Do Immigrants Have the Right to a Lawyer? Detention, Children, Fraud

Yes, immigrants have the right to a lawyer in removal proceedings and at most stages of the immigration process, but the government will not pay for one. Federal law gives every person facing removal “the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing.” That single phrase, repeated in two sections of the Immigration and Nationality Act, defines the entire arrangement: the right exists, the funding does not.

The gap between having the right and having a lawyer produces stark results. Represented immigrants win their cases roughly 4.6 times more often than people who appear alone.¹

Why There Is No Public Defender in Immigration Court

The Sixth Amendment guarantees a government-appointed lawyer to anyone facing criminal prosecution. Immigration proceedings are classified as civil, not criminal. Courts have held since the 1893 Supreme Court decision in Fong Yue Ting v. United States that deportation is not punishment for a crime but a civil remedy for violating immigration law. The Sixth Amendment’s promise of a public defender does not apply.

What does apply is the Fifth Amendment’s Due Process Clause, which protects any “person” from being deprived of life, liberty, or property without due process. The Supreme Court has recognized that immigrants physically present in the United States are entitled to due process, even if they entered without authorization.² Due process requires a fair hearing. It does not require the government to supply the lawyer who prepares you for that hearing.

Two statutes lock in this right-without-funding structure. Section 292 of the INA (8 U.S.C. § 1362) says the person “shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”³ Section 240 (8 U.S.C. § 1229a) repeats the same language for hearings before an immigration judge.⁴

Where the Right to Counsel Applies

Once formal proceedings begin, the right to counsel covers nearly every stage. An attorney who agrees to represent you files a Form EOIR-28 with the immigration court to become the practitioner of record, which lets them appear on your behalf, file documents, and receive notices.⁵ If you cannot afford full representation, a lawyer may file a limited appearance using Form EOIR-60 to help you prepare specific documents without taking on the whole case.⁶

The main stages where a lawyer may appear with you:

Master calendar hearings, the first hearing in removal proceedings, where the judge explains your rights, identifies the charges against you, and schedules future dates. The judge must advise you of your right to counsel at this point.⁷
Individual merits hearings, where you present evidence, call witnesses, and make your legal arguments.⁷
Bond hearings for detained individuals, where a judge decides whether to release you on bond. Representation is permitted at no expense to the government.⁸
USCIS interviews, including affirmative asylum interviews and adjustment of status interviews.⁹
Credible fear and reasonable fear interviews. You may consult with a person of your choosing before and during the interview, and that person may attend and, at the asylum officer’s discretion, make a statement at the end.¹⁰
Appeals to the Board of Immigration Appeals after an immigration judge orders your removal.³

If you show up to your first hearing without a lawyer, the judge will typically ask whether you want time to find one. Judges have authority to grant continuances for this purpose, and many do, especially at the master calendar stage. Continuances are not guaranteed, though, and judges have wide discretion over how many delays they will allow.

Expedited Removal: The Big Exception

Everything above applies to formal proceedings in immigration court. A faster process called expedited removal operates with far fewer protections. Under expedited removal, an immigration officer can order certain people removed without ever bringing the case before a judge. There is no hearing, no chance to present evidence to a judge, and extremely limited access to a lawyer during the process.¹¹

The one opening is the credible fear interview. If someone subject to expedited removal tells an officer they fear persecution or torture in their home country, they must be referred to an asylum officer for a credible fear screening, where the consultation rights described above apply.¹⁰ Actually reaching a lawyer in the narrow window before that interview can be very difficult, particularly in remote detention. If you pass the credible fear screening, your case moves to full removal proceedings, and the broader right to counsel kicks in.

Why Having a Lawyer Changes Outcomes

A study of immigration court cases concluded between 2013 and 2024 found that immigrants with lawyers succeeded 64% of the time, compared to 14% for those without. That is roughly 4.6 times better odds of avoiding deportation.¹

The effect holds whether or not the person is detained. Detained immigrants with counsel were 3.8 times more likely to succeed than detained immigrants without. For those never detained, the ratio was four to one. Represented individuals are also about three times as likely to be granted bond, so a lawyer’s impact begins well before the merits of a case are decided.¹

The gap widens for children. Represented children in removal proceedings won 73% of the time, versus 15% for unrepresented children. For unaccompanied minors, the split reaches 82% with a lawyer and 11% without.¹ The system is procedurally complex, the standards for relief require precise legal argument, and judges cannot advocate for either side. A person who qualifies for asylum or cancellation of removal can lose because they filed the wrong form or invoked the wrong legal framework.

If You Are Detained

The right to a lawyer means less when you cannot reach one. Many detention facilities sit in remote areas, hours from the nearest immigration attorneys, with limited phone access, restricted visiting hours, and sometimes no private meeting rooms for confidential attorney-client conversations. Being detained does not strip you of the right to counsel, but the practical barriers turn that right theoretical for many people, and representation rates for detained individuals stay well below those for people who are free.

If the Person Facing Removal Is a Child

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 directs the Secretary of Health and Human Services to “ensure, to the greatest extent practicable,” that unaccompanied children have counsel to represent them and to “make every effort to utilize the services of pro bono counsel.”¹² The qualifier matters. This is not appointed counsel; it is a direction to try. As of 2024, roughly 57% of children with pending cases had legal representation, meaning more than four in ten were still navigating court alone.¹

If the Person Cannot Meaningfully Participate

Section 240(b)(3) of the INA says that if it is “impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.”⁴ Courts have read this to cover people who can physically appear but cannot understand or take part in the proceedings in a meaningful way. Safeguards can include appointing a qualified representative, closing the hearing, or waiving the presence requirement. If someone in proceedings has a mental disability that prevents self-representation, raising the issue with the immigration judge early is critical.

If Your Lawyer Failed You

Having a lawyer does not help if that lawyer was incompetent. Immigration courts recognize ineffective assistance of counsel as a potential basis for reopening a case that ended in removal. The theory is that if your lawyer’s performance was so deficient that the proceeding became fundamentally unfair, you were denied Fifth Amendment due process.

You generally must file a motion to reopen within 90 days of the final removal order. That deadline can be extended through equitable tolling if your lawyer’s failure involved fraud or errors you could not have discovered sooner. If you were ordered removed in your absence because your lawyer failed to notify you of your hearing date, you have 180 days to file.¹³

The Board of Immigration Appeals requires anyone claiming ineffective assistance to meet three procedural requirements, known as the Lozada requirements: a sworn affidavit explaining what your lawyer agreed to do and how they fell short; proof that you informed your previous lawyer of the allegations and gave them a chance to respond; and evidence that you filed a complaint with the appropriate bar disciplinary authority, or an explanation of why you did not. Some courts have relaxed strict compliance with Lozada when the ineffectiveness is obvious from the record or when the person made genuine efforts to comply but could not. If you suspect your lawyer harmed your case, finding a new attorney to handle the motion to reopen is far more effective than attempting it alone.¹³

How to Find a Lawyer You Can Afford

Private immigration attorneys handling removal defense typically charge between $2,000 and $15,000, with complex cases or expensive cities running higher. Several free and low-cost options exist for people who cannot pay those fees.

The Department of Justice’s Executive Office for Immigration Review maintains a list of pro bono legal service providers, organized by immigration court location. Providers on the list have committed to at least 50 hours per year of free legal services, and immigration judges are required to give this list to respondents.¹⁴ The BIA also runs a Pro Bono Project that matches unrepresented people whose cases are on appeal with volunteer lawyers. Many law schools operate immigration clinics where supervised students handle cases for free, and legal aid societies and nonprofit organizations provide representation, particularly for detained individuals and children.

Watch Out for Notario Fraud

In many Latin American countries, a “notario público” is a highly trained legal professional with authority similar to a lawyer. In the United States, a notary public is authorized only to witness signatures and administer oaths. A notary public cannot give legal advice, prepare immigration applications, or represent anyone in court. Some unauthorized practitioners exploit this confusion by marketing themselves as “notarios” or immigration consultants.

The damage can be severe. An unauthorized practitioner who files the wrong application, misses a deadline, or fabricates information can destroy your eligibility for relief, and undoing the harm often requires expensive legal work by a real attorney. Only licensed attorneys and accredited representatives recognized by the Department of Justice are authorized to provide immigration legal services. If someone offering immigration help is not a lawyer, ask whether they are an accredited representative through a DOJ-recognized organization. If they cannot answer, walk away. You can report immigration scams to the Federal Trade Commission at ReportFraud.ftc.gov.¹⁵

1
Iowa Law Review. Access to Counsel in Immigration Court, Revisited
2
Legal Information Institute. Exclusion and Removal of Non-U.S. Nationals
3
GovInfo. 8 U.S.C. 1362 – Right to Counsel
4
Office of the Law Revision Counsel. 8 U.S.C. 1229a – Removal Proceedings
5
Department of Justice. EOIR-28 – Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court
6
Executive Office for Immigration Review. Professional Conduct for Practitioners – Rules and Procedures, and Representation and Appearances Frequently Asked Questions
7
Executive Office for Immigration Review. 3.14 – Master Calendar Hearing
8
Executive Office for Immigration Review. 8.3 – Bond Proceedings
9
U.S. Citizenship and Immigration Services. Preparing for Your Affirmative Asylum Interview
10
eCFR. 8 CFR 208.30 – Credible Fear Determinations
11
Congress.gov. Expedited Removal of Aliens: Legal Framework
12
Office of the Law Revision Counsel. 8 U.S.C. 1232 – Enhancing Efforts to Combat the Trafficking of Children
13
Ninth Circuit Court of Appeals. Motions to Reopen or Reconsider Immigration Proceedings
14
U.S. Department of Justice. List of Pro Bono Legal Service Providers
15
FTC Consumer Advice. Scams Against Immigrants