Immigrants in the U.S. who have obtained legal counsel are five times more likely to obtain citizenship than those without an attorney. Immigrants without legal assistance are often left stranded in Immigration and Customs Enforcement (ICE) detention facilities, separated from loved ones and unsure of their future. 

Due to the nature of these cases, many cannot obtain or afford an attorney to help guide them through the complex immigration process. Therefore, they rely on pro bono programs to provide them with legal counsel, so they do not have to fight their cases alone. 

With the backlog of immigration cases reaching 1.6 million in January 2022, organizations such as the National Immigration Project of the National Lawyers Guild, the American Immigration Council and The American Bar Association (ABA) seek assistance from the government to reimburse lawyers for their public service. 

With pressure from immigration and legal organizations, the federal government offers some reimbursement via the Equal Access to Justice Act (EAJA). The EAJA authorizes the government to pay attorneys’ fees for successful federal court litigation against the government. 

However, pro bono attorneys are finding that the federal government is fighting back against the filing of EAJA motions and fewer attorneys are receiving reimbursement. Incentives for lawyers to take on lengthy, complex and emotionally draining immigration cases on a pro bono basis are decreasing due to a lack of returns. 

Often, attorneys find that the government will contest an EAJA claim based on duplication or overbilling despite detailed time records kept by a court timekeeper. This added stress deters lawyers from taking on immigration cases and leaves thousands of immigrants alone and confused as they attempt to navigate the legal system in the U.S. 

The role of the EAJA cannot be overstated and requires closer scrutiny and a streamlined, straightforward process. Improvements need to be made in a timely manner so that pro bono programs can incentivize lawyers to join their teams and help immigrants in need. 

Rachel Cole was a Social Issues policy intern with ONC and a doctoral candidate at Walden University. She specializes in public policy analysis with a focus on U.S. immigration issues. Since earning her master’s degree in sociology, Rachel has worked with the Social Security Administration on policy issues regarding benefits for non-English speaking Americans. 

Sources:

“Attorney’s Fees and the Equal Access to Justice Act” Congressional Research Service, 10 June 2019. Retrieved on March 7, 2022, from https://sgp.fas.org/crs/misc/IF11246.pdf.  

“Pro Bono Program.” Americans for Immigrant Justice, 14 Jan. 2022. Retrieved on March 7, 2022, from https://aijustice.org/programs/pro-bono-program/.  

“Requesting Attorneys' Fees under the Equal Access to Justice Act.” American Immigration Council, 3 Oct. 2020. Retrieved on March 7, 2022, from https://www.americanimmigrationcouncil.org/practice_advisory/requesting-attorneys-fees-under-equal-access-justice-act.