Things that are not what they seem are what they seem.

Sunday, July 26th, 2015
By: Jonathan MontagJ.D.

Some of my clients understand what is going on in their cases. Others think of what is happening as a black box. They hire me to solve some problem. We fill out papers, pay fees, they pay me, we go to meetings or hearings, I may go to meetings or hearings without them, and their problems are gone (when we win).  Despite my explaining what we are doing and why, to them it is just magic. Then they send others who want their own situations resolved through some of this magic. People call and say, “I heard you were good.” What they mean is not I heard you know what to do, do it in a timely manner, keep me informed, are friendly, polite, and accessible, and don’t price gouge me, but rather, you brought the magic of success to my friend and I want you to bring it to me.

It is not necessarily peoples’ faults that they think this way. There are a lot of factors that contribute to it. There is media simplification. There is an axiom about news consumption – the more you know about a topic, the more what you read in a jpurnalist’s article about the topic seems wrong. Journalists need to get it short and shortness does not lend itself to connecting all the dots about how the law works. Further, journalists prefer to report on people, not abstractions like laws and events. Thus, they prefer the narrative of the magic of the lawyer rather than the details of the law. Lawyers capitalize on the myth-making. Far be it (unfortunately) for a lawyer with bills to pay and loans to pay back to discourage clients who want to buy some of the magic.

Of course, the clients are also at fault. Some aspects of the law are opaque and volatile. A client who faced four grounds of deportability recently had his case dismissed when an immigration judge determined none of the charges was sustainable. Five years ago he would have been deported. Who even knows what a crime of moral turpitude is anymore? Other laws are rather clear. Since 1997, the law about three and ten year bars to immigrating and the permanent bar to immigration based on unlawful presence have been on the books and many people – including lawyers and government adjudicators – hardly grasp them. For almost 20 years people have been denied visas or permanent resident status because of these bars, hardly a family with undocumented members in it has not been touched by them and still people are clueless about them. Nearly everyday I have to go through the spiel about what these bars are to potential clients.

The black box of magic is a shortcut for understanding what is actually happening , but ignoring the black box does not mean a person misunderstands the reality of the situation – just the causation. We all lead our lives this way. I am writing this blog on my computer and will post it on the internet. Yet, I have little to no idea about how my computer hardware works, how the software works, or how the internet works. Yet I am very knowledgeable about how to post this blog entry. Like the law, it involves writing checks to people who deal with black boxes, like a pretty lady race car driver,  I think.

People call me all the time and ask about Obama’s new law that they heard about on the news. My initial instinct is to shudder. Presidents don’t make laws. Congress makes laws. There have been no new laws of any major significance since 1997. Yet, people who did not have work permits before now do and people who faced deportation now don’t, so obviously there is some new something, call it a law or call it an executive order or a judicial decision, or a policy priority, or whatever. Play legal semantics all you want, there are new laws out there. The black box is my forest and I am missing the trees.

Just this week, a federal district court in California held that the government violated a 1997 agreement that immigration authorities should not detain of children. In February a federal district court in Washington, DC, held that immigration officials could not detain people arriving at our borders for the purpose of deterring others from coming to the United States. What happens when a family comes to the United States and expresses a fear of return is a long process begins. As laid out by statute and regulations, these aliens are supposed to be detained, an initial evaluation of their fear to see if it makes out a legitimate asylum (or related relief) claim is made, and if a claim exists, the family is scheduled for immigration court, and a custody determination is made. The family files an asylum application in immigration court and an immigration judge rules on it. Six months after filing the application, the family members are able to obtain work permits if the case has not been denied by then. If the application is approved, the family can stay. If the case is denied, the family can appeal. If they succeed, they stay. If they lose, they go.

However, none of this goes as smoothly as that. There are long delays in getting the initial interview and waiting for a decision afterwards. As the waits grow, most, by necessity, are released without these initial interviews. Some are sent to court anyway and some wait for a letter to attend an interview or a court date that never comes. Some get court dates months and even years later. Some judges dismiss cases because of the lack of an initial interview leaving the families without any apparent forum to seek permission to stay in the United States. The complications are myriad and the straight forward process is more a rarity than the reality.

Take away what goes on in the black box and this is what you have – this is what a family perceives. If you come to the border, you get arrested. You are held for a few days at most and released. Based on being released for humanitarian reasons, you get a work permit. Your kids go to school where they finally can learn in a safe environment and often receive breakfast and lunch. States provide benefits if there is no family to assist and even if there is. A letter may or may not come for an interview or for court, but that is months or years in the future. In the meantime, you have escaped the hell scape that is life in Central America, your kids are fed and safe (though lets not over-estimate how wonderful life is in a U.S. ghetto) and being educated. If a letter does come and an application can be filed, a process that takes years commences, by which time the children have grown and avenues for legalizing status may emerge if the asylum claim is not successful.

These families see clearly what is really happening. They may not understand how the system works or why things are happening, but as certainly as Danika Patrick is allowing you to read this article, these families are able to stay in the United States and be safe. That is all that matters to them, as it would be for you if you were in their shoes. Posted July 26, 2015.


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