There is an enormous unmet need for immigrant legal aid in the United States. This is partly due to regulations that bar federally funded legal services organizations from representing many types of immigrants. The possible repeal of these restrictions is rarely discussed as a means to expand immigrant access to counsel. Federal funding for immigrant legal aid appears to have become taboo, despite the fact that for much of its history, legal aid was deeply connected to immigration. This forgotten history reveals that there was once broad national consensus in favor of immigrant legal aid; it became contentious and faced restriction only after legal aid lawyers began to represent “illegal aliens” during the War on Poverty. Congress reacted to legal aid lawyers’ bringing high-profile civil rights litigation on behalf of undocumented immigrants by enacting a restriction scheme that authorized representation only of those immigrants that Congress deemed permanent. This Article contends that as a constitutional matter, government should not be in the business of carving out castes of people entitled to fewer civil rights than others. The denial of legal aid to certain immigrants conflicts with a Jeffersonian view of democracy and with the principle of anti-subordination at the heart of the Fourteenth Amendment. Civil legal aid may not—at this point in time—be an absolute right, but it does represent an important way for indigent and powerless minorities to have their grievances heard. This Article concludes that there is no substantial justification for discriminating against immigrants as to this basic democratic safeguard.
Geoffrey Heeren, Illegal Aid: Legal Assistance to Immigrants in the United States, 33 Cardozo L. Rev. 619 (2011).