The Immigration Bar

We discuss three aspects of the immigration bar to establish the context in which we apply party capability theory: who can practice immigration law, how this practice is regulated, and the role of representation within immigration hearings. First, the overall threshold for practicing immigration law is quite low relative to other areas of law—one simply needs an unencumbered law license (Reference BarnesBarnes 2003). In most states, attorneys can self-identify as being immigration attorneys. Only four immigrant-heavy states offer certification as a specialist in immigration law (Texas, California, Florida and North Carolina).Footnote ² Second, regulation of attorneys practicing immigration law is sparse. It is difficult for key actors, such as IJs, to file complaints of ineffective counsel directly to state bar associations. Instead, IJs must go through the DOJ's General Counsel (Reference ShannonShannon 2009). The standards set by the Board of Immigration Appeals (BIA) for aliens filing an ineffective assistance of counsel claim are fairly high and include first a filing with the relevant state bar association. Of course, asylum seekers who are denied relief and deported are unlikely to be able to file a grievance. Adding to this difficulty, BIA case law regulating an ineffective assistance of counsel claim has been in flux in the last decade.

The need for adequate counsel in immigration cases, and in asylum hearings in particular, is quite apparent. Reference McKeown, McLeod, Ramij-Nogales, Schoenholtz and SchrageMcKeown and McLeod (2009: 287) posit that “underrepresentation and poor quality of representation in immigration proceedings are but two of the trends noted frequently in federal appellate case law and showcased by the American Bar Association (ABA).” They claim “at every stage of immigration proceedings…the presence of competent counsel improves the efficiency of case processing and the administration of justice (289).” Noncitizens are particularly vulnerable to the problem of ineffective and unscrupulous counsel, and as Reference ShannonShannon (2009: 622) notes, the exploitation of immigrants is “merely a symptom…of the larger problem of inadequate access to competent legal counsel by foreign nationals.” Reference BarnesBarnes (2003) argues that the most basic issue here is trustworthiness; immigrants are simply in a terrible position to evaluate the claims made by lawyers and are often naïve about what lawyers can and cannot do for them. The stakes are high in immigration proceedings and deportation can be a consequence of inadequate counsel. The U.S. Supreme Court itself has observed this, noting that “deportation is a drastic measure and at times the equivalent of banishment and exile” (as cited in Reference McKeown, McLeod, Ramij-Nogales, Schoenholtz and SchrageMcKeown and McLeod 2009: 289). The stakes in asylum cases are even higher.

Competent counsel provides benefits. Reference McKeown, McLeod, Ramij-Nogales, Schoenholtz and SchrageMcKeown and McLeod (2009: 289-90) argue skilled advice may divert noncitizens from the court system into other alternatives and that “once the noncitizens are in the system, it is easier for IJs and administrative or judicial staff to deal with representatives who understand the procedural intricacies and substantive complexities of the system.” Furthermore, they argue that “just outcomes are more likely as well when effective counsel is present, because the facts necessary to a fair determination of the case will be developed, presented, and tested in light of the relevant law (289-90);” whereas, those without representation or with an ineffective attorney may be unaware of how to impart even the most fundamental information (290).

Despite evidence of counsel's effect on asylum grants, merely having legal counsel does not guarantee effective legal advice. Reference McKeown, McLeod, Ramij-Nogales, Schoenholtz and SchrageMcKeown and McLeod (2009: 289) argue, “beyond the significance of the presence of legal counsel, the quality of representation in immigration litigation is of vital consequences” and once controlled for, “the differential outcomes associated with the presence of effective counsel are likely to be even more pronounced.” They conclude that ineffective counsel is worse than not having an attorney. Moreover, they posit “efforts to improve the fairness and consistency of immigration adjudication must focus on improving the quality of immigration counsel, not simply the availability of counsel alone” (288). However, no empirical study that we are aware of has examined the effect of the capability of counsel in these types of cases. We turn next to party capability literature and draw on its various approaches to inform our theoretical understanding and empirical examination of lawyer capability in asylum cases.

Party (Lawyer) Capability Theory

A substantial body of literature has documented and explored the implications of the stratification of the U.S. legal system over the last thirty years, both in the terms of the parties in litigation, and subsequently in terms of legal counsel. The exploration began with the seminal work of Mark Galanter in 1974, in which he delineated a dichotomous typology of parties—one-shotters and repeat players—who vary in their resources, goals, and the strategies with which they play the litigation game. One-shotters are “claimants who only have occasional recourse to the courts” and repeat-players are those “who are engaged in many similar litigations over time” (97). Thus, a spouse in a divorce case is a one-shotter, and the federal and state governments, as well as large corporations, which are likely to find themselves in court repeatedly over time, are repeat-players. Galanter also distinguishes between “haves” and “have-nots.” The two dichotomies differ in their focus. The repeat-player/one-shotter distinction focuses on the abilities of the types of parties before the court to shape the law in their favor over the long term and to gain both substantive and procedural knowledge of the courts in which they appear. Generally speaking repeat-players and the “haves” enjoy a multitude of advantages, which contribute to empirically demonstrated greater probability of winning they enjoy over “have-nots” and “one-shotters” (see Reference GalanterGalanter 1974; Reference Wheeler, Cartwright, Kagan and FriedmanWheeler et al. 1987; Reference Haire, Lindquist and HartleyHaire et al. 1999). The federal government consistently enjoys such advantages; whereas, the typical asylum applicant does not.

While Galanter's focus was largely on the parties to the litigation, we follow Reference McGuireMcGuire (1995) who argued that attorneys are themselves repeat players, and who thus shifted the focus in the literature from party capability more specifically to lawyer capability and its effect on the likelihood of winning in litigation. We believe that at the level of legal counsel, the government counsel remains the “upper dog” or “have” relative to the asylum seeker's legal counsel. While we know there is some variation in capability of government counsel in immigration court, Reference Posner and YoonPosner and Yoon's (2011) survey of federal judges demonstrated the disparity in quality of counsel between government attorneys and immigration attorneys was the largest of any of area of law. Thus, in asylum hearings the haves and have-nots are likely held constant, and we turn our attention instead to the potentially more important variation in legal capability that may enhance the ability of the “have-not” asylum seeker to level the playing field in litigation with the “have” government. Party or lawyer capability theory is an important starting point, but when we examine the institutional context of asylum decision making some of the theoretical assumptions no longer hold or are weakened considerably. This is because the party/lawyer capability literature has primarily focused on appellate judges with a general jurisdiction who lack specialized expertise in any specific area of law and hear comparatively few cases. This article represents a significant application and test of the party capability theory at the trial level.

Two broad characteristics of attorney capability emerge from the literature—expertise and experience. Reference KritzerKritzer (1998) delineates these characteristics along two dimensions of expertise—substantive expertise and process expertise.Footnote ³ Substantive expertise is conceptualized as specialization in a substantive area law, such as immigration law. Substantive expertise is argued to be of value in areas of law in which the judges may not be as well informed, especially judges on courts with general jurisdiction (Reference MauroMauro 2000; Reference RehnquistRehnquist 2002; Reference Szmer, Johnson and SarverSzmer, Johnson, and Sarver 2007). Expert attorneys are more likely than generalists to possess superior understanding of the intricacies of the law, and are likely “more skillful in framing the issues and fact patterns in accordance with relevant precedent” (Reference Haire, Lindquist and HartleyHaire et al. 1999). Experience has been demonstrated to matter in two ways (1) the attorney is able to build a reputation for veracity over time and concomitantly develop trust among the judicial actors (Reference McGuireMcGuire 1995; Reference KritzerKritzer 1998; Reference Haire, Lindquist and HartleyHaire et al. 1999; Reference Szmer, Johnson and SarverSzmer et al. 2007) and (2) the attorney is able to develop a familiarity with the judges' ideological proclivities that allows him or her to tailor arguments for the specific judges before whom they practice (Reference KritzerKritzer 1998; Reference Haire, Lindquist and HartleyHaire et al. 1999; Reference MauroMauro 2000).

We have somewhat mixed expectations about how judicial specialization may affect the operation of attorney capability. On one hand, we know that asylum cases can be quite complex. We expect that immigration specialist attorneys are better than a nonspecialist in representing an asylum seeker. For instance, a specialist might be better able to establish core components of the case, such as the credibility of their client's testimony with respect to the potential for persecution on return to a sending country. An immigration specialist might be more capable of making a new and nuanced application of emerging jurisprudence, such as that around domestic violence or female genital mutilation. Or such a specialist may be more aware of the complications of authenticating critical documents, which is a time-consuming process that is required for documents from some countries but not for others, depending on the country's treaty status with the U.S. and other factors.

We also know that IJs most often come to the bench lacking substantive expertise in immigration law. Until recently, the qualifications set by the attorney general only required that the candidates have 7 years of prior legal experience and, although recent reforms now require that new IJs pass a written examination demonstrating familiarity with immigration law, scholars report that the exams are a very low threshold in terms of substance and process (TRAC Immigration 2009). Thus, it remains likely that IJs come to the bench lacking specialized knowledge of immigration law. On the other hand, we expect that given their caseload, IJs—who typically decide more than a thousand cases a year—would quickly become substantive experts in their field, and would not be as reliant on the expertise of attorneys practicing before them. Thus, our expectations in regard to substantive expertise are mixed. However, our exploration has to take into account one other factor—the lack of substantive weight in claiming to specialize in immigration law. If substantive expertise matters in asylum cases, it will matter less than has been typical in the attorney capability literature, and the effect could even be negative given the possibility that unscrupulous lawyers may take advantage of the easy claim and the vulnerability of asylum seekers. Thus, any beneficial effect is likely a wash, with the possible exception of the four states with certification. Therefore, we derive the following hypothesis:

We believe that the core dimension of capability for attorneys practicing in asylum cases is most likely to be experience, although we conceptualize experience differently than the capability literature. In the context of asylum hearings, we argue that immigration attorneys would have the same underlying need to establish a personal reputation of reliability, especially in the smaller and mid-sized immigration courts in which attorneys are recognizable as frequent litigators. The role of reliable, credible information from trusted repeat players is especially valuable in the asylum decision making process where credibility determinations are extremely difficult to make because, as Reference MartinMartin (2000) observes, the “basic facts in any particular [asylum] case are highly elusive” and “the adjudicator has to decide what happened in a distant country” with only two imperfect sources general human rights country reports and the personal testimony of the asylum seeker. Moreover, Reference AlexanderAlexander (2006: 19) suggests that immigration courts routinely lack evidence as “the witnesses, objects, and documents that could prove or disprove a fear of persecution, for example, are likely beyond reach oversees” and “indeed, the ability to gather evidence may be blocked by the very government alleged to be the persecutor.” Therefore, we have the following hypothesis:

In the lawyer capability literature the experience of a repeat player attorney is typically conceptualized as the number of previous cases before a tribunal (e.g., Reference McGuireMcGuire 1995; Reference McAtee and McGuireMcAtee and McGuire 2007). Typically this measure is transformed in some way to account for the fact that there might be diminishing returns to experience—beyond having a few cases under your belt each additional case should teach you little. Again, because this literature has focused on appellate courts (but see, e.g., Reference Abrams and YoonAbrams and Yoon 2007), there has been little concern with the institutional context of trial attorneys, such as attorney workload, which might actually reduce the capability of the attorney. This is especially important in immigration law because attorneys do not work on contingency fees and case billings are relatively small. The incentive to take on a large number of cases is greater, and thus some attorneys may take more cases than they are capable of handling competently, especially given the difficulty of filing ineffective counsel claims. Thus, workload becomes a mitigating influence and leads us to the following additional hypothesis:

An additional factor in immigration cases makes the literature's conceptualization of experience as prior number of cases problematic in our study. We know that bad immigration attorneys tend to take and try lots of cases (Reference McKeown, McLeod, Ramij-Nogales, Schoenholtz and SchrageMcKeown and McLeod 2009). In fact, in a 1997–1998 study of New York immigration courts based on EOIR data and interviews with lawyers, judges and respondents, Reference MottinoMottino (2000: 38) provides evidence that some of the worst immigration lawyers were those with the highest caseloads. The author found that “classified among the very bad [lawyers] were high-volume, private-practice lawyers, many of whom appear to be associated with travel agencies, who have little or no contact with their clients” and who were “described as individuals who ‘do not prepare, do not know immigration law, and do not care.’” Furthermore, Mottino's study demonstrated that many respondents were targeted by these bad “low-cost, high volume” lawyers just as they walked into court. Thus, we believe this dimension of party capability would be better conceptualized as prior attorney success in asylum cases rather than mere experience. As the attorney presents and wins cases before a particular immigration court his or her reputation grows, as does the perception of credibility and reliability in regard to the information the attorney is presenting in the hearing. This benefit should play out particularly strongly in asylum hearings where reliable information and the credibility of the parties are critical and yet illusive components of a case. Successful attorneys may also develop a reputation for taking particularly meritorious cases. The opposite would hold for attorneys who repeatedly bring cases to the court and lose. Thus, we derive the following hypothesis:

We argue that this effect may apply even more in regard to prior success before a particular immigration judge, as the exposure and concomitantly enhanced reputation would be specific to the individual judge. In addition to the benefits detailed above, we would also expect, as did Kritzer, that the attorneys would have an increasingly better sense of the particular immigration judge's proclivities and better developed judge-specific strategies. Higginbotham (1988), a federal court of appeals judge, argued that in the small percentage of cases in which the outcome is unclear, determinations may be influenced by judicial attitudes. Therefore, an attorney who has acquired “the necessary sensitivity to [to individual judges' attitudes] through episodic adventures” into the court can influence the case holding (182-83, as cited in Reference Haire, Lindquist and HartleyHaire et al, 1999: 672). Thus we derive our fifth hypothesis:

Resources

We also believe that there are additional resources that may enhance attorney capability. First, attorneys who work for NGOs have available to them resources that private practice attorneys do not, such as a larger staff, funds to hire expert witnesses, and more time to go through more extensive document authentication, for example. In addition, most NGOs are likely to have more than one attorney and would likely employ pro bono assistance, as well, thus potentially reducing the workload effect. Finally, in-house counsel within an NGO would likely benefit from the reputation of the NGO and its success in immigration court. In an earlier analysis of a Texas human rights NGO, the non-profit's overall success rate of 80% was considerably higher than average Dallas immigration court grant rates of 22% to 45% (Reference Keith and HolmesKeith and Holmes 2009). This is similar to Reference MottinoMottino's (2000: 23) impression of NGOs in New York immigration courts “there is general agreement throughout the immigration community that non-profit agencies not only provide high-quality representation but also work effectively with judges, INS attorneys, and other legal professionals.”Footnote ⁴

One might also expect that some of the same benefits would accrue to an attorney who works for a law firm, particularly in regard to resources. Other expectations seem to mitigate such a relationship. For example, workload may be an issue for these attorneys as the firm is likely to have expectations in regard to billings. Reference Palmer, Yale-Loehr and CroninPalmer et al. (2005) found that 10 law firms had almost 35% of the petitions for review before the Second Circuit and the top 20 law firms represented almost 47% of the petitions. Each of these offices had more than 100 cases pending. It is possible that attorneys may benefit from the reputation of the firm as well, although we expect the effect would be less than with an NGO, and it may be that the reputation is negative rather than positive because some firms may attempt to maximize revenue by taking a large number of cases without giving any particular case much attention.

Finally, we believe that attorneys with elite law school education may be more capable attorneys due to the quality of their education and/or they may have the advantage of an enhanced reputation because of the prestige of their law school. We therefore have the following supplemental hypotheses:

Research Design

Attorney Capability Model

Dependent Variable

Our dependent variable is the case outcome. Following most of the asylum literature, we code outcomes as one in cases in which the judge makes a grant of asylum, a conditional grant, or some other form of relief. Denial of any form of relief is coded as zero.Footnote ⁵ Because our dependent variable is dichotomous we utilize a probit link function in the following regression. Only cases decided on the merits are included. Our dataset of US asylum cases from 1990 to 2010 was built after numerous FOIA requests to the EOIR and United States Citizen and Immigration Services. Table 1 includes the descriptive statistics for all of our variables.

Table 1. Descriptive Statistics

Attorney Level Variables

We randomly selected three samples of 500 attorneys, and after eliminating duplications and those attorneys about whom we could not find information, we had a final sample of 1,234 coded attorneys and law firms who participated in 197,704 asylum cases between 1990 and 2010.Footnote ⁶ From the data, we created attorney specific measures of the number of cases per year, logged total cases, overall past success, and judge-specific past success, which constitute our key independent variables.Footnote ⁷ Cases per year is just a count of the number of cases an attorney tried in the previous 12 months and logged total cases are the natural log of the total number of cases the attorney has tried in previous years. Overall past success is a running tally of the win rate for an attorney. Put differently, it is a measure of the number of cases won by the attorney divided by the total number of cases tried, excluding the present case from both the denominator and numerator. The measure includes only those cases occurring before the present case in the data. Judge-specific past success counts only the previous win rate for a specific attorney-IJ dyad. The mean success rate for attorneys overall is 29% and it is 23% for the IJ-specific measure.

To code attorney demographic information, we relied on the Martindale attorney profiles (martindale.com) as well as information provided by state bar associations. These sources provide demographic information including year admitted to bar, gender (1 for woman and 0 for man or unknown), whether the attorney belongs to a law firm (1 if yes, 0 otherwise), whether the attorney is an immigration specialist (1 if the specialty is listed and 0 if not), and whether the attorney belongs to an NGO such as Lutheran Family Services, Human Rights Initiative, or Catholic Charities (1 for yes, 0 for no). We also used the Martindale profiles and state bar profiles to identify law school attended. From that, we identified elite law schools if the lawyer graduated from a school listed among the top 10 law schools in the current U.S. News rankings (Yale, Harvard, Stanford, Columbia, Chicago, NYU, Penn, Virginia, UC-Berkeley, and Michigan). To measure if he or she had been disciplined professionally, we first tried to identify whether or not the attorney had been disciplined by their state bar. However, since state bars do not consistently report discipline, to create a consistent measure of discipline, we have relied on the Department of Justice's suspension list provided by the EOIR http//www.justice.gov/eoir/discipline.htm (1 if discipline, 0 if not), which we term EOIR discipline.Footnote ⁸ Table 2 below provides descriptive information for each of these included variables as well as those we discuss below.

Table 2. Probit Regression

Bolded coefficients are significant at p < 0.05 (two-tailed). Standard errors clustered by judge.

Analyses

Table 2 presents our attorney capability model. Our model fits the data quite well with a 45% reduction in error and area under the Receiver Operating Curve of 0.86. Our first hypothesis is supported. Obtaining an attorney that specializes in immigration does not improve the probability of a successful outcome, even when we narrow the measure to whether the attorney has been certified in Texas, California, Florida or North Carolina. Thus, asylum cases represent a significant departure from the attorney capability literature, but as we discussed above the difference is likely due to the easy ability of any lawyer to claim expertise without any substance to back up the claim. Contrary to our expectations embodied in hypothesis 2, increasing attorney experience does not improve the applicant's chances of securing relief, indeed increased experience appears to reduce the likelihood of victory. Moving across the range of experience, the most experienced attorney is actually 12 percentage points less likely to garner relief for an applicant than is an inexperienced attorney. Recall that we control for past success independent of experience (our fourth and fifth hypotheses), and it could be that previous experience is, in itself, simply not valuable in asylum hearings or that total experience simply captures a year-to-year pattern of taking a great number of cases (the correlation between the two measures is 0.74). Second, these results also reflect the fact that many one-off attorneys in our data, those who try only one asylum case, are likely pro-bono attorneys who primarily work in other areas of law. Often, these pro-bono attorneys work with established projects or organizations that “provide all necessary legal forms, a copy of the initial intake interview, pertinent human rights reports, access to volunteer translators and direction to other resources” (Reference Schoenholtz and JonathanSchoenholtz and Jacobs 2002: 755). The results for the experience variable suggest that, ceterus peribus, these pro bono attorneys are better than more experienced immigration attorneys. This finding has important implications for suggested reforms, which we discuss below. In regard to our third hypothesis, which posited that attorney caseload was likely a mitigating factor to experience, we do find strong support of this expectation. As the case load of an immigration attorney increases, the likelihood of securing relief for any given client decreases—across the range of our per year case measure the decrease is 17 percentage points. This finding reflects an incentive structure that likely increases the potential of ineffective counsel and unscrupulous practices.

For our fourth and fifth hypotheses, we include two separate measures of past success. The first is our general measure of past success that is simply a running tally of the overall win rate for an attorney before all IJs as of the date of the current hearing. Our second measure is the IJ-specific measure of past success that is a running tally of the win rate for a specific attorney before a specific IJ. Both measures are statistically and substantively significant.Footnote ¹¹ The overall success rates for attorneys is positive and, moving across the range of the data, reflects that an attorney with a previously perfect record is 18 percentage points more likely to prevail in a given case than an attorney with no previous wins. More significantly, the IJ-specific measure reflects an enormous difference based on lawyer capability—again moving across the range of the data, an attorney that has previously won every case before a specific IJ is 64 percentage points more likely to prevail in a given case than an attorney who has never won before a particular IJ.Footnote ¹²

To illustrate the importance of IJ-specific attorney quality, we provide Figure 1 below, which compares four different representation scenarios for an applicant across levels of human rights repression in the sending country. Holding all of the other variables in our model constant, we simulated the likelihood of receiving relief if an applicant was represented by no attorney (predicted probabilities for this scenario come from a model in which we estimated the generic effects of being represented at all), a poor attorney (defined as one who has won only 4% of previous cases before a given IJ (the 10th percentile in the data)), an average attorney (one who has won 24% of their previous cases before a given IJ (the 50th percentile in the data)), and a good attorney (one who has won 60% of their previous cases before a given IJ (the 90th percentile in the data)). In Figure 1, the gray lines represent 95% confidence intervals. The results are striking. Being unrepresented (solid line, circle markers) appears to make one more likely to receive relief than being represented by a poor attorney (dashed line, triangle markers). Average attorneys (dash-dot line, square markers) are considerably better than no representation. Across the categories of human rights repression, the average attorney is about 9 percentage points better than no attorney. What most stands out in the figure is the extent to which good attorneys (dash two-dot line, x markers) help their clients. A good immigration attorney, as defined above, is on average 32 percentage points better than an average one and about 40 percentage points better than no representation. Put differently, in cases associated with all levels of human rights repression a good attorney is more likely than not to win relief for a client, something that is never true of even the average attorney. This clearly demonstrates Galanter's argument that high quality legal counsel can mitigate the advantages of repeat player/have litigants. Another startling finding is that having no attorney is consistently more beneficial than having a low quality attorney.Footnote ¹³ This finding has serious policy implications in regard to proposed reforms concerning representation for all asylum seekers, which we discuss more in the section below.

Another way of thinking about the quality of attorneys is to compare the two measures of past success, in an attempt to determine how an overall reputation for success matters with respect to arguments before a specific IJ. This comparison is revealing to the extent that it shows that a large part of the success for quality attorneys is being able to target arguments to specific audiences—here to play to or mitigate the ideological proclivities of IJs, which have been shown to be significant predictors of an IJ's decision to grant or deny relief (Reference Miller, Keith and HolmesMiller et al. 2014b; Reference Keith, Holmes and MillerKeith et al. 2013). Figure 2 below displays the effect of IJ-specific success versus overall success. The effect of overall success is fairly muted and works to shift the intercept, but not alter the slope, for attorneys who are arguing before a specific IJ. In essence, the figure suggests that a large component of attorney success is found in being able to tailor an argument to a specific IJ, perhaps knowing and playing on their proclivities. This finding strongly parallels Kritzer's arguments about so-called process expertise, but the key distinction in our analysis is that in immigration court it is not just mere experience before a judge, but rather having past experience in winning cases before a judge.

Of the other measures of lawyer capability, only practicing for an NGO is a significant predictor of the likelihood of relief. Those who work on behalf of NGOs, at least those whom we can identify, are about 5 percentage points more likely to succeed than those who do not work within NGOs. While we had formally hypothesized that some additional benefits, such as reputation or resources, might adhere to attorneys working in a law firm, we tempered this expectation with the understanding that the typical billings-driven workload might mitigate the effect of additional resources. Our null finding for this hypothesis suggests a wash between the benefits and the limitations of law firm practice. Graduating from an elite law school is not statistically significant in regard to asylum cases, although this may be a function of relatively low numbers of these attorneys in our sample. Two other attorney-specific control variables are also of interest. The variable capturing EOIR discipline does not achieve statistical significance, which is surprising since it is a direct negative indicator of attorney capability. Partially this is because a number of attorneys disciplined by EOIR are disbarred from practice and therefore drop out of the sample subsequent to being disciplined. Finally, attorney gender is not a statistically significant for this set of cases.

Another way to understand the importance of the specific relationship between attorney and IJ is to look anecdotally at those relationships. To do this, we randomly selected four attorneys from the data, one with more than 1,000 appearances, one with more than 500 appearances, one with over 100 appearances, and one with more than 25 appearances. We then coded all of the success rates for these attorneys with any IJ before whom they had more than 10 appearances—our cut-off at 10 decisions is random and meant to ensure that each cell in the analysis that follows allows for meaningful comparisons. Figure 3 below displays the results of this exercise, with hollow diamonds representing the overall mean for an attorney and filled circles representing IJ-specific averages.

Figure 1. IJ-Specific Success and Levels of State Repression.

Figure 2. Relationship between Overall an IJ-Specific Past Success.

Figure 3. Attorney-IJ Dyadic Relationships.

The overall take-away from the above figure is that there is a good deal of variation in rates of success for all of the attorneys. For instance, our attorney with 1,000+ appearances, who has an average win rate overall of 0.72 wins less than 0.45 of the time before five IJs. Similarly, our attorney with 100+ appearances has an overall success rate of 0.56, yet with one IJ he or she has a success rate over 0.80. There is no tight clustering around overall averages for any of the attorneys, with wide variation apparent in the figure across IJs for any given attorney. All of this suggests that there is a great deal of nuance in the relationships between attorneys and IJs, a relationship that is perhaps enhanced by the harried nature of asylum decision making: IJs are left to rely heavily on the ability of attorneys to develop cases, given their extreme workloads.

Discussion

The adjudication of asylum claims presents a unique opportunity to understand a theoretically important question: how much does good legal advocacy matter in otherwise asymmetrical contests between litigants? Here, we find that high quality advocacy is an important predictor of whether asylum applicants, who are otherwise at fairly severe disadvantages vis-à-vis the government, have a decent chance at securing relief. However, the extent to which representation can alter the balance between “haves” and “have-nots” is mitigated by our concomitant finding that low quality representation actually makes an applicant worse off than if they precede pro se. This finding has important implications for policy reforms that call for greatly increased access to counsel for asylum applicants. Unless capable attorneys are likely to participate in the expansion of the system, the effects of such an expansion are unlikely to do much to even the odds of asylum applicants opposed in court by what one scholar of these power disparities referred to as the ultimate government gorilla—the federal government (Reference Kritzer, Kritzer and SilbeyKritzer 2003). Our research indicates that the average attorney is only somewhat better than no representation at all—on average the difference between the two is about 9 percentage points. This 9 percentage point difference is only likely to hold if the additional lawyers brought into the system are at least average. However, at the same time, our finding that attorneys who try just one case in our dataset do quite well, all else considered, indicates that increased pro bono efforts from the bar may be able to do a good deal to even the typically large gap between the government and applicants. This analysis also highlights the positive impact of NGOs on the likelihood of receiving a grant, which suggests that reform efforts to increase representation are more likely to succeed if they are coordinated with (or modeled on) existing asylum related NGOs and pro-bono programs.

Part of the contribution our article makes is the extension of the party/lawyer capability theory beyond the appellate context to a quasi-trial setting in which the outcomes can have dire consequences for the litigant and raise substantive issues of consistency and fairness. We are able to test and identify a particular set of indicators of lawyer quality specifically associated with attorneys practicing in asylum cases, and concomitantly we are able to identify a potential mechanism through which lawyer capability plays out. We recognize that the context of asylum decision-making may be somewhat limited in its generalizability to federal or state trial courts given the heavy caseload IJs face, the vagueness of asylum law, and the indeterminate facts; however, we believe that the context is more generalizable to other specialized courts, such as tax courts, bankruptcy courts, social security hearings and, perhaps, limited jurisdiction state courts. It may even be that our approach is useful in understanding the effectiveness of public defenders that are in an analogous situation (Reference Abrams and YoonAbrams and Yoon 2007).

The dyadic relationship between an immigration attorney and an IJ offers potential new insight into asylum decision making. We know from our previous work that IJs, under tremendous time-pressure and unsure of the credibility of an asylum seeker, will consider some pieces of information, such as human rights conditions, objectively while other information, such as national interests, is treated subjectively by the IJs. This subjective treatment means that IJ policy preferences matter more in the consideration of, say, national interest than they do for human rights conditions (Reference Keith, Holmes and MillerKeith et al. 2013; Miller et al. Reference Miller, Keith and Holmes2014b). It may be that the immigration attorney who has a pattern of past success before a specific judge is able to aid the harried IJ in sifting through the various informational cues, adding gravitas to claims of credibility that are typically difficult to assess. An important normative question would be whether within this pair, the attorney is able to shift the IJ into a more subjective assessment where her policy predispositions come into play, or conversely into a more objective assessment in which the law plays a stronger role. Thus, such relationships could potentially intensify the randomness of grants of asylum due to the draw of a particular IJ, and amplify concerns about consistency and fairness. In any case, we have shown that it is the quality of representation that is more important than simply being represented in the trial court-like setting in which U.S. asylum claims are determined.