the existing legal categories and how much time, effort, and resources the case would take to represent. They justified these criteria during the Trump Administration due to a policy in which denied humanitarian filings with USCIS would result in a client being referred to the immigration courts for removal. Therefore, taking a client that had a weaker chance of winning their claim would not only take up resources that could be used to represent a different, more winnable case, but place the client in deportation proceedings. This nonprofit attorney mentioned a case with a prospective client who had a weak case but was insistent on filing a Violence Against Women Act Self-Petition:
There was just no way this person was going to get relief. And we talked a lot about it as a team, what do we do here? Do we support this person in trying to obtain this relief, even though we know it's not going to get granted, and that it very well could result in them being put in [removal] proceedings? Or do we just look at our resources and say it's not like we have too few cases and too many attorneys. Do we just look at our resources and say this isn't a case where we could put our very limited resources into? And we just decided on the latter. (Nonprofit Attorney A18)
Ultimately, this attorney, like many other nonprofit attorneys, determined that a prospective client with a weak claim was not worth the effort to represent, especially at the expense of other needy clients who perhaps had cases that were likelier to win, given their limited resources and the free nature of their services. Attorneys often lamented the idea that they could not help everyone; they had to make the difficult decision to select a small subset of cases from the larger pool.
Private attorneys: Running a small business
Among the attorney types in this study who represented humanitarian status-seekers, private attorneys had the most varied caseloads: some private attorneys had caseloads mostly comprised of asylum seekers, while others had family-based or employment and business-based immigration clients, with humanitarian cases as a minor subset; or heavy removal defense caseloads with humanitarian status as a defensive tool. When asked what kind of cases they represented, private attorneys tended to provide broader answers than nonprofit and pro bono attorneys. They often reported practicing across several immigration subareas and starting out practicing in one specialty before branching out to other ones when there was a sufficient prospective client pool to sustain business. They also suspected that their clients were often ineligible for nonprofit representation due clients' income, case type, or case strength; and often noted nonprofits' low capacity. Private attorneys also suspected it was possible that their clients did not want nonprofit representation due to some clients' perceptions that a free attorney was low quality.
Private attorneys also emphasized the choice they had in client selection, since they were not beholden to grant funding streams or income requirements. For instance, one private attorney said, “Unlike nonprofits, we can basically take any kind of client we want, any geographic location” (Private Attorney A10). Her business focused on removal defense, humanitarian relief, and family-based immigration, which is what she had practiced for a long time. She also mentioned that “we don't do any business immigration type stuff. A lot of private firms do, but we just don't have a background in that, or an interest in that.” Several private attorneys who left prior jobs in nonprofit practice, including this one, named their ability to decide their own caseloads as a positive change.
However, private attorneys also faced restrictions in who they represented. The key pressure private attorneys reported facing is having enough paying clients and case types to cover the costs of running their firms, including paying their own and staff's salaries and paying rent on their office spaces. The same attorney who said she and her firm partner could “take any kind of client we want” later followed up by saying “within limit, we'll take any kind of immigration case that walks through the door if they're able to pay” (Private Attorney A10). Unlike in a nonprofit organization where grants and donations pay for lawyers' salaries, clients pay for legal representation from a private attorney. Private immigration attorneys also noted that the norm in their profession is to charge flat fees per matter instead of an hourly rate, meaning one price regardless of how many hours the matter may take.
Therefore, private lawyers needed to represent enough cases at any given moment to make a profit and pay for the costs of running a business, but not take on so many cases that made running a business too difficult. Most private attorneys I interviewed worked in solo practices or in teams with less than five full-time attorneys; several emphasized the strain in running a small, “high volume” business, or a business that necessitated large caseloads. And because almost all attorneys charged flat fees for a case, instead of by the hour, they were careful about the volume of cases they needed to run their businesses without overwhelming themselves and their staff.
Because their clients pay for their work, private attorneys did not have to select only “winnable” cases the way nonprofit attorneys reported doing. When it came to their assessment of a case's strength, they had a much lower threshold for case strength than nonprofit attorneys did, emphasizing that they can and will represent a weak case as long as their client was willing to pay and understood the potentially low probability of winning and risks of losing their claim. For instance, attorneys commonly echoed the idea that after advising a potential client of their low odds of winning, it was up to the potential client to decide whether they would pay the money for representation:
If [clients] are eligible for relief but it's a weak case that I know could take a long time and it's going to involve sending my client for a psychological evaluation and more research on the country, I will say “you have a weak case but it's your only option” and it's up to them to pursue it or not. (Private Attorney B06)
If the chance of winning is zero, I won't do it. But if the chance of winning is something, I'll tell them. I'll give them my honest opinion as best I can about what's the likelihood for winning. But if they decide they want to go forward and it's a super weak case, I'll do it. (Private Attorney B15)
They were also much more confident that they could increase the probability of a very weak case still winning, with effort, research, and the passage of time—as long as they were being paid to do the work. They often shared anecdotes of winning cases they thought had no chance, or clients who pushed to have their case be represented despite the attorneys' own assessment of impossibility. They would also take cases that were already in a defensive posture that they thought they could help, even if they did not think it could win (e.g., a case that had been filed poorly with a different attorney that now was in removal or had an unfavorable decision and needed an appeal).
However, private attorneys did not report taking just any case for a potential client who could pay. There were two key constraints: professional ethical standards and firm bandwidth. The private attorneys in this study were careful to emphasize that they refused to take cases that were fraudulent or frivolous—instances where the basis of the client's claim was fabricated—because it was professionally unethical and ultimately illegal, with potential serious consequences for both the attorney and the client:
Some people have definitely come to me and told me things confidentially. And I say one, I can't take your case, and two, you would be breaking the law and/or putting yourself in really serious risk. I think that's a different calculation than someone coming to me with some type of situation where, based on my knowledge or experience, I think there's a pretty small chance of it being approved. Then I would just tell them. And then they decide, do they want to take the financial and emotional risk of going through this process? (Private Attorney B14)
Because private attorneys were solo practitioners or worked in small firms with few staff, they also avoided cases that might complicate how they ran their business and made a profit, including clients who they thought were lying about being unable to pay, clients who were “difficult,” and cases that would be more work, headache, and heartbreak than it was worth the money. This attorney discussed why she shied away from taking cases with clients in detention:
I don't like detained cases because I did a few of those and I think it's just, you know, you have to be so committed just to even one detained case that can completely eat up your entire workload. And the families are emotional. I had some strict rules about who can contact me during those cases, but usually it's like everyone. Every single family member wants to talk to you… It's just a tough practice. So I don't take those. (Private Attorney B09)
And an attorney's reason for not taking a case was often not because of their assessment of the case's merit or whether the client deserved representation, but because it was simply too psychologically burdensome. This attorney discussed the psychological costs of running his own immigration practice and how it impacted his case selection decisions:
As a solo practitioner, I'm the managing attorney. I'm the human resources person. I'm advertising, I'm the accounting person. So I have to take everything into consideration. And I deal with the clients and I'm the one going to court. It's just heartbreaking to be fighting cases that are not going to go anywhere. So what I've been trying to do is to try and agree to represent people who at least have a shot at it. (Private Attorney A11)
In summary, private attorneys described having more leeway to choose their clients than nonprofit attorneys; yet they were still constrained by the nature of running independent, small firms; the challenges of making a profit in a high-volume, flat fee-based business; and their own professional and personal ethics and preferences.
Pro bono attorneys: Appealing to firm associates
Immigration cases constitute a sizeable portion of many corporate law firms' pro bono programs, with attorneys in this study estimating immigration being the largest or one of the largest proportions of their pro bono cases, ranging from 10% to 50% of their overall caseloads. When asked what kind of immigration cases their pro bono programs represented, pro bono attorneys commonly responded by listing the various forms of humanitarian relief, as well as helping people adjust to legal permanent residency or citizenship. For example, this attorney listed all the key humanitarian immigration programs, noting that this was the makeup of most corporate law firm immigration pro bono cases:
Like most large law firms, we do all types of individual immigration cases. Primarily asylum, U visa, VAWA [Self-Petitions], citizenship applications, DACA applications, TPS applications. Helping people in certain categories transition to legal permanent residency. So pretty much we cover all those areas. (Pro Bono Attorney 22)
Because the mission of corporate law firm pro bono programs is to help underprivileged people with their unmet legal needs, their clients had to meet these criteria. And because pro bono clients were always referred directly from a nonprofit legal services partner, pro bono programs relied on their nonprofit partners (including several of the nonprofit organizations who participated in this study) to screen and refer potential clients that met both nonprofit and pro bono program requirements. This pro bono attorney echoed the same income guidelines that nonprofit attorneys did, explaining that it was their nonprofit partners' role to determine client eligibility:
Usually for individuals, it's they have to fall under certain income guidelines to get the provision of legal help. It's, I think, two hundred percent over the federal poverty guidelines, but we usually rely on the legal service providers to do that screening. Typically if we get a case from a legal service provider, it's kind of assumed that it has passed the Pro Bono Institute guidelines. (Pro Bono Attorney 02)
Although they received lists of or individual cases that have been pre-screened and referred by their nonprofit partners, pro bono attorneys' main constraint was on placing a case with a team of firm attorneys that typically comprised of a supervising partner and two to three more junior associates. Because all but one of the firms in this study had voluntary, not mandatory, pro bono participation policies, pro bono counsel had to appeal to the interests and workloads of their attorneys who would ultimately represent the case. These were often junior firm associates who were balancing demanding billable work with their professional development interests and personal passions. This junior associate workforce also experienced regular turnover, meaning it was challenging to develop immigration law expertise among volunteer staff. The pressure to appeal to firm associates' interests is directly related to field-level pressures (Reference BoutcherBoutcher, 2011) on pro bono programs to increase participation: interviewees often referenced national rankings or thresholds their firms wanted to meet, such as the American Lawyer magazine's metric of the percentage of a firm's lawyers who did at least 20 hours of pro bono work in a year and the average number of pro bono hours per attorney. Pro bono leaders described how, to meet internal or external metrics, they needed a program that was responsive to the needs and lives of their junior associate workforce that would ultimately take and lawyer the cases. For instance:
When people want to take on a pro bono case, they'll come to me and say, “I want to take something,” and I'll say, “ok let's talk. I want to find something that's a good fit. You're volunteering your time. You should get something that makes you feel good, helping the population you want to help, get you skills maybe that you want to get.” And so I'll match them up with something. (Pro Bono Attorney 05)
When asked what kind of case was a good fit for their pro bono immigration program, pro bono attorneys often did not emphasize outright the strength of the case, but the predictability of case timelines: “discrete,” “bite-sized,” and “predictable” were common adjectives they used. As one attorney shared and many others echoed:
I think that what the firm is looking for is a case that they can say won't take ten years, won't take five years, won't take two years, if possible. Something that's fairly discrete, that's the word you hear over and over again, that has a starting and an ending point and won't just spool out eternally. (Pro Bono Attorney 23)
The cases they received were already assumed to be strong contenders and “clear winners” for relief, as they knew their nonprofit partners would not have referred a weak case to a pro bono attorney team that likely had no background in immigration law. Additionally, associates would not want to take on future cases if they kept losing: “in terms of winning a case and finding a case, you want your associates to have a good experience and that usually means winning” (Pro Bono Attorney 05).
Pro bono programs could also represent “difficult” or resource-intensive cases if they had the internal expertise to help guide such a case. Several firms had immigration lawyers on their pro bono teams, or managed to develop internal expertise among a few associates over time. When an associate chose an especially difficult case, it was because someone wanted a particular type of challenge and the firm saw the benefit of dedicating their resources to doing so. Several firms also reported their pro bono programs hiring immigration attorneys from legal services organizations to help manage caseloads with long timelines. Firms also had resources to hire interpreters or had large enough staffs (e.g., a few hundred to over a thousand attorneys nationally) that they could find someone with non-English language skills to interpret for clients.
Therefore, pro bono attorneys described selecting cases that were already determined to be winnable with discrete, predictable timelines. This was due to their need to staff immigration cases with teams of younger associates in an organizational setting in which staff turnover and demanding billable work is the norm and field-level reputation for being a prominent pro bono program in terms of the average number of pro bono hours per attorney was an important goal.
In summary, each attorney type described patterns in prospective immigrant clients and cases they preferred to or felt professionally pushed to represent based on the type of legal organization in which they practiced. The rules, norms, resources, and ideologies of their respective organizations played a central role in conceptualizing who was a “good fit” for their legal representation. While nonprofit attorneys picked clearly winnable, low burden cases and rationalized this selection due to having few resources, private attorneys viewed their case selection as central to their maintenance of their small businesses, and pro bono attorneys picked cases that fit within the larger world of the corporate law firm's staffing and billable work demands. Attorneys described clearly different patterns when it came to who they selected and made different assessments about the same cases: a case that was a good fit for one type of attorney was not necessarily a good fit for another type of attorney. In describing their selection decisions, they described a process of sorting the same potential client pool (i.e., all representation-seeking noncitizens in the same two jurisdictions) between different types of attorneys.
DISCUSSION AND CONCLUSION
If I told you that last year, ninety percent of the cases we filed were approved and that shows what great lawyers we are, that would not be true. What that tells you is the types of cases that we're picking. A lawyer that's losing the majority of their cases might be a hack, but they might also just be picking the most difficult cases. (Nonprofit Attorney A15)
Summary of findings
Past scholarship on the representation effect in immigration legal proceedings has discussed the challenge of disentangling the role of case selection, acknowledging the possibility that immigrants who have legal representation may systematically differ from those without (Reference Ryo and PeacockRyo & Peacock, 2021). By asking immigration attorneys how they select cases to represent from a larger prospective client pool, I show that attorneys do indeed exercise significant discretion over the types of clients and cases they represent in both affirmative and defensive legal proceedings. I show how attorneys in three different types of organizations understand certain clients and case types as a “good fit” for their work. A case that is a “good fit” is one that an attorney thinks they can improve the chance of a positive outcome. This assessment is beyond simply attorneys' own capabilities and expertise, but is also heavily based on the constraints they face in their organizations. Their organizations' funding sources, missions and goals, intended client populations, and specialty and niche in the larger immigration law field all play a role in determining who their clientele is and what kinds of cases they think they can improve the chances of winning.
Extending the literature
By showing that attorneys themselves vary in how they practice immigration law and, importantly, how they select clients and cases for representation, I extend the existing quantitative and qualitative scholarship on the representation effect. My findings on how attorneys, via their case selection, sort immigrant clients between themselves suggest that the representation effect may be heterogenous by client characteristics, case characteristics, and attorney type. Quantitative studies should try to account for attorney variation across practice types, rather than as a binary variable or only between private and nonprofit attorneys. Quasi-experimental and experimental work could also match comparison groups by attorney characteristics, instead of solely client and case characteristics.
Qualitative work has largely focused on nonprofit legal services providers, and the one recent study that features both private and nonprofit attorneys does not compare findings by attorney type (Reference MellingerMellinger, 2021). While there has been significant scholarship about corporate law firm pro bono programs, little empirical work to date has focused specifically on how immigration cases have become a significant part of pro bono program caseloads. The work that does exist is hypothetical and poses that pro bono programs in large firms should specialize in difficult cases to push the boundaries of immigration law (Reference LakhaniLakhani, 2019). My interviews with pro bono leaders, however, shed light on why that may be difficult given corporate law firm constraints.
This study compares attorneys in two East Coast, politically liberal study sites with numerous and robust legal representation options across all attorney types. How might these findings differ in other locations with different compositions of attorneys or political leanings? How attorneys sort clients among themselves may differ based on the concentration of attorney types, for instance in rural areas where nonprofit infrastructure is low and there is an absence of corporate law firm pro bono relationships due to their primary presence in large and mid-size cities. Regardless of the how, I predict that attorneys anywhere will sort clients based on whether they think it is worth their and the client's time to represent a particular case. The factors they sort on are what may vary.
Policy implications
These findings have implications for an immigrant inclusion strategy that depends on access to attorneys. As governments and advocates call for expanded legal representation for immigrants at the local, state, and federal levels, they often argue that having an attorney will raise every client's chances of success in legal proceedings (National Immigration Law Center, 2016; Vera Institute of Justice, 2020). In the absence of federal legislation for immigration reform that may increase the number of legal categories and immigrants who can regularize in and legally migrate to the United States, and in the slow process of making the immigration bureaucracy efficient and fair, these calls for increased access to representation may be one of few feasible policy interventions.
However, these efforts should acknowledge that an immigrant inclusion strategy that depends on attorneys will have inherent inequalities regarding who is represented or how, and that attorneys' decisions and work are highly constrained by their organizational environments, including funding, personnel, and professional norms. As local and national efforts to expand legal representation continues, it is important for these efforts to specify who the attorneys are and the contexts they work in, and to pay attention to inequity in the distribution of legal representation. Who gets left out of existing efforts to increase access to representation when efforts are focused on increasing nonprofit capacity? This and other studies focused on nonprofit attorneys suggests unintentional selection biases based on cultural notions of sufficient immigrant suffering (Reference GalliGalli, 2019; Reference LakhaniLakhani, 2013). Similarly, how can we decrease the pressures on nonprofit organizations to select clients based on winnability so that they can serve more low-income people? Are there ways in which the private bar can play a bigger role in expanding access to representation, including government subsidization of private representation partnerships with social service nonprofits?
If we were able to secure a universal model of representation that leads to everyone in removal proceedings receiving a government-provided attorney if they cannot afford private counsel, it would still be important to consider attorneys' organizational constraints that can lead to unequal representation. A key argument for universal representation is the reduction of attorneys' case selection biases toward cases they think are “worthier” than others (Reference Berberich, Chen, Lazar and TuckerBerberich et al., 2018). However, scholarship in the criminal legal context shows that even in an environment with a right to counsel, attorneys differentially distribute effort, energy, and attention to different types of clients and cases (Reference ClairClair, 2020; Van Reference Van CleveCleve, 2017). Ensuring that a right to counsel in the immigration system does not replicate the challenges of government-provided lawyers in the criminal system is an important consideration.
A hyper focus on the “representation effect” is a potentially short-sighted argument for increased legal representation. Attorneys do not and cannot ethically guarantee outcomes; there is also value in what they do beyond securing a “win.” This study challenges conceptualizations of lawyering “quality” based on past win rate (e.g., Reference Miller, Keith and HolmesMiller et al., 2015) and case “difficulty” that is different from a seemingly consistent definition of what is a “hard” case (e.g., Reference MellingerMellinger, 2021). Rather, I argue that attorneys (particularly private attorneys in this study) can choose to represent cases they know they may not win, vary in what they think is a “hard” case, and are comfortable carrying a caseload with a lower win rate because they serve different segments of the representation-seeking immigrant population. What are some of the unintended consequences of advocating for increased representation based on a presumption of more positive outcomes, when the effects of representation are not equal across all lawyers and for all immigrant clients? Future research can help empirically answer these questions, but political consensus is also necessary to advocate for immigrants' right to counsel not solely based on the presumption of outcomes, but because legal system due process is a civil and human right regardless of citizenship status.
ACKNOWLEDGMENTS
The author is grateful to the attorneys who participated in this study. The author thanks Aaron Berman Fernandez, Julie Yen, Tyler Woods, and Jocelyn Viterna for their thoughtful comments on this manuscript. She also thanks organizers and participants of the Problem-Solving Sociology Dissertation Proposal Development Workshop for their feedback on this study. This material is based upon work supported by the National Science Foundation Graduate Research Fellowship Program under Grant No. DGE1745303, a Malcolm Hewitt Wiener PhD Scholar fellowship from the Multidisciplinary Program in Inequality & Social Policy at Harvard University, and a Summer Predissertation Award by the Graduate School of Arts and Sciences at Harvard University. This research has received IRB approval from the Harvard University Committee on the Use of Human Subjects (Protocol # IRB19-0392).
Key organization characteristics
TABLE A1 Nonprofit legal services organization characteristics
TABLE A2 Private immigration law firm characteristics
Source: Interviewee self-reported.
TABLE A3 Corporate law firm characteristics
a Source: 2021 American Lawyer ranking.
b Source: 2022 National Law Journal 500.
c Source: 2022 American Lawyer Pro Bono Scorecard. Not ranked indicates firms who did not provide complete information.
d Source: Interviewee self-reported.
