Colorado’s immigration caseload is so backed up, there are 7,116 cases per judge

When the Democratic-controlled Colorado legislature decided in 2021 that immigrants facing possible deportation should have government-funded attorneys, the immigration court docket seemed overwhelming.

This was before 43,000 asylum-seekers from Venezuela and other South American countries arrived in Denver in less than two years, mainly on buses from Texas. This was also before the backlog in pending immigration court cases in Colorado went to 78,000 from 18,000. 

Before the rush of newcomers, lawmakers voted to create the Immigrant Defense Fund, setting aside $100,000 to help immigrants get lawyers and putting Colorado in a small group of cities and states that pay for the immigration court equivalent of public defenders. The legislation — sponsored by Rep. Naquetta Ricks, whose family fled civil war in Liberia when she was 13 and who became the first African immigrant elected to the state legislature — was lauded by immigrant advocates as a “first step” toward providing dignity in the courtroom. 

The fund was tiny — even then — relative to the number of immigrants fighting to stay in the country. Now, though, it’s hardly a drop in the bucket, immigration attorneys say. Colorado immigration courts have sunk to the lowest in the nation in the percentage of people who have attorneys, at only about 15%.

The taxpayer-supported fund grew to $350,000, and then to $700,000 this year with a one-time doubling in state money. Advocates, backed by a study from the liberal-leaning Colorado Fiscal Institute, have proposed boosting it to $5 million per year, which would still only help a small fraction of the 78,000 people whose cases are pending. 

For $5 million, Colorado could fund lawyers for an estimated 77-113 people held in the U.S. Immigration and Customs Enforcement detention center in Aurora and an estimated 341-453 people who are not detained and going to court at the downtown Denver federal building. 

The $5 million proposal is based on the maximum number of cases that Colorado immigration lawyers could handle. Attorneys estimate there are 50 or fewer in the state who take immigration cases. 

Colorado’s caseload is so backed up, there are 7,116 cases per judge. And 1,565 cases per attorney who practices immigration law.

New York has public defender system for detained immigrants

New York City was the first place in the nation to provide “universal representation” for people who are detained and facing possible deportation. The New York City Council created the program in 2014 with $4.9 million and has continued to provide lawyers for immigrants in New York immigration court, as well as city residents who are detained in New Jersey. 

The city’s budget for immigrant legal aid this year is more than $60 million.

Several other cities, including San Francisco and Boston, have similar programs but New York City’s is the most robust, with guaranteed representation for all detained immigrants.

On a federal level, calls to create a public defender system in immigration court, similar to the one in criminal courts, have not gained traction. The topic is considered far too controversial in the current political climate. 

“Immigrants are very unpopular now,” said Violeta Chapin, an associate dean and head of an immigration law clinic at the University of Colorado Law School. Opponents would argue that providing public defenders in immigration court would encourage even more people to cross the border, claiming “we are handing out lawyers like cookies,” she said. 

Even among Democrats, Chapin said, “it’s not part of the national conversation.”

Chapin, who previously worked as a public defender in criminal courts, said it’s hard to see people in immigration court who can’t afford an attorney and do not have one appointed, as they would in a criminal proceeding. Immigration proceedings are civil, not criminal, but immigrants who represent themselves are up against a lawyer for the federal government, same as in a criminal case. 

“We have all these immigration courts that are filling up across the country and no lawyers,” Chapin said. “Nobody likes it. It’s a really unpleasant scene. For me as a lawyer, it was very unpleasant.”

Part of the reason few immigrants in Colorado have lawyers is that the state has fewer free law clinics, such as those tied to law schools. In Colorado, there are only two law schools, far fewer than in California and New York. 

Chapin leads the CU Boulder Law School immigration clinic, working each semester with eight students who are learning criminal and immigration defense. The clinic provides free legal help in immigration court and to noncitizens who are facing criminal cases. Each student is handling three cases, so the entire clinic can help 24 people at a time. And each case might last years.

One client in the clinic is an asylum-seeker from Afghanistan — and he’s been waiting for two years. He has a work permit, and his court date has been rescheduled twice. 

“Courts are so backed up,” Chapin said. “Can somebody put him on the docket? It’s a kangaroo court.” 

The Rocky Mountain Immigrant Advocacy Network, whose lawyers work in the detention center in Aurora, pass along clients to the CU clinic because there are always far more people who need legal advice than the nonprofit can help. This semester, the CU clinic has four cases from the Boulder Public Defender, which are criminal cases for people who are noncitizens.

“I feel a little guilty taking those cases because they would get a lawyer,” Chapin said. “For our immigration clients, it’s us or nothing.” 

The other 20 cases are strictly immigration cases, including some who were legal residents under Deferred Action for Childhood Arrivals, or DACA. Now they’re married to U.S. citizens and want an adjustment in immigration status, because marriage is a more secure status than being a DACA recipient. 

85% of Colorado immigrants representing themselves were ordered deported

Colorado also has fewer large nonprofits with the funds to help immigrants fight deportation. New York, Los Angeles and San Francisco, other places with large immigrant populations, have nonprofits with larger funding. 

In Colorado, the bulk of the Immigrant Defense Fund goes to the nonprofit, Rocky Mountain Immigrant Advocacy Network, the largest provider of legal services for immigrants in the state. Its legal team of 44 attorneys, paralegals and other staff uses the state money mainly to represent immigrants who are locked up in the ICE detention center in Aurora.

Monique Sherman, managing attorney of the nonprofit’s detention program, is among those who wishes the public defender system in federal criminal court existed in immigration court. She called New York City’s public defender program “truly amazing.”

In Colorado, immigrants who do not have a lawyer are 60% more likely to have a judge order them to be deported, according to the Colorado Fiscal Institute. A review of immigration cases that were closed from 1997-2024 found that 85% of people fighting their cases alone ended up with a deportation order. 

Meanwhile, 75% of cases for people who had lawyers did not end with removal orders.

People with a lawyer are also far more likely to file an asylum application and show up for court hearings. “The likelihood of success is orders of magnitude greater if you have an attorney,” Sherman said.

Ideally, anyone facing possible deportation who can’t afford a lawyer would have one assigned by the federal government, said Shayna Kessler, with Vera Institute of Justice, a national research organization that advocates for criminal justice and immigration reform. 

“Nobody is told, ‘No, we can’t represent you because we don’t have the resources,’” she said. “Nobody is told that we can’t represent you because your case seems too weak. That’s why we call it a universal system — that every single person at risk of deportation and at risk of these really extreme and harsh consequences is able to have an expert at their side to help them.”

Similar to criminal court, defendants in immigration court have a lot to lose, and the system is so complex that retired San Francisco immigration Judge Dana Leigh Marks famously likened it to “doing death penalty cases in a traffic court setting.”

They are facing “being separated from their family, separated from their community, and to return to a dangerous condition in another country, without the ability to understand the system, sometimes to be able to speak English, let alone practice law,” Kessler said. “We have these huge numbers of cases in immigration court, and we see enormous numbers of people subjected to a system where they can’t possibly understand the system or defend their rights.”

The Colorado Fiscal Institute argues that there are also economic reasons that support the argument for the government spending millions of dollars on public defenders in immigration court. 

From 2021 to 2023, Colorado immigrants detained because of their case collectively lost $10 million in income. The state and local economies lost out on $15.8 million in economic activity and $894,000 in taxes, the institute said in a May report. 

In the three-year period reviewed for the institute’s report, the immigration court backlog in Colorado tripled. “It’s really a testament to how convoluted and broken our immigration is,” policy analyst Sophie Shea said. 

No matter how much money Colorado spent, the state still couldn’t give everyone in immigration court an attorney, she found. 

“In Colorado and across many places in the United States, if we had an unlimited budget, we still wouldn’t have enough lawyers to fulfill the need,” Shea said. “There is a capacity in the state with what lawyers are available.” 

Immigration judges and court staff do not give interviews to the media, referring inquiries to the Executive Office for Immigration Review, which is the part of the U.S. Department of Justice that operates immigration courts. But the National Association of Immigration Judges strongly advocates for attorney representation. 

“The value of representation for noncitizens in the immigration court cannot be overstated,” the association said in an emailed statement. “Access to representation before our immigration courts can lead to greater fundamental fairness in proceedings and protection of due process rights … especially for vulnerable populations such as the mentally impaired or juveniles, as well as for detainees.”

Immigration reform proposals up to Congress

Legislation introduced in Congress would require that immigrants facing removal proceedings have attorney representation. A letter signed by 58 lawmakers requested $150 million for the proposed legal program, called the Fairness to Freedom Act, which would establish the right to representation in immigration court. 

A second piece of legislation, the SHIELD Act, would create a $100 million grant fund that states could apply for to recruit, train and retain immigration lawyers. 

Congress has been deadlocked on immigration policy for years. In February, following months of work, a bipartisan compromise to tighten security at the U.S.-Mexico border fell apart before it was introduced. The legislation proposed overhauling the asylum process, as well as adding hundreds more border protection agents and immigration judges to help decrease the court backlog.

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