The top ten signs the government really does not want lawyers representing clients in immigration cases.

Sunday, April 17th, 2016
By: Jonathan MontagJ.D.

It’s time to admit it, the government does not want lawyers representing aliens in immigration proceedings pretty much before any of the agencies that deal with immigration matters, principally the Departments of Homeland Security and Justice.

1. Customs and Border Protection does not allow attorneys to appear with clients at the border. 8 CFR 292.5(b)  In fact, the Board of Immigration Appeals has held that officers do not even have to tell applicants for admission that they have the right to an attorney or the right to remain silent.  If you wonder what the world was like before Miranda, just go to the border.

2. The Department of States does not allow attorneys into Consulates with clients when applying for visas.

3. A lawyer cannot help a client who is wrongly denied a visa other than by pointing out the error and hoping the State Department consular officer corrects his error. The State Department cannot be sued for its erroneous decisions denying visas.

4. Visiting a detained client can take hours driving to a remote location and then waiting for a long while until the attorney and client are brought to a room to meet. It is a distant memory when detainees were brought to downtown ICE offices for attorney-client meetings.

5. A licensed attorney cannot appear in immigration court without first registering with the Executive Office for Immigration Review.   This is inexplicable. This is the foreshadowing of a myriad of bureaucratic hassles that discourage representation in immigration court.

6. Immigration Court judges. While most immigration judges are probably decent people, who you will appear before can range from judges with proper judicial temperaments to jurists one might expect at the courtrooms in the Evin Prison. Rude, condescending, untouchable. I used to be puzzled wondering that it seemed so hard for the Justice Department to find 220 people with judicial temperaments to become immigration judges. Then, after considering people I knew who applied for immigration judgeships who were not appointed, I came to realize that the Justice Department knows what it is doing and is not making mistakes. Large numbers of cases are reviewed by Justice Department higher ups when cases are appealed to the Board of Immigration Appeals or the Courts of Appeal. If the Justice Department officials wanted to weed out “bad eggs,” they know exactly who they are. But the don’t because they don’t consider them bad eggs at all.  As an example of an immigration judge called out for his judicial style who then continued to have a career on the immigration court bench and a senior administrator, look at this case.  Generally speaking, here’s a hint. If an immigration judge’s name appears in a case, the appellate court often is telling us we have a disaster on our hands. Does the Justice Department care? No. This grim fact is that a 3 year old can figure out that the Justice Department does not think it has a problem to solve.

7. And then there are the  immigration court procedural nightmares. Cases re-set over and over time and time again because judges are sent on details outside of their normal venues. Policies of not allowing applicants pursue the relief they are seeking and which they retained their attorneys to pursue for them. A 157 page rule and procedure book, a Practice Manual, all its own and then on top of it immigration judges setting their own rules and requirements, which you don’t know about unless you practice in that court regularly as they are not published, that cause hardship, delay, expense, and confusion. Every time one appears, one wonders what obstacle they are going to think up next. Then, there is double and triple booking of cases, so after waiting months and years for a hearing and sitting in court all day, the case gets put over for more months and years. Filings that do not reach the file. Websites that give wrong information on where to file and where to serve. Do you really want to be retained by a financially-struggling immigrant for a case with limitless frustrations that will require multiple appearances over multiple years? The cost in file cabinets alone….

8. Hey, ICE? Do your phones work? Some local ICE offices provide lists of telephone numbers of their officers and what case numbers they are responsible for. Need to talk with your client’s officer. Piece of cake, right? Sure, some officers answer their phones and issues are resolved. Others probably stare at the ringing plastic box on their desks and wonder what it’s for. Can a lawyer represent an alien in dealing with an agency that won’t speak with him? Not very easily. Does ICE care? Hardly. Some of these non-communicative officers have been working for ICE for decades and seem to have no job security issues – and with no burdens of communicating with attorneys – probably a whole lot less stress.  Compare it with USCIS – which doesn’t even pretend by giving out telephone numbers.

9. While immigration lawyers spend a lot of time on the phone or filling out forms or waiting in waiting rooms or court rooms, the real work of a lawyer is applying a client’s facts to the law. In immigration law, that can be inordinately difficult? Even basic concepts can be elusive. What is a crime of violence? A crime of moral turpitude? Good moral character? What is a social group for purposes of asylum? How do you define a drug offense or a firearms offense? How do you know if your client was convicted of one – what papers do you always look at and what papers do you never look at?  If anyone thinks that any of these questions has a straight answer, he hasn’t read a new appellate case in the last month.

10. For all your trouble and all the obstacles, what can you end up with –  a bar complaint. Under the immigration law,  to help a client who was misrepresented, to perfect a claim of ineffective assistance of counsel, a bar complaint often must be made. As reticent as doctors are to savage each other, immigration lawyers savage each other with abandon. Unfortunately, if you want to help a client wronged by a former attorney, you have no option. Every decision you make is ammunition for the next attorney to go after your license. And any time you want to help someone stay in the country, you have to become a rat. Is that the path to a satisfying career? Posted April 17, 2016.


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