Representing Noncitizens in the Context of Legal Instability and Adverse Detention Precedent

By Nancy Morawetz
December 1, 2023

This Essay addresses three structural aspects of immigration law that have shifted in recent years and present important challenges for delivering adequate representation.  Although the Katzmann study group’s many initiatives have shored up access to counsel in immigration courts and for immigration applications, the ground has been shifting under our feet.  This Essay discusses three (of many) phenomena that make it harder than ever to lawyer on behalf of noncitizens.  The first is the rise of red-state lawsuits that lead to enormous unpredictability about the agency rules under which lawyers can expect to operate.  The second is the individuation and constitutionalization of detention law, which is particularly challenging due to the increased transfer of detainees to remote locations.  The third is the changing dynamic around choice of law for immigration courts and a disconnect between circuit court and U.S. Supreme Court decisions.  This dynamic has created uncertainty about what circuit court rules apply and instability about what substantive rules will apply both in immigration court and on appeal.  Each of these phenomena mean that lawyering for noncitizens facing removal is more complex than ever.  Although there are opportunities embedded in some of these changes, there are also enormous hurdles that make the task of lawyering extremely complex.

This Essay explores the nature of these challenges and suggests ways for legal organizations to prepare themselves for the new landscape.  The issues discussed in this Essay affect (1) the kinds of claims lawyers need to be prepared to make, (2) the kinds of courts in which they must appear to pursue those claims, and (3) the importance of legal developments in other parts of the country to those practicing in a given jurisdiction.  Lawyers representing those facing removal need to be nimble, well-resourced, and able to think creatively about where the law might be as a case winds its way through the system.  These changes are not just reasons for robust continuing legal education, but also aspects of the practice that require different ways of lawyering and different types of capacity in organizations serving noncitizens.  As we seek to build a quality bar, we must pay attention to those challenges to provide effective representation.