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.....

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