Abstract

Excerpted From: Douglas Smith, Impacted Communities Leading Authentic Legal Mobilization: A Refugee-led Access-to-justice Story, 36 Journal of Civil Rights & Economic Development 291 (Fall, 2022) (312 Footnotes) (Full Document)

I have a modest proposal to begin addressing the civil access-to-justice problem in the United States: eliminate the barriers for refugees to provide legal representation. In discussions of access to civil justice, immigration and immigrant rights compel our attention--images of children as young as three facing deportation without representation and non-citizens detained because of civil immigration infractions come to mind. But we hear less about the access-to-justice challenges of immigrants fighting for their rights to safe housing, public benefits, education for their children, or often-contingent or under-the-table jobs. The cries of immigrant communities about informal and formal threats from immigration enforcement--and harassment and exploitation beyond the formal legal system--are rarely treated as civil access-to-justice problems.

All of us who work with immigrants are forced to turn down most very needy potential immigration clients, despite knowing that there is nowhere else for them to go. To fill in the gaps, many hold meetings, conduct know-your-rights or organizing sessions, or try to write about complex immigration law issues in ways that people can understand--all of which make us feel better because we think it might do some good or narrow the breach in our unkept promise of fairness, due process of law, or the dignity of human possibility.

All of us who do this work also meet people every day who have been refugees, are seeking asylum, or have otherwise encountered the immigration system--and who, given the chance and a little training, could do at least as well as immigration and human rights attorneys. In my more honest moments, I admit that they likely would do my job much better than I can. They might find ways to do that work differently, and my generation of immigration advocates must admit that, however much we tried to change the immigration system for the better, we failed. We were not prepared nor fit for the challenges of the Trump and Biden administrations. And even if we had, there will never be enough lawyers to satisfy immigrant communities' needs, even if every lawyer had the knowledge, attitude, and commitment to do so--and fat chance of that.

Few of the people we work with are or will become licensed members of the bar, but some were doctors, lawyers, journalists, mothers, fathers, and students in the countries they fled from. Despite their credentials, many of them now work at what they perceive as menial jobs if they can find jobs at all. All are activists in some sense, with deeply resonant political voices. What if we provided them with the tools to take on immigration and human rights advocacy roles? What would be the effects on meeting unmet needs? On the legal decision-makers who interacted with refugees taking on lawyering roles? On immigration law? On the activism, political efficacy, perceived legitimacy, and power of the newly law-trained refugees themselves? On the communities in which they already hold places of leadership and trust? If refugees were armed with training in law, opportunities in reflective legal practice, and the legitimacy that legal advocacy roles confer, could they find ways to dissemble the entrenched power hierarchies that construct access-to-justice problems in the first place? If immigrant communities were asked to prioritize limited legal resources, do you think they would exclusively devote those resources to hiring more lawyers in lawyer-run civil justice systems? The late Deborah Rhode implored that “[w]hat Americans want is more justice, not necessarily more lawyering.” Given a say, would communities of forced migrants choose to blow scarce societal resources on the monopoly rents of elite lawyers for a few?

If justice is about people reclaiming their share of power over their futures, notwithstanding opposition from the bar, what ways of enacting their vision of justice might immigrant communities choose? Perhaps that vision might not turn over civil disputes to the same elite decision-makers or court systems that have let them down. Maybe they would choose to have disputes resolved in their own voices, without the elitist intermediation of the individualization, alienation, transposition, jargon, and distorted lens of law. In the forums in which civil justice might be enacted, few situations put these questions into such stark relief as immigration and immigrant rights.

Rebecca Sandefur contends that access to justice is a problem created by lawyers to secure their elite status and claims to esoteric knowledge to justify their monopoly rents: “[t]he access to justice crisis is bigger than law and lawyers. It is a crisis of exclusion and inequality .... Justice is about just resolution [of shared challenges,] not legal services .... Solutions to the access-to-justice crisis require a new understanding of the problem.” Rather than thinking in terms of unmet legal needs, Sandefur cautions, “we have the option of formulating the access-to-justice crisis as being about, well, access to justice.”

This article describes an ongoing experiment in authentic lawyering, which I define as legal advocacy by impacted people while they are impacted, by re-telling the relatively disintermediated stories of similarly subjugated people and groups in and out of courts. The Right to Immigration Institute (“TRII”) follows this model. It is a small movement law shop run by forced migrants who are trained as Department of Justice-accredited Immigration Representatives who represent asylum seekers in immigration proceedings and community action efforts in human rights matters. TRII took on immigration and human rights law, particularly asylum and humanitarian immigration benefits, with an access-to-justice mission: to break lawyers' access-to-justice cartel to provide free, high-quality representation. Employing the law school clinic model allows us to train and work alongside nonlawyer advocates who teach semi-retired volunteer lawyers the stock stories and moral imperatives that construct immigrant communities and their activism in the U.S. and the countries from which they fled as refugees.

Since 1958, Accredited Representatives (“ARs”) have been formally authorized to represent poor immigrants on behalf of recognized organizations. In its present iteration, over 2,000 ARs are now working in non-profit and faith-based organizations representing clients on complex immigration matters. ARs are formally recognized as part of the Department of Justice's (“DoJ”) Recognition and Accreditation (“R&A”) program, which has been housed within DoJ's Executive Office of Immigration Review's (“EOIR”) Office of Legal Access Programs (“OLAP”) since 2017. ARs working for Recognized Organizations (“ROs”) are not lawyers, but they are able, with what is called “partial accreditation,” to represent clients before United States Citizenship and Immigration Services (“USCIS”), including appearing as counsel in USCIS immigration proceedings, filing papers in their names, and advocating for clients at USCIS interviews and hearings.

“Full” accreditation authorizes ARs to conduct full trials in immigration court and to act as appellate advocates before the Board of Immigration Appeals (“BIA” Full accreditation requires training in trial and appellate practice and immigration court procedures. Experience at TRII has found that OLAP seeks significant practice experience--typically, partial accreditation applicants have demonstrated a minimum of 100 hours of client-coupled work with trial observation and participation. Participation typically includes immigration court observations, trial preparation, and second-chairing trials which allow the benefit of outsider perceptions and allow for reflection on conscious and implicit choices made during preparation for trial and subsequent appeals.

In the words of immigration and human rights professor Erin Corcoran, “licensed attorneys are not necessarily more qualified to represent noncitizens than [EOIR] accredited representation.” Nor is there any reason to suspect that the public is disadvantaged in gauging the quality of services provided by an AR. Having a law school degree and passing a paper test does not give the public greater assurance of quality than accreditation and supervision within a DoJ-recognized non-profit organization. And one can argue that AR community-based representation will be better than representation using attorneys.

ARs' training differs from that of prospective lawyers. “Demographically, the R&A program looks a lot different than the legal profession:” three-fourths of ARs are women and “many, if not most ... appear ....” to come from immigrant communities or worked in allied advocacy groups. To become an AR with an RO, applicants must demonstrate “broad knowledge and adequate experience in immigration law and procedure.” Many take an online course, such as that offered by Catholic Charities' CLINIC program or the Immigration Advocacy Network. Many others self-educate through on-the-job training, but all are required to have experience working with immigrants in the immigration law settings in which they will practice--far more than what is required of lawyers.

ARs's approach to legal work also differs from the average prospective lawyer. Jamie Longazel finds that ARs, as opposed to lawyers, are “decidedly anti-formalist;” and are more holistic, informal, and empathetic in their relationship with clients than lawyers. ARs also take the time to create relationships with clients and educate them in ways traditionally ignored by lawyers. Lawyers can understand the meaning of the stories that sustain communities in their struggle, but advocates with one foot in the same struggle as their clients have a leg up.

While TRII has taken on the issue of scarce justice in immigration law, this area of law has largely assumed the mantle as a poster child for civil Gideon. It is not unwarranted. First, immigration law is complex and complicated. Immigration has been compared to the tax law as the two most complex areas of federal law. Immigration, like tax, has many moving parts and is the result of a jury-rigged system of laws that has grown by accretion upon already shaky foundations, rather than through wholesale policy reform. Immigration adds sources of law from many different agencies and international sources, differing personalities, and still-untouched philosophical quandaries at the heart of national and nativist boundaries and how resources are doled out between in-group and out-group members. Second, the consequences of immigration are so dire that it seems absurd to leave indigent people unrepresented, especially those who are dispossed and face punishments that even the Supreme Court has deemed more severe than prison terms. Immigration is among the areas of administrative law in which lawyers' monopoly on access to justice is incomplete: non-lawyers can represent a migrant in proceedings, trials, and appeals. TRII's experience demonstrates that refugees and forced migrants can be trained to be at least as good at advocating a refugee's story as lawyers while exploring the adjacent possibility that refugees can authentically translate their stories to teach powerholders, the lawyers who work with them, asylum officers, and immigration judges about the lives and “stock stories” through which forced migrants see their worlds.

TRII is an access-to-justice experiment in immigration and human rights law. Immigration law largely abandons refugees and asylum seekers to face immigration systems without providing representation as a matter of right as in criminal law contexts. Could combining antiquated lawyers' generalizations and guided reflection upon experience with naïve observation, fresh faces, radical energy, and outsider thinking find better ways of working with forced migrants? After creating a non-profit corporation and applying for I.R.C. 501(c)(3) charitable corporation status, which are prerequisites for becoming a DoJ-recognized organization that could host DOJ-accredited immigration representatives--we recruited trainees from the community and began a 6-month apprenticeship course of experiential, reflective clinical education in asylum and humanitarian immigration law and practice. Reflective legal practice prepared trainees to learn from experience while it served as a constant reminder to me and other lawyers, organizers, and advocates that the reason we worked with TRII was to learn ways of practice that did not re-enact the status quo.

By immersing students in communities constructed by forced migrants in the shadow of law and public institutions, which provided the texts for learning authentic advocacy, TRII established a curriculum for learning law-in-action dynamics. They learned how migrant communities relate to emergent legalities, and they learn refugee law both as doctrine and as the product of the friction produced by the interaction of doctrines, roles, and personalities in spaces created by socio-legal institutions, which I shorthand as forums or congregations or legal/activist spaces.

Asylum law in the United States defines a refugee as an individual who is outside her country of origin and fears returning to that country because of past persecution or a well-founded fear of future persecution based on her race, religion, nationality, political opinion, or membership in a particular social group. Asylum remains one of the few opportunities for status and a viable road to a green card and citizenship for migrants who entered without status or lost status, have no family or employment prospects in the U.S., and are unlucky in the diversity lottery or are from a country whose nationals cannot participate. Filing for asylum takes long hours of research to document harm to the applicant and similarly situated individuals to flesh out a story that rings true to a decision maker, meets the elements of the refugee definition set out above, is detailed but consistent, and is similar enough to other accepted claims so that an asylum officer or immigration judge will deem the story credible.

Working with asylum seekers and forced migrants requires an inherently long and intense relationship with traumatized and (justly) skeptical individuals from diverse cultures and backgrounds. We figured that refugees from those communities, often speaking the same language, would quickly become as good at those efforts as most lawyers because of their cultural facility, legitimacy, trustworthiness, and commitment. With time, we expected that they would explore the uncertain and hostile problem space of human rights advocacy in 21st-century North America and find better means and narratives than the very best lawyers to advocate in and for their communities.

This is a story of a refugee-led community-based lay advocacy clinic in which forced migrants, a few volunteer lawyers, and organizers, combining their relative subversive potentials, created a laboratory in which to experiment with ways of working in and for impacted immigrant communities in an authentic voice, and ways to work with clients and communities that do not replicate the power relationships which led clients to seek TRII's help. It is also a story of how the tragic opportunities created by a worldwide pandemic provoked TRII towards a dimly envisioned model of resistance in communities largely constructed by legal constraints on migration in the age of COVID-19.

The remainder of this article is divided into five parts. Part I of this paper introduces TRII's experimental access to legal justice program, including the resistance it received from the professional immigrant advocacy bar, which raises the question of whether nonlawyers have anything to contribute to relieving the civil access-to-justice crisis. Part I responds to critiques TRII faced about law school being a necessary and sufficient condition for immigration practice. I first show that law school alone is insufficient preparation for immigration law practice, reviewing research showing that nonlawyers specializing in varied civil realms have performed equally well or better than lawyers in terms of efficacy. Part II explains the reasons behind TRII's initial expectations that adequately trained refugees and other forced migrants would be better asylum advocates than even the best lawyers.

Part III argues that authentic advocacy stands a better chance of realizing justice than traditional advocacy, or more recent movement lawyering models, partly because of inherent and acquired characteristics of lawyers: the limitations of lawyering roles arising out of how law school training and professional socialization limits perception of the scope and sources of social problems and what can be done about them. Part IV posits that authentic advocates will leverage their identities as leaders in impacted communities to bend the contours of the “ambient carceral state:” the threats, rumor mills, discourse, and private violence that form key components of the policy platform that subjugates immigrant communities and forces them into what one recent Presidential candidate called, “self-deportation.” Finally, Part V concludes with an assessment of TRII's work so far and introduces intriguing evidence from authentic advocacy outside of the United States indicating authentic advocacy's potential impact on justice.

[. . .]

I insisted others produce evidence that nonlawyers could never learn immigration practice; but where is the evidence that such a refugee-led legal advocacy clinic has a shot at creating real, durable progressive social change? There are intriguing, if not yet robust, indications that it might work. I take it as a given that small but significant change in the structures of what is described above as the ambient carceral state is inevitable. There is considerable anecdotal evidence that legally-informed and resistance-ready community leadership can affect the ambient carceral state.

The results of the TRII experiment in immigrant-led legal advocacy are not yet in, but a preliminary examination supports the possibility of authentic advocacy becoming an innovation in social change. We are already hearing back from community members who have learned of rights and remedies from TRII trainees in their community who want to take part and hear more about community-based resistance and individual claims to immigration benefits and their rights as individuals. I have witnessed refugee advocates in action and compare their work very favorably to the law students, experienced lawyers, graduate students, and elite university students with whom I have worked in terms of accountability, access to services, witnessing, perceptions of empowerment, and community mobilization as operationalized in reports from community organizers and our mutual evaluation using TRII's competencies assessment tool. In terms of revealed political consciousness, eagerness to learn from evidence-based advocacy, and commitment to the cause of tearing down the ambient carceral state, it is no contest. In terms of gross “win rates,” we have had a few cases reach a full resolution. Cases that refugee advocates have worked on have resulted in relief at rates similar to those reported by pro bono law firms and law school clinics, which take far fewer cases and tend to rigidly select those already deemed winnable. TRII does not gain the benefit of selection effects described above: to preserve resources and keep the peace in immigration advocacy circles, we try to take cases already rejected by other providers, unless prospective clients refuse referrals or legal deadlines, or individual pressures' time is too tight. And the legal forums in which TRII practices are among the least favorable in the United States.

There are also intriguing hints from the worldwide legal empowerment movement. The legal empowerment movement seeks to foster community solidarity through legal advocacy led by impacted groups who are not, and often can never be, lawyers. Community paralegals are impacted community members trained in law and social change who are not lawyers but remain in their communities to foster indigenous legal empowerment. Community-based paralegals do not assist lawyers but work directly with the communities they serve. Empowered community paralegals effectively change the institutional fabric of law, especially where they work not just for the poor but with other marginalized groups. And in a broader sense, research shows that nonlawyers can be at least as effective as lawyers in meeting clients' goals. Community paralegals around the world, like the nonlawyer advocates discussed above who have been studied in the United States and the U.K., do not just provide access to discrete legal remedies in courts--they promote active organizing outside the judicial system.

Vivek Maru and Laura Goodwin found that clients receiving services from community paralegals often experience a positive change in their perception of agency. “Nearly ninety studies find positive impacts of legal empowerment programs on institutions--changes in law, policy or practice at various levels of administration.” Legal empowerment programs are defined by the direct capacity of citizens to exercise their rights without the need for elite expert services engage a wider range of societal institutions in problem-solving and are not narrowly focused on judicial remedies. The authors found that common legal empowerment strategies, including community mobilization, nonlawyer advocacy, mediation, and other forms of so-called “alternative” dispute resolution had positive effects on individual willingness to take individual and collective action. The evidence suggests that community paralegals have significant effects in “bring[ing] good laws to life,” and the involvement of community paralegals leads to successful outcomes in terms of remedy, entitlement, or access to governmental information. Legal empowerment strategies are “successful in improving health ... [and] learning and increasing income,” and in changing government institutions, especially the practices of authorities and agencies at the local level, as well as changes in policy at the national level.

The outside world has begun to notice the value of nonprofessional legal aides like the community paralegal. Access to justice is included in the United Nation's 2016 sustainable development goals, and, in 2018, the UN High-Level Commission on Legal Empowerment of the Poor called for the integration of legal empowerment, defined as “a process of systemic change through which the poor and excluded become able to use the law” in fighting global poverty.

Access to justice is about “people trying to recapture their rightful share of power over their ... futures.” Justice requires that undistorted voices be heard and collective grievances are addressed at their roots. Lawyers, whatever their marginal value for individual clients and their immediate causes, hinder social change on both efficacy and accountability measures because they divert attention to issues amenable to the legal process rather than what people really care about--they keep clients from realizing and developing their problem-solving abilities by turning over problems to societal elites. Lawyers suck the subversive energies and revolutionary spirit out of organic, grassroots movements. Most of the workings of justice occur outside the view of the judicial system. And even within the legal system, just action requires a holistic view of shared problem-solving. Lawyers, myself included, have not proven to have been up to that challenge. It is time to give others a chance.