The Biden administration aims to spend millions of dollars to cover the cost of lawyers for migrants who have illegally entered the country, a prospect that has infuriated immigration restrictionists.
President Joe Biden proposed in his immigration plan released this week that Congress should make available $15 million to cover the costs of private lawyers for “families and vulnerable individuals,” with another $23 million to cover legal orientation programs administered by the Justice Department. The proposal, first outlined in Biden’s fiscal year 2022 budget, is the first time that an administration has proposed covering such an expense, and the White House has not shared additional information.
The $15 million in funding would only be enough to cover several thousand people, according to a study from the Heritage Foundation, a conservative think tank. Immigration lawyers charge between $150 and $300 per hour.
Heritage senior fellow for homeland security Lora Ries last year examined deportation defense costs to provide a frame of reference for asylum cases and found each person spent between $2,000 and $10,000. At the lower end of $2,000 per person, 7,500 migrants would be able to have lawyers. On the higher end of $10,000 per person, just 1,500 people would be covered.
Over the past four months alone, 190,000 people illegally came across the southern border with a family member, and another 64,000 unaccompanied children arrived in America. The cost to the federal government of providing lawyers for those 250,000 family members and adults, at the $2,000 rate, would be approximately $500 million.
“They talk about providing legal representation to families and vulnerable individuals,” said Andrew Arthur, a former federal immigration judge from the York Immigration Court in Pennsylvania. “We don’t really know what that consists of, but it could be just families. It could be just women with children. I don’t know. The language is so vague — it’s problematic.”
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Ries and Arthur, a resident fellow in law and policy for the Center for Immigration Studies in Washington, a group that advocates for tighter restrictions on immigration, pointed to a passage in the Immigration Nationality Act that they said bars the government from spending its own money on legal representation in immigration proceedings.
Section 292 of the law states that “in any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”
“An alien should pay for their own counsel, or there are many, many pro bono organizations and advocacy organizations that can represent them. The American taxpayer should not be paying for an attorney for someone who is removable,” said Ries.
Ries and Arthur said it would not be fair to provide lawyers for people in immigration cases, which are civil matters, because U.S. citizens and legal permanent residents do not receive taxpayer-funded legal representation if they are the defendant in other civil matters, such as divorces or rent disputes.
“The idea that we would provide to aliens [representation] that we don’t provide to citizens is exceptional in and of itself,” said Ries. “It’s making removable aliens better off than U.S. citizens.”
Migration Policy Institute Senior Fellow Muzaffar Chishti defended the plan, saying it would improve the chances that migrants show up to court.
“People who have legal counsel have a better chance of getting their claim successfully adjudicated, but more importantly, people who have legal counsel actually show up for the hearings,” said Chishti. “Not only will it improve the due process aspect of an asylum claim, but it also will make it more efficient.”
But Arthur said immigrants with lawyers are more likely to show up to court because they spend their own money on lawyers and have money on the line. In his mind, this latest move by the Biden administration is the first step toward spending far more than $15 million to ensure every person who enters the country without permission has a better chance of being admitted.
“There’s no real identified need for this,” Arthur said. “It’s an attempt to provide paid counsel to aliens in every immigration case.”
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Migrants seeking asylum first appear before an asylum officer, then an immigration judge. If they appeal a judge’s decision, their petition will go before the Board of Immigration Appeals and then reach the federal court. The many steps are another reason why Ries is concerned that the payments could stick taxpayers with an “astronomical” bill.
