Big Law’s Immigration Advocates

This article is adapted from “Big Law’s Immigration Advocates,” published in University of Illinois Law Review 101 (2024). See the full article for a literature review, citations, appendices, and more.

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For those who focus on the rights of immigrants, January 2017 is one month that few will forget. Just weeks after taking office, then president Donald Trump signed Executive Order 13769, which was the first of his administration’s three attempts to restrict mobility into the United States by people coming from Muslim-majority countries. Those who had been approved to enter from abroad saw their visas revoked. Others who had arrived were detained at airports, with many told that they had to return home.

The response by immigrant rights advocates was immediate. An open letter, for example, by the International Refugee Assistance Project pleaded for lawyers to assist those in airport detention; the result was that “well over a thousand  ” volunteered their time to provide legal representation. The lawyers who came to help were from a range of practice settings: nongovernmental organizations (NGOs), law school clinics, and specialized immigration law firms. Another group of volunteers emerged as key players as well—namely, lawyers from several of the most profitable American corporate law firms. As Avi Gesser, who was then a partner at Davis Polk & Wardwell, stated at the time, “Our firm has a lot of people in it who were not born in the United States . . . [and] were being detained [and] needed legal representation. And that’s something we do very well.”

The notion of “Big Law” firms engaging in pro bono work is not new. Large law firms have been engaged in pro bono activities on issues large and small, including around immigration, for years. However, the Trump administration’s travel ban seemed to ignite a distinct reaction among many corporate law firm lawyers, as highlighted by a 2018 American Bar Association paper that observed Big Law lawyers were “stepping up” to represent immigrants who were seeking to stave off deportation.

In this article, we empirically assess whether Big Law efforts were successful in representing immigrants who were seeking to stave off deportation in one key arena—the federal circuit courts of appeals. Why focus on this specific arena? Immigration adjudication in the United States is structured in a particular fashion where the courts of first resort and then the higher, sole appellate body—the Board of Immigration Appeals (BIA)—are located within the Department of Justice (DOJ). From there, cases at the BIA go to the federal appellate court for the circuit from where the initial immigration hearing occurred. Certainly, some courtroom work by Big Law lawyers takes place on behalf of immigrants within these DOJ forums. But often when these lawyers enter the litigation picture, as many Big Law lawyers we interviewed as part of this study confirmed, it is at the federal circuit court level.

How did we go about doing this?

This study systematically examines the universe of cases involving immigrants petitioning a federal circuit court of appeals for relief from deportation. The data collected spans discrete but connected moments in time:

•  Early January 2017, when President Trump was inaugurated, through January 6, 2021, when President Biden’s victory was formalized
•  The two terms of President Barack Obama (January 2009–January 2017)

It was important to cover this extended period because, as one Big Law lawyer stated, immigration matters “can be in the pipeline for a while.” Thus, a case that might have begun during the Obama presidency could have made it to the federal appellate level during the Trump years.

We focused on four forms of discretionary relief from deportation: asylum, adjustment of status, cancellation of removal, and voluntary departure—the main types of claims brought by lawyers on behalf of those looking to avoid deportation for more than a decade. In total, we analyzed more than 23,000 cases for this project, yielding particularly noteworthy results.

We also focused on a forum that has yet to receive deep scholarly attention. In just 12 years, 23,000 cases have been decided at the federal appellate level involving immigrants seeking what might be their last reprieve. We believe such a situation demands its own rigorous analysis.

Working with three different Westlaw reference attorneys, we relied on specific search parameters to arrive at a data set of 6,005 cases. From there, we went through these cases and removed those that were not appealed from the BIA directly or where the immigrant went pro se, which resulted in a reduced data set of 5,904 cases.

Next, and again working with the Westlaw reference attorneys, we constructed a second set of search parameters to pull out the “immigrant wins” from within the above universe of 5,904 cases. The total number of these wins was 918. A randomized sample of 200 cases from the 5,904 total was taken to test whether these win results were accurate estimations. The error rate was 0.01, giving us great confidence that our search parameters were highly accurate.

Next, from within the 5,904 cases, we tabulated the number of those where a Big Law firm participated. That number was 241. Subsequently, because we were able to establish that 241 of the 5,904 cases involved a Big Law firm, we also were able to determine that the total number of non–Big Law cases was 5,663. (For more on the methods and search terms, see the appendices in the full article.)

What did we find?

We went through the 241 Big Law cases by hand and found that immigrants who had Big Law lawyers representing them at the federal appellate level won 40.66 percent of the time. Tellingly, this win rate was nearly three times greater than for immigrants who were not represented by Big Law lawyers, where the win rate was 14.48 percent.

Firm	Loss (%)	Win (%)	Total (N)
Non-Big Law cases	85.52	14.48	5,663
Big Law cases	59.34	40.66	241
Overall case total	84.45	15.55	5,904

It should be acknowledged that of the total number of wins, non–Big Law lawyers accounted for 89 percent (820/918). But the data also shows that there indeed was a statistically significant difference present between the win rate of Big Law versus non–Big Law lawyers, thus indicating that it does matter who represents the immigrant during a federal appellate proceeding. (Pearson chi2(1) = 120.694; p<0.001).

From there we examined the win rate circuit by circuit.

As is consistent with the overall data, the win rate per circuit, save one, illustrates that lawyers from Big Law firms were more successful than non–Big Law lawyers, with the margin of difference being especially stark in some circuits. Take, for instance, the Seventh Circuit. The overall win rate for all cases—Big Law and non–Big Law—was 24 percent. However, for immigrants who were represented by Big Law lawyers, the win rate was 69 percent, whereas for those who had non–Big Law lawyers, it was 17 percent. Other noticeable disparities were present in the differences within the First Circuit, Second Circuit, Third Circuit, Eighth Circuit, and Ninth Circuit. The Tenth Circuit was the one outlier where the win rate for non–Big Law lawyers was slightly higher than for Big Law lawyers. However, because the number of Big Law cases was so small (N = 5), it is hard to draw any real conclusions.

The immediate question that arises is what accounts for this noticeable discrepancy. After all, does it not seem surprising that lawyers who focus on corporate work are outperforming those who are experts in the complicated area of immigration law? However, as we return to in our qualitative interviews below, Big Law also has enormous resource advantages, which gives them the luxury of selecting cases that they believe are more likely to win. In addition, Big Law firms often have specialists who focus on appellate practice. They also have available personnel who are readily willing to assist on these appeals, as well as access to diverse research technologies and a keen familiarity with the norms of how the federal appellate courts operate. We return to some of these issues in the qualitative sections that follow.

In this light, we wish to make an unequivocal statement: Acknowledging all of the factors vital to preparing Big Law lawyers during the appeals process is by no means an assertion that non–Big Law lawyers are unimportant or insignificant professionals in the immigration system. In fact, it is quite the opposite. In the lower-level immigration courts, existing data shows that immigrants benefit tremendously when they are represented by lawyers—most of whom are from non–Big Law settings.  

There are two additional questions that emerged as we did this study. First, are applicants from certain countries more likely to prevail in the federal appellate courts than those from other countries? Second, if so, what role, if any, do lawyers from Big Law firms play in these win rates?

Unfortunately, after exhaustive conversations with reference attorneys from Westlaw, the authors determined that there was not a set of search terms that would reliably identify the answers to these questions. However, there is adjacent data from the immigration courts themselves that provide partial, relevant information¹.

Country	Number (2019)	Percent (2019)	Number (2020)	Percent (2020)	Number (2021)	Precent (2021)
El Salvador	2,321	12.3	1,731	11.9	1,149	15.6
Guatemala	1,545	8.2	1,437	9.8	880	11.9
China, People’s Republic	3,459	18.3	1,950	13.4	780	10.6
India	1,929	10.2	1,179	13.4	780	10.6
Honduras	1,291	6.8	1,016	7.0	603	8.2
Venezuala	501	2.6	890	6.1	472	6.4
Mexico	802	4.2	719	4.9	367	5.0
Nicaragua	357	1.9	364	2.5	163	2.2
Russia	299	1.6	245	1.7	156	2.1
Nepal	606	3.2	308	2.1	143	1.9
All other countries, including unknown	5,799	30.7	4,762	32.6	2,205	27.5
Total	18,909	100	14,601	100	7,367	100

This recent data represents the activity from the last two years of the Trump administration (2019 and 2020) and the first year of the Biden administration (2021) at the immigration court level. For a key form of discretionary relief—asylum—China was the country where noncitizens won most frequently during these Trump years—18.3 percent in 2019 and 13.4 percent in 2020. In 2021, China fell to third, overtaken by El Salvador and Guatemala, respectively.

Why does Big Law appear to win more?

Given our findings, what might help explain the disparities in the win-loss rates between Big Law and non–Big Law lawyers? To get at these issues we interviewed 22 lawyers:

• Thirteen had experiences in Big Law firms that engaged in pro bono work on behalf of immigrants.
• Four lawyers were from non–Big Law practice settings where immigration was a central feature of the work done.
• Three lawyers were from NGOs that actively referred deportation cases to the private bar.
• Two lawyers had experiences working in the federal appellate courts, where their respective courts would make similar types of referrals.

Based on our interviews, four big themes that might help explain the disparities became apparent.

1. Resources

For each of these lawyers, perhaps not surprisingly, the number one factor that affected whether and to what extent immigrants were able to receive vigorous representation in the federal appellate courts revolved around the availability of resources. One of the non–Big Law interviewees acknowledged that while his firm does “pretty well,” it is nowhere near what the big firms earn in profits. As he stated, “Even though we help a lot of people and love what we do, we always have to think about the bottom line.”

The top firm according to The American Lawyer, Kirkland, had a gross revenue well over two times that of the 10th-ranked firm, Morgan Lewis. Yet the latter still generated over $2.5 billion in 2021. If we look at the Am Law 100 firms that ranked between #91 and #100, the average revenue there was nearly $450 million. And for those who were in firms ranked between #101 and #200, “the average equity partner . . . [was] earning almost $1 million a year,” according to Original Jurisdiction author David Lat.

For those Big Law lawyers who were interviewed and worked in this environment, they were very aware of the privilege in which they were situated. Take, for instance, the sentiments of a Big Law lawyer from the East Coast, who was part of a coalition that aided noncitizens detained at airports in 2017 following the Trump travel ban. This individual was able to rely on junior lawyers, paralegals, and secretarial staff within his office to assist with the necessary research, filing of paperwork, and intake of client information, which he noted made his job “so much easier.” Another Big Law lawyer who also worked on these cases remarked that he did not worry about using legal research databases because the firm covered these costs. Other expenses, such as lawyer or client travel, court fees, and client attire, were also covered by firms.

There are then those resource advantages that Big Law firms have that might be viewed as more “macro” in nature. Recall what litigation in the federal appellate courts entails. To begin, if there is an oral argument scheduled, it is not unusual for the queries lobbed by the panel judges to be direct, hard-hitting, and sharply interrogative. Being at a Big Law firm means that many smart professionals are present who can moot arguments, review briefs, and prep the representing lawyers before they make any submissions or step into the courtroom. As a mid-level Big Law associate who had left his firm stated, “It was great having these super smart colleagues literally down the hall from me.”

There was one other key resource that a few Big Law respondents also cited. These lawyers, not surprisingly, have a wealthy, connected, and influential client base. A rare but noteworthy occurrence is that when such clients learn about the type of pro bono work these lawyers are doing, they occasionally want to find ways to help. Sometimes a client may publicize the immigrant’s cause to sympathetic press contacts. Sometimes they informally advise the lawyers themselves. And sometimes they offer to serve as a conduit to relevant professional networks.

For lawyers who do not work within this Big Law space, they acknowledge, without much hesitation, their comparable resource disadvantages. One such midwestern lawyer is an immigration specialist who admitted struggling against Big Law lawyers in federal court simply because he is short on staff, works primarily alone, and is often seeking fee-paying clients. Even research tools are limited because of the expensive costs of platforms like Lexis and Westlaw.

Even as a law student, this lawyer knew that going into immigration would not necessarily be a lucrative career path. Yet he opted to pursue this line of work because of a deep desire to help those who are among the neediest in society. He believes that he and other colleagues who are in similar circumstances know the ins and outs of immigration better than their Big Law counterparts. Nevertheless, as he resignedly pointed out, the sad irony is that many within the bar will never view colleagues like him as “successful.” Why? As this lawyer stated, “Resources matter—and people like me just don’t have a lot.”

2. Case selection

The preceding vignette leads to another way that resources affect win rates in the federal appellate courts. Our lawyer above does not have the same type of flexibility in turning down matters compared with Big Law lawyers who take on their immigration cases pro bono. To be sure, non–Big Law lawyers do screen cases and decline to provide representation to some immigrants who seek services.

However, unlike the Big Law firms, individual practitioners often do not generate revenue by providing legal services in other areas, which then can support taking on immigration clients who cannot pay but whose claims deserve representation. Under these circumstances, being particularly selective regarding which clients to take has its limits. Furthermore, immigrants with claims that are less than ideally meritorious—but who can pay—are clients whom many struggling practitioners, like our midwestern lawyer above, may end up (reluctantly) representing.

Big Law lawyers, by contrast, face very different considerations. Consequently, with rare exception, these firms are not dependent upon an immigration clientele to sustain their practice. For this reason, Big Law firms can be extremely selective in the pro bono cases that they take, even employing a pro bono director whose responsibility is to sift through the immigration cases that come into the firm and determine which ones have a realistic chance of prevailing on appeal.

3. The importance of appellate specialization

Recall that an important resource that Big Law lawyers enjoy is having a range of colleagues with whom they are routinely able to share briefs for comments and moot arguments in front of before appearing in appellate court. This point ties to a more structural advantage that exists. Namely, many Big Law firms take pride in their specialized appellate practice groups. These appellate specialists can focus their work on litigation at the federal circuit level, as well as in the U.S. Supreme Court and state appellate and supreme courts. Knowing how to draft briefs, make persuasive oral arguments, and focus on certain issues over others are skills that are developed and then honed by working in such an environment.

What is critical to note here, however, is that most of these Big Law appellate experts are not immigration specialists. In fact, several explicitly stated that they found the technicalities of immigration law to be overwhelming. “There are so many jargony things [about immigration law],” one lawyer said, which make his “head spin.” Another lawyer stated that she does not “have time to be an expert in immigration” because she is “too busy being a corporate lawyer.”

Nevertheless, such appellate lawyers do take on immigration cases on a pro bono basis—and win. Respondents noted that there is a standard skill set of how to litigate in the circuit courts that is transferrable from one area of the law to another. In other words, while the substance of business law and business litigation will be different from that of immigration, there are ways to make a persuasive case and present the issues to the judges that are not subject-area specific. 

For example, consider how much of immigration law is based on statutes and regulations. Understanding the history of how a law or administrative rule came into existence, as well as having the familiarity with the manner in which past cases have addressed relevant issues, are skills that cut across practice areas. At the core of being a good appellate lawyer, one respondent stated, was being able to study, comprehend, and interpret the law in a careful manner, and then from there to craft a compelling story that can move a panel of judges to the lawyer’s side. Another respondent affirmed this point and noted, “That’s how we litigate—whether it’s a corporate or immigration case.”

There is also another enormous advantage that involves relationships. Many of these professionals have served as judicial clerks within the circuit courts in which they litigate. They know the culture of the court; they know the judges’ tendencies, preferences, and even attitudes. They are able to develop their briefs, arguments, and cases in ways that best provide their immigrant clients a chance to receive a close review of the petition—perhaps then an oral argument—and, even better still, a favorable outcome. Moreover, even if the lawyer has not had experience in that particular circuit court, they can still draw upon their own clerkship experiences, and frequently they can lean on colleagues, friends, and other networks to determine what strategies might work best in ensuring their client’s success.

Those lawyers who lacked these advantages clearly were aware of it. One such senior, non–Big Law lawyer half-jokingly put it like this: “Before things went online, I wondered if those [Big Law] lawyers submitted their briefs on better-[quality] paper than I did.” Greater opportunities for Big Law lawyers to become specialized once again undoubtedly trace back to having greater resources. But it is the particularity of specialization itself that appears to contribute to the higher win rates in court.

4. The halo effect

Does the professional status of the lawyer affect judicial decision making? For our study, it was admittedly difficult to determine the precise manner in which a Big Law firm or a lawyer’s reputation made a difference in the outcome of a noncitizen’s claims. Judges and clerks are understandably unwilling to say that judicial decisions can be affected by anything aside from the merits of the case. Nevertheless, from the interviews with lawyers from both Big Law and non–Big Law firms alike, there was consensus that being part of the former had, at least in part, an intangible and beneficial effect for a few reasons.

For one, the relationships that exist between lawyers in many Big Law firms and the federal courts often can have a long and deep history. As stated above, it is not uncommon for federal clerks to move into a Big Law firm upon completion of their clerkships. According to certain Big Law lawyers, invariably networks develop whereby judges know the smarts and reputations of the lawyers who are filing appeals in their courts.

Likewise, there is then what one lawyer called the “sympathy benefit” that Big Law lawyers, he believes, receive when taking on a pro bono immigration case. Other lawyers confirmed this impression, and the idea is that Big Law lawyers are viewed in a positive light for engaging in work that is not fee-driven and instead done to provide representation for underserved immigrant clients, though “the case still has to be strong in order to win,” this particular lawyer mentioned. (For more on the halo effect, see the original article in the University of Illinois Law Review.)

Given the above discussion, some may naturally ask whether Big Law lawyers are simply better, overall, when it comes to representing noncitizens than those who come from other practice backgrounds. Truthfully speaking, in the interviews conducted, this sentiment was expressed by a small number of Big Law lawyers. They noted that to be hired in a Big Law firm an individual typically needed to have attended an elite law school, done exceedingly well as a student, been on law review, and the like. The implication, of course, is that their counterparts outside the Big Law orbit are less smart and less capable.

We, however, are adamant not to draw such a conclusion. Instead, what the evidence suggests is that lawyers who work in Big Law firms have decisive advantages when litigating matters in the federal appellate courts, which contributes to higher win rates relative to other non–Big Law lawyers—such disadvantages are confirmed by non–Big Law lawyers.

Non–Big Law lawyers also rightly refused to concede that they were somehow less capable than their Big Law counterparts. The forums that they primarily work in are the trial-level immigration courts, the BIA, and U.S. Citizenship and Immigration Services, where we know that Big Law lawyers participate far less frequently. Furthermore, the empirical reality is that legal representation in these forums does matter in terms of success rates for immigrants. Non–Big Law lawyers, thus, are extremely effective—but just in different venues. In light of the precarious political context in which many noncitizens find themselves, it is imperative that good lawyers are present in a range of legal forums across the judicial system.

Conclusion

Our research confirms that lawyers can matter—and that they can matter greatly. Past research has highlighted the effectiveness of immigrants having lawyers in the lower-level immigration courts. This study builds upon that work by showing how in another crucial venue—the federal circuit courts—immigrants do better when they have lawyers who are familiar with the appellate terrain. 
 
Of course, from our perspective, the ideal situation would be that immigrants would have cost-free, quality legal representation throughout the immigration adjudication process, including during their first appeal in the federal circuit court. We join the chorus of voices that have long called for immigrants to have a right to government-appointed counsel in immigration proceedings.
 
While we recognize that this change is unlikely to occur any time soon, our wish is that lawyers realize when and how they can do more so that immigrants who are currently languishing with futures that appear both bleak and uncertain can receive the legal assistance they so desperately need—sooner rather than later.

1. See Ryan Baugh, Annual Flow Report: Refugees and Asylees: 2021, Dep’t of Homeland Sec. Office of Immigr. Stat. 11, tbl. 9 (2022). Note that Table 9 is titled: “Individuals Granted Asylum Defensively by Country of Nationality: Fiscal Years 2019 to 2021.” The term “defensively” is used because it is when the immigrant is placed in a removal proceeding and appears in front of an immigration judge that the defense of asylum is raised. What are called “affirmative” applications for asylum take place in front of a Department of Homeland Security United States Citizenship and Immigration Services asylum officer, where in these cases “[g]rants of asylum by asylum officers are not appealable.” [↩]