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Within hours of Donald Trump's election, tens of thousands (literally) of lawyer across the country began organizing to oppose his anticipated policies, whatever those may be. Groups are forming on Facebook and meetings are being scheduled. It's all very preliminary, but it's quite clear that if Mr. Trump's policies equal his harsh campaign rhetoric, attorneys across the U.S. will be prepared to contest those policies in court.
Lawyers are ready to fight for our clients.
Of course, one key area of concern is immigration. Mr. Trump has vowed to build a wall, return Syrian refugees, deport criminal aliens, subject Muslim immigrants and visitors to "extreme vetting," and end "catch and release" at the border.
At this point, it is quite unclear to me what he (1) will do, and (2) can do. Some actions against non-citizens are easier than others. For example, Mr. Trump can enact certain changes without Congressional involvement (diverting resources away from the asylum system, charging a (limited) fee for asylum, eliminating work permits for asylum applicants, and--to a large extent--restricting the definition of particular social group). Other changes require Congressional action (modifying the burden of proof on asylum seekers, blocking asylum seekers who came to the U.S. by passing through a third country, and reducing the one-year time period aliens have to file for asylum after they've entered the country). Finally, some changes would require a Constitutional amendment (eliminating due process for non-citizens). So where do lawyers come in? What can we do?
The way I see it, there are three broad areas where lawyers can help: Litigation, lobbying, and public relations. Let's take a look at each:
Litigation: This is what (many) lawyers do. We represent our clients in court. As it stands now, most non-citizens in Immigration Court do not have an attorney. If deportation cases are stepped up, it's unclear whether the Immigration Courts can handle the volume (currently, there are about 11,000,000 illegal aliens in the U.S. In FY 2015, the country's Immigration Judge's completed almost 200,000 cases. At that rate, it would take over 55 years to resolve the cases of everyone here unlawfully).
It's well-established that aliens who have an attorney are more likely to win their cases. Indeed, unrepresented asylum seekers win their cases only about 9% of the time. Represented asylum seekers win nearly 50% of their cases. So hopefully, some of our organizational energy will go towards increasing the percentage of represented aliens by providing more pro bono and low bono services--currently, only about 2% of people in Immigration Court have pro bono representation. Perhaps we can also volunteer to present more know-your-rights presentations, so that aliens without lawyers can at least get some help with their cases.
Another benefit of more aliens actively fighting their cases is that it will require more government resources--and time--to deport them. This will slow the system down and prevent the government from deporting more people (normally, I would not consider "slowing the system down" as a "benefit," but in these times, perhaps it is).
On a higher level is impact litigation--lawsuits to challenge policies that affect many immigrants. I imagine the national organizations, such as AILA, AIC, and the ACLU, among others, will take the lead here. They have the resources and the expertise. By supporting such organizations with our time and our donations, we aid their efforts to block egregious changes to our immigration system.
Lobbying: Lawyers can be effective lobbyists. We know the law, and we know how the law affects non-citizens and their families at the ground level. This type of hands-on experience allows us to talk to law-makers, at the national level, and also at the state and local levels.
Opponents of immigration and refugee admissions are known for their active and passionate lobbying, and we lawyers need to participate with pro-immigration groups to present the other side of the story. I am convinced that when lawmakers hear from real people--people like our clients and their family members--they can be moved. Indeed, before he was a candidate, Donald Trump met with Dream Act activists and told them, "You convinced me." If such stories can impact Mr. Trump (at least temporarily), they may be able to affect our country’s legislators.
Public Relations: I've written about this before, but over the past 20+ years, there has been a growing disconnect between the development of the immigration law, on the one hand, and the "will of the People," on the other. Through litigation and presidential action, laws have been expanded to benefit more and more aliens--victims of FGM and domestic violence, Dream Act immigrants, unaccompanied minors--without input from "the People" (i.e., Congress).
As one who represents non-citizens, I certainly will not apologize for helping my clients. That is my duty as an attorney. However, I feel that we as immigration advocates need to work harder to build support for more pro-immigrant policies. This involves making our case directly to the American people. If our countrymen had a better idea about who our clients are, why they come here, and how they benefit our nation, I believe that many of them would favor a more open policy towards immigrants.
As I said in the beginning, all this is a quite preliminary. Although Mr. Trump's rhetoric--and some of his cabinet choices--seem ominous, we really do not know his plans. Nevertheless, it makes sense to start organizing now, so we are prepared for any eventuality.
In his play Henry the Sixth, Shakespeare's character Dick the Butcher famously intones, "The first thing we do, let's kill all the lawyers." The context of that quote is often forgotten. Dick is a follower of Jack Cade, a pretender to the throne of England and a populist. For Jack to take control, law and order must be subverted, and this requires getting the lawyers out of the way. In our own time too, we attorneys stand between a populist and his possible victims, but judging by the early organizing efforts, I have little doubt that we will stand firm.
Originally posted on the Asylumist: www.Asylumist.com.
If you want to hire a lawyer to help you with your asylum case, you'll find that attorney fees are all over the map. Some lawyers charge tens of thousands of dollars for a case. The larger immigration firms typically charge in the five to ten thousand dollar range. "Low bono" lawyers--and I include myself in this group--charge a few thousand dollars for an asylum case.
Remember, when you use a pro bono attorney instead of hiring me, you are taking food from the mouths of my children.
But what if you do not have any money for a lawyer, and even a "low bono" fee is too much? The options then are to do the case yourself (usually not a great idea) or to find a pro bono attorney.
Pro bono (short for "pro bono publico") is a Latin phrase meaning "for the public good." In the legal context, it basically means that the lawyer does the work without charging the client any money.
There are different types of pro bono attorneys. The major categories are lawyers who work for charities, attorneys who work for law school clinics, and private attorneys who volunteer their time. There are advantages and disadvantages to each type of pro bono attorney, and strategies for finding an attorney in each category are a bit different.
I suspect that most asylum seekers who find a pro bono attorney do so through a charitable organization. You can find a fairly comprehensive list of such organizations on the Executive Office for Immigration Review website (EOIR is the government agency that administers the nation's Immigration Courts). The list is organized by state, which is helpful. If you do not see your location, click on a nearby state and you should find charities that serve your area. The American Immigration Lawyer's Association (an association of private and non-profit attorneys) maintains a similar, and probably more comprehensive, list. Many of the organizations on these lists are free. Some charge a nominal fee (though in certain instances, I have heard about "nominal fees" ranging into the thousands of dollars, but this is the exception, not the norm). Also, most such organizations will not take a case where they believe the asylum seeker has the ability to pay for a lawyer.
The main disadvantage of using a charitable organization is that they are very busy, and they may not have the capacity to take your case. Also, if you need your case done in a hurry, they may not be able to accommodate you. Indeed, the reason lawyers like me exist is because the charitable organizations do not have the resources to help everyone. If you are able to obtain representation from a charity, they will either do the case in-house, or they will find you a volunteer attorney who will work under their supervision. Many of these volunteer attorneys do not specialize in asylum. However, the non-profits are adept at training and supervising their volunteer lawyers, and in most cases, you will get excellent representation.
So how do you get one of these charities to take your case? It often is not easy, and you may need to call/email/visit a number of organizations before you find one that can help you. But if you are persistent, you may be able to obtain representation. If one organization cannot help you, ask whether they can recommend another to try. It can feel like a full-time job to find a pro bono lawyer, but those applicants who make the effort are often able to obtain representation.
Another type of pro bono representation is the legal clinic. Many law schools have clinical programs where a law professor supervises law students in real-life cases. The students do the actual work on the case. I do not know of a comprehensive, updated list of law school immigration clinics, but this list (in Excel) from the Law Professors Blog Network should get you started. Also, you might try Googling "Law School Immigration Clinic" + the name of your city. Again, these clinics receive many requests for assistance and they have limited capacity, so it is often difficult to get one to represent you.
If you are represented by a law school clinic, you will work mostly with the students--after all, the primary purpose of the clinic is to provide a learning experience for the students. The obvious question is whether law students have the ability to adequately represent asylum applicants in court or in the asylum office. My observation is that, what the students lack in experience, they make up for in enthusiasm and energy. Also, the supervision at clinics (at least the ones I have seen) tends to be excellent. I do not know of any studies on this, but I expect that the success rate of clinical students is comparable to the success rate of practicing attorneys. One issue for clinics is that their cases must be scheduled according to the academic calendar, which can sometimes cause additional delays (though sometimes, it can make things faster instead).
Finally, many law firms have pro bono programs where the firm will represent individuals free of charge. Most firms get their pro bono clients from charitable organizations, but they can take on individual cases directly. If you know someone at a law firm (or if you know someone who knows someone), you might want to ask about this. If the attorney is not familiar with asylum law, she can likely partner with a non-profit organization, which will supervise her (the non-profits usually love to get new volunteer attorneys and are happy to help).
In truth, it is often difficult to find pro bono representation. Resources are stretched thin. But if you persevere, it is possible to find a free attorney. And having an attorney can make a big difference in the outcome of your case.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 09-23-2016 at 09:18 AM by JDzubow
They say that those who do not learn from history are doomed to repeat it. In that spirit, I'd like to discuss some asylum cases that I've lost (or at least that were referred by the Asylum Office to the Immigration Court) and why the cases were not successful.
Remember: You can't spell "client" without "lie."
I am prompted to write about this topic by a recent, unpleasant experience at the Asylum Office. My client was an Iraqi man who claimed to have been kidnapped by a militia, which targeted him due to his religion. Unfortunately--and despite us directly asking him about his travels--the man failed to tell us that he had been to Jordan and applied for refugee status there through the UN. At the interview, the client again denied that he had ever been to Jordan, but then the Asylum Officer told him, "Service records indicate that you applied for refugee status in Jordan in 2011" (whenever an Asylum Officer begins a sentence with "Service records indicate...", you know you are in trouble). The client then admitted that he had been in Jordan for a year. At this point, it was obvious to me that things were only going to get worse from there, and so I recommended that the client end the interview immediately, which he did. That is the first time I ever had to end an interview in this way, and, frankly, it is pretty upsetting. The case has now been referred to court, where--if I continue as the attorney--we will have a mess on our hands. So what are the lessons?
First, and most obvious: Don't lie to your lawyer. In the above example, if the man had told me about his time in Jordan, we could have dealt with it. He didn't and so we couldn't. Unfortunately, many immigrants take the advice of their "community" over that of their lawyer. Asylum seekers need to understand the role of the attorney--it is our job to represent you in a process that can be confrontational, and so the government can use information from your past against you. If you don't tell your lawyer about past problems (especially when he specifically asks you), we cannot help you avoid those problems.
Another lesson is that the U.S. government often knows more than you think they know. If you have crossed a border, it's likely that the government knows about it. The Asylum Officer will have access to anything that you said during any previous contacts with the U.S. government (including during visa interviews). The Asylum Officer also probably has access to anything you said in interviews with other governments or the United Nations. So if you lied in a prior encounter with the U.S. government or any other government, you'd be well advised to inform your attorney. That way, he can try to mitigate the damage. Also, in asylum cases, where a person lies to obtain a visa in order to escape persecution, the lie is not necessarily fatal to the asylum claim. See Matter of Pula.
A different area where we see clients get into trouble is with family relationships. Sometimes, a client will say he is single when he’s married, or that he has five children when he has two. Of course, if the client listed different relatives on a visa application, the U.S. government will know about it, and the lie will damage the client’s credibility. Why would a client lie about this? The most generous explanation, which has the virtue of being true in some cases, is that the client considers the listed relative to be his child, but there is no formal adoption and the client does not understand the legal niceties of the question. In many societies, people who raise a relative’s child consider that child their own. As long as the client explains the situation and the Asylum Officer doesn't think the client is trying to hide something, she should be fine, but again, if the client doesn't tell the lawyer, the lawyer cannot properly prepare the case.
Speaking of family cases and cases where the government knows more than you'd think, I had one case where the woman got married, but did not list the marriage on her asylum form (and did not tell me). In fact, she really did not consider herself married--she signed a marriage contract, but never consummated the marriage, and she seemed to have put it behind her. Unfortunately for her, the Asylum Officer somehow knew that she was married. The result: Her case was denied and referred to court. Had she informed me (and the Asylum Office) that she was married, she likely would have been approved--her brother's case was approved under the same circumstances. So again, the lesson is that the government may know more than you think they know.
The bottom line here is that when preparing an asylum application, it is a bad idea to lie. The U.S. government knows a lot. How do they know so much? I don't know. Maybe ask Edward Snowden. But the point is, if you are filing an asylum application and you are not forthcoming with your responses, you risk losing your case.
Originally posted on the Asylumist: www.Asylumist.com.