Friday, August 18, 2017

Finality - Cruel Finality

I don't know why "finality" appears on this Batman logo, but it looks cool...

For the first five years or so of my career, my immigration appellate practice was pretty much limited to the Board of Immigration Appeals ("BIA") and maybe sometimes the Administrative Appeals Office ("AAO").  I pretty much did everything I could to avoid working much with federal circuit court appeals, more commonly known as petitions for review ("PFR").

This wasn't because I had no interest in learning about PFRs. On the contrary, I always had the goal to one day get involved with PFRs.  It was sort of this distant thought I considered occasionally but never had the guts to just step up and do.

The truth of the matter is that I enjoy brief writing.  For me, it's like putting together a puzzle.  Sure, maybe it's a 20,000 piece puzzle of a crystal clear blue sky, but it's a puzzle nonetheless. Puzzles make you think.  I happen to feel thinking is fun. Writing briefs make me think, therefore they are fun. Well, not always, but they're intriguing.  We'll just say they're intriguing and leave it at that.  The fact that you only have a roughly 10% chance of winning an immigration-related appeal just adds to the challenge.

Writing immigration appeals can be like a puzzle where every piece is the same color.

Needless to say, I was really scared to jump into circuit court appeals.  I didn't understand the procedure and they seemed daunting.  That all changed when I started working in Dallas. The firm I worked for would occasionally pick up a PFR. The one or two times this happened, I helped write the briefs, but I never managed the case from start to finish.

Then things changed.  Moving back to Arkansas, it became apparent there were not many attorneys filing PFRs. Since I had a little experience with the process, I decided to start taking them on, discovering there was actually a very big demand.  Before too long, I had more PFRs than I actually wanted - but I was learning something new with every one. Still, it was a new skill, and like learning any new skill, I was caught off guard by some of the challenges this new adventure brought me.

Advising clients about a PFR is not like immigration court or the BIA

Among those challenges was the difficulty of how to advise clients.  I figured advising clients about a PFR would be the same as advising clients on anything else.  I was wrong.  When I almost exclusively represented clients before the immigration courts and the BIA, there was always this sort of mythical next step.  I could always tell clients they would still have at least one more appeal when their cases were denied and no matter how long their odds were of seeing that appeal approved, maybe a miracle would happen.

Not with PFRs.....

And honestly, that sucks.  It sucks bad.

In theory, after a PFR is denied, you can appeal to the supreme court, but we all know your case is only getting picked up once in a blue moon. Maybe you could request an en banc review or have some potential motions to reopen or stays of removal down the road depending on the circumstances, but at the end of the day, when a PFR is denied, you're client's toast.  It's over. There are no next steps. There are no more appeals, no more fees to pay and no more EADs.  The case is finished. There is finality.

This is a difficult concept to explain to someone who is looking at threats against their lives in a lawless homeland with no obvious place of refuge or mode of protection.  It's hard to tell a grown man he might not be able to see his children again or that he's going back someplace where he can't find a job and provide the basics his family needs because of one decision he made 20 years ago. It's even harder when you know they've paid untold thousands of dollars and spent more time consulting with attorneys than I even want to spend with other attorneys over the course of who knows how many years and it has all come to naught.

You see, at the end of the day, I go home. I spend time with my wife, kids, and dogs. I live in a great city where I'm safe and sound.  The same is true for opposing counsel and the judges who, throughout the process make decisions that adversely affect my clients. I have to tell clients that now they don't get those things. It's heart breaking.

This is a very unjust, arbitrary, and overly complicated system we work in.  I'm not smart enough to elaborate in detail about how we got here or to provide concrete recommendations on changes that will satisfy all sides of the debate, but I do know that it's destroying good people's lives. The consequences are disproportionate to the crime(s) committed. It's destroying families who make our society better, and by extension, it's making our society worse.

I thought I understood immigration law before, but it wasn't until I started sitting across from people, at the end of all their options, and explaining to them that there is no more fight to wage, that I finally started to feel it in my heart.  Turns out, I don't like that feeling. I just thought I'd put that out there.....

Wednesday, July 26, 2017

Remember: It's Okay to Deny the NTA

Arguably the most important moment in the removal proceedings of any respondent is the master calendar hearing. Think about it. Not only is it the first chance for your client to see the immigration judge, OCC counsel, and the courtroom, not to mention getting a feel for the process, but it is also where the charges contained in the Notice to Appear ("NTA") are discussed.

I have been guilty at times of glancing over the NTA and admitting the pleadings and conceding the charge(s) of inadmissibility/removability as quickly as possible so I could get on with filing my applications for relief; especially in cases where I was eager to get to relief due to what I felt was a strong case or a client's desire to push the case forward.

I can't think  of any cases where I've seriously prejudiced a client in doing so, but I certainly have found myself more concerned about the application for relief than holding DHS to its burden of proving inadmissibility/removability.  It's also caused health doses of retrospection.

That being said, I seriously doubt I am alone in having done so.  I often sit and observe other hearings in the court room instead of standing up and asking to go first.  I've done this since I was a baby attorney.

It isn't that I am afraid of having an audience; rather, I enjoy observing other attorneys doing their thing.  I learn a lot no matter how experienced/inexperienced, reputable/shady, or swashbuckling/timid the attorneys are.  I always learn something.  I feel like the day I stop learning from observing other attorneys is the day I need to find a new career.  If I get to that point, I'm either senile or too full of myself to be effective.

Every attorney is different, so spoiler alert: I'm generalizing. One theme I see repeatedly is that hardly anyone denies the allegations or the charge(s).  The NTA is rarely discussed except to admit and concede everything and then to propose eligibility for some form of relief.

In cases not involving criminal charges of inadmissibility/removability or immigrants or non-immigrants still in status, addressing the NTA seems to have become a mere formality.  It's something you do so you can move on to the next thing: applying for some form of relief from removal.

In some cases moving on quickly to the next thing can be in your client's best interest.  Maybe there is a compelling asylum claim or an extremely sick U.S. citizen qualifying relative for purposes of an EOIR-42B.  Combining such factors with an average NTA, - an NTA that OCC isn't going to have any problem meeting their burden of proof with - means that denying the NTA could arguably prejudice a client if a delay is caused by having to schedule a separate contested removal hearing, adding significant time to the process.

But if we're being honest with ourselves, most cases don't rise to that level.  Unless you have a policy of only accepting the strongest of cases (I don't), most are difficult, if not impossible, to win asylum cases, or run of the mill cancellation claims where there are going to be serious issues involving continuous physical presence, good moral character, exceptional & extremely unusual hardship, or all of the above.

Should we be denying the allegations and charge(s) contained in the NTA in these cases?  What are the benefits of doing so?  What happens when we do?  Are there any risks?  Is it ethical? These are all questions I've struggled with the last 8 years or so. If you are also struggling, here is a list of the things I've been thinking about lately.

Of course I've got to make a list....

It is the Burden of the Department to Prove Deportability

We have to remember that it is never our obligation or the obligation of our clients to admit and concede removability.  It is the burden of OCC to prove removability and requesting the court to honor due process by asking the OCC to meet their burden of proof is not shameful, inappropriate, or a delay tactic.  It is fair.  It is due process. It establishes a more complete record (more on that below).

Of course, just because it's OCC' burden doesn't mean you should always hold them to it or do so willy-nilly. Sometimes criminal defendants enter a guilty plea when the state has the burden of proving guilt.  Like with criminal law, there are tons of moving parts and many things to consider in removal proceedings.  Even so, denying the NTA, like entering a "not-guilty" plea in criminal proceedings, may be the best option.

Why do the Job of DHS?

The Department of Homeland Security in the era of Trump is not doing us or our clients any favors. On the contrary, negotiating a favorable exercise of prosecutorial discretion is essentially off the table, trial attorneys rarely stipulate to anything, OCC opposes virtually everything short of our entries of appearance (maybe one day they'll do that too), and scorched earth litigation tactics are on the rise. In such a climate, why should we offer to perform the one obligation DHS has?  Why make their job easier when they're actively doing everything they can to make our job more difficult.

Our one opportunity to respond in kind to increasingly hostile strategies employed by DHS is to force them to meet their burden. Doing so increases their backlogs and forces them to take their first responsibility seriously.  It sends the message that we aren't simply going to roll over and accept whatever aggressive new policy they decide to throw out there. By asserting more control, we remind the trial attorneys and the court that we are indispensable actors in this process, just as they are, and as such, we have options to react to their tactics and should be taken into consideration when they try to change the rules of the game.

DHS has to Open their File

Do you ever get tired of the trial attorney presenting the I-213 or other documents "for impeachment purposes" or other reasons at the individual hearing before you've even had the chance to take a look? Forcing DHS to meet their burden means they are going to have to produce evidence of all the allegations and the charge(s) contained in the NTA for you and your client's review and cross-examination.

You might be able to FOIA those documents, but FOIA is far from perfect.  Denying the NTA not only forces DHS to meet their burden, it also enforces your client's right to review evidence in DHS' possession supporting the contents of the NTA.

Even better, the evidence DHS has in the file is not always infallible.  Taking a peak at the file increases our odds of being able to identify problems with their evidence and documentation, which can lead to opportunities for motions to suppress or otherwise object to the evidence.  In other words, it gives us more opportunities to better defend out clients.

But You Might become a Pariah....

Assuming it is rare as I think it is that removal defense attorneys deny normal NTAs, you might make a name for yourself with the local OCC.  That is not always a good thing.  While it is not necessarily our job to become friends with the trial attorneys, a healthy working relationship is never bad and can pay dividends down the road. For the record, I have been friendly with certain trial attorneys in the past and I look up to several as some of the best attorneys I've ever worked with. I learn from them every hearing. If you don't, you're an idiot.

Regardless, being obnoxious for the sake of being obnoxious can lead to unintended consequences, including an increase in the lack of willingness OCC may have to work with you. You're making their lives and jobs more difficult, so why shouldn't they return the favor. Make sure you know your local trial attorneys and if you decide to employ this strategy, do so respectfully and maybe even selectively.  Don't do it just to do it.

Meeting Client Expectations

Obviously we have to keep our clients informed.  Bottom line.  Make sure your client knows and agrees to any attempts to deny allegations or charges contained in the NTA.  Maybe they don't want to endure a contested removal hearing.  Maybe they want to resolve the case as quickly as they can. Maybe they're detained and it takes all of your efforts just to convince them of the benefits of submitting that cancellation or asylum application.  They need to be involved in the decision making process.

Even so, clients have hired you based on the expectation that you will defend them. They want to see you stand up for them. To argue on their behalf and hold the government accountable. Contesting the NTA is something easy to point to showing you have satisfied those expectations.

Expect Pushback

Not all immigration judges are accustomed to this strategy - especially in seemingly obvious cases. The same goes for trial attorneys. You might get all sorts of unnerving reactions ranging from surprised expressions and raised eyebrows to accusations of employing delay tactics or disrespecting the process. That's okay. Remember, this is litigation.  Arguments happen and drama ensues. There's nothing wrong with that.  Just be prepared for it.

Of course, you may also earn respect. Denying the NTA sends a clear message that you aren't there to play around. You take defending your client seriously and have an understanding of your role as defense counsel. Even with pushback, having that reputation is never a bad thing.

What am I Trying to Say?

For those of us who have been practicing for 10 years or less, the climate today is different than it has been before. Removal proceedings were far from perfect under Presidents Obama and Bush, but many of the tools we had at our disposal in those years have gone the way of the dodo. Moving forward, we have to be creative. We have to be willing to try things we maybe didn't try before. Thinking more critically about the NTA, and when appropriate after consultation with your client, denying the NTA, are good places to start. They are valid options and are perfectly within the rights of those we represent.

All of that being said, my personal feeling is that I try not to be monolithic.  I don't always admit and I don't always deny. Every case is different and should be treated differently.  I try and think critically about each NTA, taking into account each client's circumstances, and then I go from there.

I can promise it isn't always comfortable, and denying the NTA may not be the best strategy in every case, but we should keep an open mind and be willing to deny when necessary to pursue our clients' best interests. Doing so is keeping with our responsibilities as defense counsel and provides another tool in our box, helping to send a clear message to the administration that, while they may increase their efforts to cast a wider net, and they may work to make our jobs more difficult, we, and those we represent by extension, aren't going to be willing participants.

Nathan R. Bogart is the managing immigration attorney at Joyce Law Firm.  He focuses exclusively on immigration matters, including removal defense, appeals, family petitions, citizenship & humanitarian options.

Joyce Law Firm is a law firm dedicated to providing exceptional legal representation in Northwest Arkansas and state-wide. Honesty and experience are the characteristics everyone needs in their attorney. Our goal is to provide the highest quality of service to our clients; we keep you informed about your case and we aggressively represent your interests.

Tuesday, July 14, 2015

EOIR-28s are Forever.....Until soon

At EOIR's roundtable discussion at the last month's AILA national conference, they referenced a proposed rule amending the regs to allow for attorneys to enter their appearance on behalf of a respondent for bond proceedings only, without having to worry about being the attorney of record for the length of the respondent's removal proceedings.

The federal registry summarizes the proposed rule as " [t]his document proposes to amend the Executive Office for Immigration Review (EOIR) regulations relating to the representation of aliens in custody and bond proceedings.  Specifically, this rulemaking proposes to allow a representative before EOIR to enter an appearance in custody and bond proceedings without such appearance constituting an entry of appearance for all of the alien's proceedings before the Immigration Court." The full deal can be found here.

Well that's good news!

The rule is not official yet.  EOIR is currently formulating a final rule in response to the public comments the agency received during the notice and comment period.  I don't know when the final rule will be available and the EOIR representatives at last month's round table did not give a specific date, although they made it sound like the publication of the new rule was imminent.

Until then, it is important to remember that once you turn in those two pieces of green paper, you are on the hook until a motion to withdraw or a motion for substitution of counsel has been approved.  It does not matter if your client stops paying you or disappears or fires you or you were only hired for the bond hearing or whatever.....

Like diamonds, EOIR-28s are forever; until they're not.

When you are the attorney of record in removal proceedings, you have an obligation to appear for any and all scheduled hearings, to comply with all deadlines and to keep the court informed.  I don't really like that.  I've had clients disappear, leaving me with no ability to track them down, but them's the shakes. At least until this new rule gets published.

Now if they could just get rid of that refusal to recognize firms and stop making me file an EOIR-28 just because I'm covering for a co-worker on vacation......

Tuesday, July 7, 2015

To Brief or not to Brief: Is it really a Question?

I've been an attorney long enough to know we all have our own unique styles of, well, everything. For most of my life, I've struggled with black and white thinking.  It's a personality deficiency of mine. There was a time early in my career when I couldn't fathom anyone completing a task that wasn't done "the right way," whatever that means.

As I've gained more experience though, I've come to realize that not only do we all do things differently, we also usually have strong reasons for doing things the way we do them.  Different immigration courts or individual IJs sometimes impose their own preferences and we get used to having to meet those demands, firm policies, or any other of a myriad number of reasons can account for what makes us prepare to defend our clients differently.  Overall, I think that's a good thing.

At this point in my career, I've come to sincerely enjoy talking to other attorneys about how they prepare their cases.  I'm fascinated by why they do things the way they do, especially when they do things differently than I do.

I am not ashamed to admit I've incorporated several of the strategies I've learned from those conversations into my practice.  If you're not talking to other attorneys and incorporating the things you learn because you're shy or you refuse to have dialogue with competitors, you're missing a great opportunity to be a better immigration lawyer.

You may have system, but no system's perfect and nobody knows everything, especially in this practice area.  So for all of you out there who think you don't have anything to learn from other attorneys, know this: I feel sorry for you.


Good.  Now that I've got that out of the way, I'm going to revert back to my native form of black and white thinking and talk about why we should all be briefing in removal proceedings.

I talk, better said, I listen, to as many different immigration attorneys who will let me as I can and I've been surprised, nay horrified, at the number of practitioners who choose not to include pre-trial briefs with the applications and evidence in support of relief in removal proceedings.  Why?

No one is such a great orator or capable of producing such an organized application packet that a brief wouldn't be of great value; at least, I haven't met that person yet.  The IJ's I've interacted with seem to prefer briefs too.  Briefing helps build the record and is a great opportunity to get all of your arguments out there in an organized and coherent fashion.  When well done, they make the IJs' lives easier, which certainly doesn't hurt when decision time comes.

I draw almost everything from my brief: my strategy for presenting my evidence to the court, the questions I plan on asking witnesses, my opening and closing arguments (if allowed), ideas for witness prep and the foundations for subsequent briefs in appellate proceedings.  A strong brief in support of your application for relief is like a window to your case.

Take a cue from the Bard of Avon and get writing.

So at the risk of going off on a tangent, I'd like to share the following reasons, you maybe haven't considered, why you should be briefing in removal proceedings.  There're more, but these ring true to me today.

Briefing helps you get to know your case better.  It sounds simple, but it is impossible to write without thinking.  Writing is a mental exercise as much as it is anything else.  By writing your brief, you're thinking about your case.  It is an exercise in putting your thoughts and arguments out there and getting a preview of them before you show them to the IJ and opposing counsel.  Writing helps you evaluate how effective your arguments will be because you can see them, warts and all.  You can literally see the weaknesses in your case and by seeing them, you can glean a better idea of how to polish them.  This gives you the opportunity to sharpen your arguments and your presentation while minimizing the likelihood of having to perform on the fly.

Briefing gives you the opportunity to frame the issues.  Much, if not most, of the time the burden of proof is on our client (i.e., us) in removal proceedings.  In other words, the onus is on us to present our case in such a fashion to prove to the IJ that our client merits relief.  This isn't easy, and we should be willing and ready to use our full arsenal in favor of our clients.  So you're great at closing arguments.....that doesn't mean a well-written brief that supports your oral arguments won't help sway the case in your favor.  We call what we do removal defense, but in reality, it is removal offense. Once removability has been established, DHS basically gets to sit back and claim we didn't meet our burden.  Put them on the defensive.  Write a brief.

It makes the rest of your presentation to the court look good.  True story.  I'm sure there are some out there, but I have yet to appear before an IJ who doesn't prefer pre-trial briefs.  In some courtrooms I've appeared in, a pre-trial brief is mandated.  The Immigration Court Practice Manual recommends briefs.  Need I go on? Why not?  As one IJ put it to me one time, "how can you give me 300+ pages of evidence in support of your application and not provide me with some sort of guide that makes sense of it all."  The immigration courts are overloaded folks.  It's common knowledge.  You should be preparing your application packets to be as navigable as possible for the IJs.  They don't have all the time in the world to try and figure out what it is you're trying to tell them.  Tell them up front by spelling it out in a brief.

Briefs help guard against error.  I don't know about you, but sometimes when I get in the heat of the moment, I forget things.  The adrenaline's pumping, I'm convinced my client's application should be approved, I get excited, whatever.  It's human nature. Writing a brief before the fireworks start and while I am still level headed is a sure way to make guarantee I get everything out I need and want to say.  This exercise in establishing a written record for the court helps before the IJ, but also ensures all of arguments I want to reserve for appeal are secured.

Briefing saves you work when you get to the appellate stage.  Even if you don't turn briefs in to the immigration court, surely you do to the BIA and the circuit courts down the road.  If so, your pre-trial brief easily serves as a road map to use when preparing the briefs all of us know we have to prepare.  Enough said.

Briefing gives you something to show for the thousands of dollars you're charging your clients. We've all had those clients who accuse us of not doing enough or who question our judgment about every little thing.  They might claim we didn't do our job or they could have done things better on their own.  Not if you wrote a well-written brief.  Producing a well-written brief is a great thing to be able to point to when people question whether your bills are justified.

Briefing raises the bar.....for the bar.  Let's face it.  Immigration attorneys do not have the best reputations among a group of professionals (attorneys) who already have pretty much the worst reputation among professionals.  I mean c'mon!  People hate us more than Hollywood or the real estate industry.  Writing briefs won't change our reputation overnight, at least not with the general public, but consider the people to whom our reputation should matter most: judges, opposing counsel and clients.  Briefing shows you are prepared and least, it makes you appear prepared and organized.  It is impossible to write a brief and not have put at least a little bit of thought into how you're going to represent your client.  The brief shows everyone involved that you've put some thought into your work and makes them think: "hey, this attorney took this case seriously!"

Briefing isn't going to solve all of your problems, but it can give you a better reputation with the court, opposing counsel, and mos importantly, your clients.  It also gives you greater control of your arguments, helps build the record and serves as a foundation from which to build your case.  Briefing is a useful tool that should be used regularly. Get writing.....

Tuesday, May 19, 2015

Just Say Wikipedia

If the BIA's decision in Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015) lives on in the annals of important BIA decisions it will probably be the discussion regarding continuances in removal proceedings or because of the decision's value to IJs in justifying their demand for more corroborating evidence even when the applicant's testimony is credible.

It could also be because the decision is a strong reminder of the wide discretion immigration judges exercise when determining whether to grant a continuance.  Basically, after of the legal analysis is finished, everything comes down to whether the IJ wants to grant the continuance or not.

But I really do not want to talk about an IJ's discretion to grant or deny a motion to continue.  It is such a boring topic, and depending on your IJ, it can be a depressing topic.  Instead, the most interesting thing to me was the BIA's explicit finding that Wikipedia entries are not the best evidence.

Citing Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008), the BIA noted "Wikipedia articles lack indicia of reliability and warrant very limited probative weight in immigration proceedings."  In English: Wikipedia entries are the worst form of evidence, so they will not be given any weight by the BIA.  This may or may not be news to you (I hope it is not), but if it is, now you know.

Wikipedia entries: the poster child for bad evidence?

As attorneys, we all try things that do not work out.  Sometimes we even do dumb things.  I am not trying to rake the attorney in L-A-C- over the coals for submitting a Wikipedia entry.  The more creative we get and the more we try and think outside of the box, the more likely we are to get burned.  Of course, this does not mean we should not continue trying to employ creative strategies to more effectively represent our clients. Especially in Central American asylum cases, there is nothing to lose and everything to gain.  Occasionally taking risks pays off.

I only want to point out that submitting Wikipedia entries as evidence in removal proceedings can now safely be added to the list of things that do not work.  I think we can safely bury that issue.

Farewell to thee Wikipedia entries in removal proceedings.  We hardly knew thee.....

Just say no to Wikipedia articles in removal proceedings.  Even though sometimes they are kind of awesome...

Monday, December 15, 2014

Immigration for Lunch - December 15, 2014

Here's a look at the mid-day headlines:

  • Undocumented immigrants line up for the door opened by Obama
  • Could immigration become Obama's Frankenstein monster?
  • Five GOP immigration myths
  • Obama's immigration move benefits Democrats where it counts
  • Demand intensifies for non-profit immigration lawyers
  • Immigrants flocking to workshops from coast-to-coast

Thursday, December 11, 2014

Immigration for Lunch - December 11, 2014

Here's a look at your mid-day headlines:
  • President Obama vs. Jorge Ramos on immigration
  • Immigrants probably unable to travel under DAPA
  • Immigration action less popular with Hispanics than previously thought?
  • Why Nevada has become a leader on immigration reform
  • More states join fight against the president's immigration action