March 15, 2023 - Podcast

Episode 353 — Big Law’s impact on immigrants in the appellate courts

Immigrants who sought relief from deportation in the federal appellate court system were three times more likely to succeed when they were represented by an attorney from one of America’s top 200 law firms rather than by smaller or more specialized immigration firms, according to a new study by researchers from Indiana University's Maurer School of Law.

Because they possess enormous resources, have teams of colleagues who are ready to assist, and have great familiarity with the norms and practices of the federal appeals process, the so-called Big Law firms can be quite successful in helping immigrants who are in the federal appellate courts avoid deportation.

The researchers — IU law professor Jayanth Krishnan, third-year law student Megan Riley and University of Notre Dame Visiting Fellow Vitor Dias — examined more than 23,000 immigration cases in the federal appellate courts during the administrations of Presidents Barack Obama and Donald Trump.

Krishnan says that immigrants in these appellate forums do far better when they have Big Law lawyers compared to when they don't. He said that non-Big Law lawyers have played a crucial role in the Justice Department's immigration courts and in the U.S. Citizenship and Immigration Services agency where the bulk of immigration work takes place. But at the federal appellate level, it was Big Law firms that were especially effective. This gap between the win rate by Big Law and that of non-Big Law attorneys was something that they now better understand after conducting their research.

During the previous administration, for example, immigrants were clearly a target of former President Trump [as] he enacted policies that were intended to increase deportations and reduce the procedural options available for staving off removal from the country, the researchers say.

One of Trump’s first executive orders after taking office in January 2017 was an attempt to restrict mobility into the U.S. from people coming from Muslim-majority countries. Those who had been approved to enter from abroad had their visas revoked, and others who had already arrived were detained at American airports or told they had to return home, Krishnan says. The response by immigrant rights advocates was immediate, with more than 1,000 volunteers stepping up to provide legal representation.

A noteworthy number of those volunteers were from Big Law firms who were particularly helpful during the federal appeals process.

Additionally, Big Law success was even greater during the Obama administration, which had also been harshly criticized by advocates for being excessively focused on the deportation of immigrants. Data analyzed by the researchers found that Big Law attorneys were successful in about 44 percent of cases during the eight years Obama was in office compared to a success rate of 13 percent by non-Big Law lawyers. The authors believe one of the key lessons from the study is how important it is for everyone to have access to top-notch legal representation.

The researchers say they now know that at the federal appellate level, just like in lower-level immigration courts, the effect of having the right attorney leads to a far better chance of success for the individual.

The study highlights opportunities for attorneys to do more when it comes to assisting immigrants — who don’t have a right to government-appointed counsel in immigration proceedings — as they navigate an often complex and costly process.

According to Krishnan, Big Law's work to date has been laudable and life-changing for those immigrants who have prevailed, but there is the exciting possibility for lawyers from these firms to do even more. He has seen that there is a deep desire among many Big Law attorneys to help. The hope is that this aspiration will be scalable so that immigrants currently languishing with futures that appear both bleak and uncertain can receive the legal assistance they so desperately need — sooner rather than later.