Immigration Law

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A Justice Department review of its own legal education program for immigrants has found that those in the program are remaining in detention for longer on average than non-participants, the Associated Press has reported. But a nonprofit that provides the education says the DOJ’s study has “insurmountable methodological flaws.”

The dispute is over the Legal Orientation Program, which provides basic information on immigration court cases to immigrants in detention. The Executive Office for Immigration Review in the DOJ contracts with the nonprofit Vera Institute for Justice to deliver those services; the ABA Commission on Immigration is one of several subcontractors to Vera. In April, the DOJ said it was suspending the program pending a review of its cost-effectiveness. After a public outcry, including from the ABA, the department abandoned the suspension but continued with its review.

The first part of that review was issued Sept. 5. It found that among detained immigrants, those who were part of the LOP stayed longer in detention and were less likely to end up getting lawyers. Outcomes “do not vary greatly,” but those who went through the LOP had slightly more hearings on average, and their cases took longer to resolve.

But Vera publicly took issue with those findings and the way they were reached. In a statement released the same day as the study, the institute said it was getting “starkly different findings” in a study it had undertaken at DOJ’s request. Vera said that it would be submitting its study to the department the week of Sept. 10, but their findings have not yet been made public.

“The Vera Institute of Justice stands by LOP and will continue to do everything possible to safeguard justice and due process for each and every person,” the statement says. “With the vast majority of immigrants—84 percent—receiving no legal representation at all, LOP is often the only legal information immigrants receive.”

The statement also criticized the DOJ’s methodology, but didn’t go into details about what problems Vera perceives.

The DOJ study authors included a caveat that their review was complicated by incomplete and missing data. “Although EOIR developed alternative methodologies to account for the data not received and is confident in its methodologies, the inclusion of this additional data could have made the study more robust and could potentially have affected its conclusions,” they wrote.

The LOP provides group “know your rights” sessions to immigrants as well as brief individual sessions where immigrants can ask specific questions; self-help workshops on specific topics; and referrals to pro bono attorneys. There’s no right to court-appointed counsel in immigration court—because immigration violations are not criminal offenses—so those sessions offer one of the few opportunities for unrepresented immigrants to understand their choices and what’s at stake in their cases.

The program was created in 2003 under President George W. Bush. A 2012 study from the Justice Department found that immigrants who went through the program had an average of six fewer days in detention and completed their hearings 12 days faster, saving the government $17.8 million in a year.

By contrast, the Sept. 5 study concluded that the longer average times in detention that it found cost the federal government $3,100 per person. The authors criticized the 2012 study, saying that although it had been through layers of review, it was conducted by a single employee who was not a statistician and who oversaw the program being studied. They said that they had not been provided with “the detailed methodology used in connection with the data underlying the 2012 report and, therefore, could not replicate it or its findings,” and that the department “no longer relies on the robustness of the 2012 study.”

In April, former ABA president Hilarie Bass publicly applauded DOJ’s choice not to suspend the program and said she was confident that the department’s review would find it’s “a cost-effective and essential piece of our nation’s immigration system and our desire to provide due process for all.”

The results delivered Sept. 5 are from the first of three phases of DOJ’s study. The next will continue the look at the program’s impact on detained immigrants, analyzing whether it has an effect on the relief they seek and how long their hearings are. The department says it will be delivered by the end of September. Phase three will look at the effects of the program’s Immigration Court Helpdesk, which offers help to non-detained immigrants in certain large cities.