The right to counsel in immigration cases.
People facing immigration cases need a right to counsel.
As abusive immigration enforcement escalates and due process violations abound, there is increasing attention paid to and evidence supporting the right to counsel for people who are facing immigration cases. The harrowing experiences of people caught and detained by Immigration and Customs Enforcement (ICE) or Customs and Border Enforcement (CBP) underscore the very suspension of liberty and risk to life that led to the U.S. Supreme Court’s Gideon v. Wainwright decision in 1963, establishing a federal constitutional right to counsel for people facing criminal cases that put their life or liberty at risk.
There is no similar right to counsel in immigration cases, and the Supreme Court has not taken up the issue, despite the fact that our immigration system mirrors our criminal legal system in numerous ways.
People detained during a pending immigration case lose their liberty and are held in detention centers without bond (1), often indefinitely. Conditions in these centers are leading to increasing deaths (2). Further, like in criminal cases, immigration detainees appear at hearings in jumpsuits and leg irons; the case against them is brought by the State; and their “adversary” is a federal prosecutor who has the advantage not only of legal familiarity but also the practices and processes of specific courts and judges. There is legal paperwork to review, understand, and file. There are statutes and regulations dictating specific rules and strict timelines, and no guarantee that any of these materials will be in a language that the person can read and understand. Immigration laws are incredibly complex – often called second only to the tax code – and constantly evolving in ways that challenge even trained lawyers. This is particularly true in the current Administration.
It is not only liberty that immigrants facing deportation stand to lose. Deportation can separate families, imperil mental and physical health, and, particularly for people with asylum claims, risk a person’s very life.
“…Not only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. … That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”
– Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
And yet, there is no right to counsel in these cases, not even for people dealing with significant mental or physical health issues, children, or those who have legal status, including naturalization. These conditions have led to a surge in “self deportation” where people leave rather than defend against the case (3). The increasing enforcement actions are also leading immigrants (even naturalized citizens) to reasonably fear routine visits to workplaces, medical providers, schools, and grocery stores, not to mention going to court to enforce their rights for any civil matter (housing, domestic violence, child custody, etc.) for fear of encountering ICE.
Without a right to counsel, those who remain to fight their cases have to depend on a patchwork of free (and often stretched) immigration defense providers or pay for a lawyer (at prices most can’t afford) to represent them (4). As a result, most people facing the risk of being removed from this country are unrepresented. As the Vera Institute, an organization working to advance universal representation in immigration cases, found, “[a]cross the United States, 55 percent of people facing deportation in immigration court lack legal counsel.” The rate of representation varies wildly across the U.S. from as low as 25.2% in one part of Texas to almost 70% in Honolulu Immigration Court in Hawai’i. And in the current enforcement escalation, there isn’t even a guarantee that people who have an attorney will be able to access that attorney (5). For those who cannot secure a lawyer, they must proceed through these cases on their own, which can cause issues that lawyers are trained to avoid and increase risk of loss in the case.
“…Without a lawyer, immigrants miss deadlines they never knew about, fail to assert legal defenses they were entitled to, receive deportation orders in absentia, and are permanently removed even when they had a viable legal path to remain under federal law.”
– Assemblymember Bonta’s February 2026 Press Release on AB 2600.
Legal representation makes a concrete difference for people facing removal.
“Immigration legal services are not peripheral expenditures; they are investments in family unity, public safety, economic stability, and the rule of law.” – New York Legal Services Coalition, “Keeping Families Together, Upholding the Rule of Law.”
In its 2025 special report “Where Can You Win in Immigration Court?,” the American Immigration Council found that immigrants with legal representation were less than half as likely to be ordered removed. “Between FY 2019 and FY 2024, only 26.9 percent of respondents with legal representation—regardless of custody status—were ordered removed, compared to 61.8 percent of unrepresented respondents.”
A randomized study from the Vera Institute on immigration representation provided by the Midwest Immigrant Defenders Alliance (MIDA) found that “[b]eing represented by a MIDA attorney increased people’s likelihood of being granted relief by 366 percent relative to similarly situated nonclients“, and it increased the chance of being released on bond by 22 percent. Notably, “Vera found that the immigration judges differed substantially in their propensity to grant different outcomes, even after accounting for demographic and case characteristics and legal representation. However, the results show that being assigned to one judge versus another did not erode the positive impacts of the MIDA program.“
The New York Legal Service Coalition’s recent report explores the positive impact of legal representation for immigrants in New York and calls attention to the strain providers are facing under the federal administration’s escalating immigration enforcement. The report concludes with recommendations including passage of a statutory right to counsel in the state for immigrants facing deportation.
“If you don’t have an attorney, 80% of cases in Minnesota end in deportation. If you do have an attorney, 26 percent of cases end in deportation, and that’s the difference that legal representation makes.” – Advocacy & Outreach Director at The Advocates for Human Rights in Minneapolis, Madeline Lohman.
Immigration right to counsel in the Trump era
As the Trump Administration continues to violently detain immigrants without due process and in abhorrent conditions, the demands for broader, humane immigration reforms (and even to abolish ICE, detention, and deportation) are growing nationwide. A common reform advocated for, both now and historically (6), is ensuring that people have the baseline protection of legal representation in these cases (7). At present there are efforts around the country to increase immigrant legal defense funding, pass right to free counsel laws, and enact laws that ensure detained clients have access to their retained attorneys.
Immigrant rights advocates and coalitions, and strong supporters within state legislatures, are working around the country to ensure that people have legal representation in immigration matters and access to their attorneys throughout.
Coalition work
Led by the Campaign for Access, Representation, and Equity for Immigrant Families (CARE4IF) Coalition, advocates in New York welcomed Governor Hochul’s inclusion of $72.4 million in the state budget for immigration defense but called for the State to provide $175 million and pass the Access to Representation Act (which would guarantee counsel) and the BUILD Act (to strengthen the legal infrastructure). The New York State Bar also supports these bills.
Fairness to Freedom Campaign is a partnership between the Vera Institute of Justice and the National Partnership for New Americans. This campaign is leading the universal representation efforts around the country.
Litigation related to access to counsel
A number of cases have been brought related to the right to counsel for minors in immigration proceedings, but the Ninth Circuit has repeatedly avoided making a ruling by dismissing the cases on procedural grounds.
The Trump Administration cancelled grants that provided funding for legal counsel for unaccompanied children, a move that has been successfully challenged in court. In January, U.N. experts appointed by the U.N. Human Rights Council formally condemned this funding cut, noting that deportations without counsel are unlawful and a breach of “international human rights law prohibiting the removal of vulnerable groups, including children at risk of human trafficking.”
In The Advocates For Human Rights And L.H.M., v. U.S. Department Of Homeland Security, et al., a pending class action lawsuit in Hennepin County, Minnesota, a federal judge ordered the federal government, among other requirements, ensure that immigrants detained at the Bishop Henry Whipple Federal Building Detention Center have access to telephone calls and visits with current and prospective legal counsel, and are provided a signed copy of their rights as outlined in the order within an hour of detention. Read the order.
Litigation against immigrant defense funding: Texas AG Ken Paxton sued Bexar County TX over its allocation of $556,000 for immigrant representation, arguing it violates the state constitution’s “Gift Clause”. Paxton filed a similar suit against Harris County, where a judge denied the AG a preliminary injunction, and after losing at several levels the case is now moot owing to the funding being used up.
Legislation related to right to counsel and access to counsel
Legislatures around the country, including Congress, have introduced bills about the right to counsel or increasing access to counsel for people involved in immigration proceedings. Below we present the local, state and federal legislation for the 2025-2026 legislative session.
2025-2026 Legislative Session
In this legislative session, we’ve tracked and reported on approximately 33 federal and state-level bills that deal with either access to counsel, building up the immigration legal representation infrastructure, or the right to counsel specifically. There is also significant work being done at the local level.
Please note: The information below is based on NCCRC’s legislative tracking work, which focuses on identifying pending legislation that would modify, repeal, or establish a right to counsel in critical civil cases. The below information shows bills that have been introduced. For an update on status please visit our legislative tracking page here.
Local bills
Minneapolis: In Minneapolis, where ICE enforcement has been rampant for months, the City Council has committed $1 million for immigrant representation, including a recent $500,000 addition of unallocated funds.
Cook County, IL / Elgin, IL: In Illinois, Cook County has expanded the immigration department of the Public Defender, and the City Council of suburban Elgin, Illinois has been considering an ordinance that would allocate funds for immigration defense.
Counties in California: Numerous counties in California took similar measures, “designat[ing] additional money for immigrants to defend themselves against deportation.”
21 State bills
Right to counsel
- California (2). AB1261, which requires the State to “provide legal counsel to immigrant youth in the State of California” (subject to appropriation) and “require the department to allocate funding for these purposes”, was enacted in 2025. AB2600 would provide counsel to covered individuals in immigration removal proceedings.
- Missouri (1). HB3159, would require appointment of counsel for unaccompanied minors for “any order necessary for or relevant to immigration remedies, federal immigration proceedings, any related appearances or matters”.
- New York (9). The bills would either provide a right to counsel in removal proceedings (A00270, S00141, S01066, S09756), or provide a right to counsel to minors specifically (A06189, S01650, S04260, A0582). The BUILD Act (S04538) would create a grant program to expand access to counsel for people facing deportation
- Vermont (1). H0742 would create a right to counsel.
Access to counsel
- North Carolina (2). S917/S982 would appropriate $4 million for immigrant legal defense (S917/S982).
- Massachusetts (4). H1954, H5316, and S1127 would create an Immigrant Legal Defense Fund and statewide system. H5305 would prohibit facilities from impeding a detained individual’s reasonable access to counsel. H5158 would require state prisons contracting with federal gov’t for immigration detention to advise detained individuals of right to counsel. In addition, the state legislature, in response to the increase in immigration raids and removal proceedings, appropriated $5 million for immigrant legal representation in 2025 and is now considering next steps.
- Hawaii (1). HB1839 would ensure immigrants are provided access to their retained counsel.
- Tennessee (1). SB1972 would ensure immigrants are provided access to their retained counsel.
12 Federal bills
6 bills about right to counsel. The bills would either create a right to counsel for minors in removal proceedings, for minors appealing denial of adjustment of immigration status, or immigrants facing deportation. Bills: HB1589, SB1297, HB3127, HB4245, HB 8827, SB2231.
2 bills to increase access to counsel. HB3101 would create a federal grant program for purposes of developing immigration attorney pipeline and legal representation infrastructure. HB4542 would require reporting to congressional committees complaints by detained individuals about “detention conditions, access to counsel, or treatment.”
There are also 4 bills which appear to negatively change provisions of the Immigration and Nationality Act concerning access to counsel for children in immigration proceedings (HB696, SB225, HB8827, SB4546). Similar bills have been introduced repeatedly in prior sessions.
(1) Garland v. Aleman Gonzalez, 596 U.S. 543 (2022) (class action brought by detained immigrants arguing that they were entitled to bond hearings after 6 months of detention; the Court held that lower federal courts are prohibited by the Immigration and Nationality Act to grant classwide injunctive relief); Maria Sacchetti and Carol D. Leonnig, ICE declares millions of undocumented immigrants ineligible for bond hearings, Washington Post (Updated May 7, 2026) (describing a July 2025 memo issued by Todd Lyons, acting director of ICE, directing officers to detain immigrants “for the duration of their removal proceedings,” which can take months or years).
(2) See e.g., Haddy Gassama, Deaths in Detention: ICE Is Rapidly Expanding Detention Camps into Warehouses Despite Record Deaths, ACLU News & Commentary (Apr. 28, 2026) (noting that “[d]eaths inside of immigration detention centers are rising and now occur at a rate of roughly one every six days.”) (internal citation omitted); Aisha Wallace-Palomares et al., Here’s Every Single Death Linked to Immigration Enforcement Since Trump’s Raids Began in 2025, L.A. TACO (May 6, 2026) (noting 46 total in-custody deaths since January 2025; 9 deaths during enforcement activities; and 6 deaths that occurred upon release) (data retrieved May 8, 2026).
(3) See Maria Sachetti, Immigrants are giving up their cases and leaving the U.S. in soaring numbers, Washington Post (May 8, 2026).
(4) The legal patchwork exists for most life-changing civil cases in the United States. For example, there is a right to counsel for tenants facing eviction in New York City, but not across the state as a whole (though advocates are actively fighting for it).
(5) In fact, there have been many lawsuits filed over the Department of Homeland Security denying immigrants access to volunteer or retained attorneys.
(6) You can find articles, resolutions, legislative updates, reports, and more on the right to counsel in immigration proceedings by visiting our website: https://civilrighttocounsel.org/?s=immigration
(7) But for a critical perspective about the right to counsel and other reforms, check out this resource from Detention Watch Network.
