I've previously argued that the benefits of so-called "civil Gideon" are overstated, and another example hit the news recently.
In FY 1986, 89% of asylum claims were denied, and 52% of asylum seekers had counsel.
In FY 2010, 50% of asylum claims were denied, and 91% of asylum seekers had counsel; the approval rates for without and with counsel were 11% and 54% respectively.
Therefore, Syracuse's Transactional Records Access Clearinghouse announces, legal representation helps asylum seekers in court, and more legal representation is needed—a claim repeated uncritically by an article by Marcia Coyle in the National Law Journal without any opposition in her story. Given that the ABA has called for that legal representation to come at taxpayer expense, that is not an apolitical claim.
There are two problems with TRAC's claim. First, the causal arrow goes both ways. For example, in civil litigation, a number of delusional people insist upon self-representation or are refused representation by attorneys. They do not lose their cases because they don't have attorneys, they don't have attorneys because their cases are facially meritless. The same is true in asylum cases. Someone with a meritorious asylum case is more likely to spend their own money to ensure they have an attorney; an attorney trying to decide which of her scarce resources to devote to a pro bono case is going to triage her cases to reject the ones she does not think have merit. Coming to court with an attorney is a signaling device that either the client or the attorney thinks the case has enough merit to expend time and money on it.
Second, it is painfully obvious from TRAC's own numbers that there are other causes for the huge decrease in asylum denials. Even if every unrepresented applicant was denied asylum in 1986 (which clearly wouldn't be true), represented applicants could not have won more than 22% of their cases. So judges are granting asylum far more often today—which is odd, because there has been no material change in asylum law, and in terms of facts on the ground, the world is a far less repressive place in 2010 than it was in 1986 by any legitimate measure.
In short, TRAC and the National Law Journal have missed the real story. Why are asylum rates going up? The change in the mix of judges seems to have something to do with it. And the most notorious asylum seeker this year, Zeituni Onyango, Barack Obama's Kenyan aunt, was granted asylum on the laughable theory that she faced political oppression because she was related to Obama, a hero in Kenya. Ms. Onyango, who ignored a 2004 deportation order after her original asylum request was denied during the Clinton era, is now living on the taxpayer dime in Boston.