CLINIC Releases Key Takeaways From FOIA Requests on OLAP and the Recognition and Accreditation Program

Last Updated

March 19, 2021

Author: Tonya Foley, DVP 2021 Spring Intern. Ms. Foley is a third-year law student at the University of Maryland Francis King Carey School.

Partially and fully accredited representatives provide immigration legal services through the recognized organizations at which they work, as part of the Department of Justice Executive Office for Immigration Review Recognition and Accreditation, or DOJ EOIR R&A, Program. This program allows low-income and indigent persons to access quality legal representation and is invaluable to ensuring access to justice for those with cases before the immigration court and the Board of Immigration Appeals, or BIA. This article introduces key takeaways from CLINIC’s resource summarizing information obtained through two Freedom of Information Act, or FOIA, requests and highlights some of the work CLINIC does to support the R&A program.

Key Takeaways from CLINIC’s FOIA Requests

CLINIC submitted two FOIA requests to EOIR seeking data and records on (1) representation in immigration court proceedings by fully accredited representatives, (2) the adjudication of recognition applications filed by non-profit organizations and accreditation applications filed by individuals working or volunteering for a recognized organization, and (3) disciplinary actions against accredited representatives.

Data from CLINIC’s FOIA requests show that the R&A Program is meeting its goal of increasing the availability of competent immigration legal representation for low-income and indigent persons. During the period covered by the FOIA requests, accredited representatives provided representation in 7,799 removal cases and immigration courts issued 6,315 decisions in cases where the respondent was represented by accredited representatives. The data reflects that accredited representatives effectively advocated in even the most difficult jurisdictions and remote locations, and they were instrumental in helping noncitizens obtain bond.

Despite the program’s success, starting in 2019, DOJ substantially increased processing times and substantially decreased approval rates for recognition and accreditation applications. The adjudication time for a first-time nonprofit organization seeking recognition increased from 77 days in 2018 to 158.5 days in 2019-2020. Processing times for renewal applications increased from 75.5 days in 2017-2018 to 262 days in 2019-2020. Initial applications for full and partial accreditation also increased, up 40 percent from 2018 for an approved application and longer for a disapproved application.

Importantly, there was a substantial decrease in approval rates for both new recognition applications and new full accreditation applications under the Trump administration. Only 38 out of 139 new recognition applications were approved in 2019, and the approval rate for new full accreditation applications dropped to a low of 35 percent in 2019. Regulatory changes in December 2016 that allowed for termination of recognition resulted in termination for a large number of organizations, with 49 terminations in 2017, 235 in 2018, and 62 in 2019. EOIR also terminated an average of 59 full accreditations and an average of 416 partial accreditations between 2017 and 2019.

Highlights from CLINIC’s Defending Vulnerable Populations Efforts to Support Accredited Representatives

Along with CLINIC’s Capacity Building, Training and Legal Support and Advocacy sections, CLINIC’s Defending Vulnerable Populations, or DVP, section is committed to supporting accredited representatives. Since 2016, DVP has conducted five courts skills training programs for accredited representatives, which includes webinars, readings, a case assessment exercise and a week-long skills program. DVP also provides fully accredited representatives access to our court skills programs in partnership with the National Institute for Trial Advocacy. DVP offers a three-month long Legal Writing E-Learning course to accredited representatives through which they develop legal writing skills to build confidence. Additionally, DVP has also successfully defended fully accredited representatives who received misconduct allegations sent during the Trump administration.

DVP stood proud as the only organization to submit an amicus brief in Matter of Bay Area Legal Services, 27 I&N Dec. 837 (DIR 2020) which addressed a late-filed response seeking reconsideration of a denied application for accreditation. When then-EOIR Director James McHenry issued a vague and confusing decision, DVP brought these concerns to McHenry’s attention by email and then by letter. On July 2, 2020, McHenry disposed of CLINIC's concerns by issuing a second published decision on this matter holding that ”an amicus curiae is not a party in recognition and accreditation proceedings and has no authority to seek further action following the conclusion of an administrative review under 8 C.F.R. § 1292.18.” However, despite the holding, McHenry clarified the very points that CLINIC had flagged as confusing and problematic. Finally, DVP recruited retired immigration judges and retired BIA members to file a response to the DOJ Office of the Inspector General Audit of the Executive Office for Immigration Review Recognition and Accreditation Program.

DVP’s efforts in supporting and training accredited representatives aligns with CLINIC's mission to train nonprofit immigration legal services organizations to provide affordable, quality legal representation to immigrants.

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