Is EOIR's Legal Orientation Program Necessary?

By Andrew R. Arthur on April 2, 2018

The Office of Legal Access Programs (OLAP) is one of the lesser known components of the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA).

According to its website:

Since April 2000, [OLAP] has worked to improve the efficiency of immigration court hearings by increasing access to information and raising the level of representation for individuals appearing before the immigration courts and [BIA]. OLAP programs and initiatives include the:

  • Recognition & Accreditation (R&A) Program
  • List of Pro Bono Legal Service Providers
  • Legal Orientation Program (LOP)
  • Legal Orientation Program for Custodians of Unaccompanied Alien Children (LOPC)
  • Self-Help Legal Centers
  • Model Hearing Program
  • BIA Pro Bono Project
  • National Qualified Representative Program (NQRP) and other congressionally mandated "pilot innovation programs".

Again, the LOP is one of the lesser known of EOIR's programs. As its website states:

Since 2003, EOIR has carried out the [LOP] to improve judicial efficiency and assist all parties in adult detained removal proceedings — unrepresented detained adults, the immigration court, Immigration and Customs Enforcement (ICE) and the detention facility.

Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention.

Through the LOP, representatives from nonprofit organizations provide comprehensive explanations about immigration court procedures along with other basic legal information to large groups of detained individuals. The program is normally comprised of four components:

Group Orientation, which provides an interactive general overview of immigration removal proceedings, forms of relief, and is open to general questions

Individual Orientation, where unrepresented individuals can briefly discuss their cases with experienced LOP providers and pose more specific questions

Self-help Workshops, where those with potential relief or those who wish to voluntarily depart the country, are provided guidance on specific topics (such as how to complete an asylum application or prepare for a bond hearing), and given self-help legal materials

Referral to Pro Bono Legal Services, where available.

EOIR manages the LOP through a contract with the Vera Institute of Justice and local subcontracting legal service organizations to provide program services. [Emphasis added.]

A footnote in a 2012 cost-savings analysis on the LOP states that: "In FY2011, the approximate per person cost for LOP services was $70." (Emphasis added.)

Immigration court is unique in that the regulations governing the court impose specific obligations on immigration judges to provide information to the aliens who appear before them, much if not all of which appears to be duplicative of the activities of the LOP.

In particular, 8 C.F.R. § 1240.10(a) requires immigration judges: to advise the alien respondent that he or she has a right to be represented at no expense the government; "to advise the respondent of the availability of free legal services" in the area where the hearing is being held; to make sure that the alien "has received a list of such pro bono legal service providers", as well as a copy of the alien's appeal rights; to inform the alien that "he or she will have a reasonable opportunity to examine and object to" the evidence that is offered against the alien, as well as to present evidence in support of his or her case; and to cross-examine witnesses presented by the government. That regulation also requires immigration judges to place respondents under oath, and to read the factual allegations and charges in the charging document (known as a Notice to Appear or "NTA") to the alien "in non-technical language".

In addition, under 8 C.F.R. § 1240.11(c)(1):

If the alien expresses fear of persecution or harm upon return to any of the countries to which the alien might be removed pursuant to § 1240.10(f), and the alien has not previously filed an application for asylum or withholding of removal that has been referred to the immigration judge by an asylum officer in accordance with § 1208.14 of this chapter, the immigration judge shall:

(i) Advise the alien that he or she may apply for asylum in the United States or withholding of removal to those countries;

(ii) Make available the appropriate application forms; and

(iii) Advise the alien of the privilege of being represented by counsel at no expense to the government and of the consequences, pursuant to section 208(d)(6) of the Act, of knowingly filing a frivolous application for asylum. The immigration judge shall provide to the alien a list of persons who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.

As an immigration judge in a detained court (i.e., one located at an immigration detention center), I was diligent in complying with these regulations. In fact, I can remember one particular case involving an alien from rural Guatemala who was completely unfamiliar with the concept of a court of law. The explanation of the proceedings, and of the alien's rights, took over 40 minutes. There was no alternative, however. Until I had complied with these provisions, I could not proceed with the alien's case. Under controlling case law, had I failed to comply with these regulations, my failure would have been reversible error. As importantly, however, I would have failed to perform my duties as a judge, a responsibility that I took seriously.

In addition, when taking pleadings, I would assess whether an unrepresented alien was eligible for any forms of relief. For example, I would ask every alien when and where the alien entered the United States, and if this was the alien's first visit to this country. If the alien had been physically present in this country for a continuous period of not less than 10 years, I would inquire if the alien had any qualifying relatives for purposes of cancellation of removal relief under section 240A(b)(1) of the Immigration and Nationality Act (INA) . If so, I would provide the alien with a copy of the Form EOIR-42B, the application for that relief.

I was trained to ask these questions, and to the best of my knowledge, my colleagues were as well. In light of this, it is not clear whether the LOP's "Group Orientation", "Individual Orientation", and referrals to pro bono counsel were redundant to my own responsibilities.

In addition, EOIR provides self-help materials, including (as noted) self-help legal centers within the immigration courts, as well as "Self-Help Guides to Immigration Removal Proceedings and Common Forms of Relief". Those guides cover such subjects as bond, asylum, cancellation of removal under section 240A(b)(1) of the INA, U-visas, T-visas, voluntary departure, and appeals, and also explain the purpose of the NTA, and how to access an attorney. Given the availability of these materials, it is not readily apparent that the LOP self-help workshops are necessary or worth the cost imposed on the government.

Respectfully, it would make more sense for the immigration judge, a trained practitioner of immigration law, to undertake the duties of the LOP to the degree that such duties are not already required of the court. Removal proceedings are conducted on the record, and the transcript would contain proof that the court had complied with any such requirements.

To the degree that representatives from non-profit organizations wish to supplement the court's actions, they should be free to do so, at no cost the government.

The attorney general has shown an inclination to review immigration-court processes and procedures through his recent exercise of his referral authority in four separate cases. Perhaps DOJ should also undertake a new review of the LOP, and determine whether it is the most cost-effective method of ensuring that detained aliens in removal proceedings are aware of their rights, the nature of their removal proceedings, and their potential eligibility for relief.