A Modest Immigration Proposal
In 1729, Jonathon Swift caused quite a stir when he published "A Modest Proposal For Preventing The Children of Poor People in Ireland From Being a Burden to Their Parents or Country, and for Making Them Beneficial to the Public." Swift suggested, in jest, that the Irish eat their own children.
This blogger's "Modest Immigration Proposal," will not espouse cannibalism or infanticide, but may be met nonetheless with comparable revulsion by the Immigration Courts. I propose, without a trace of irony, that the Executive Office for Immigration Review (EOIR) should abolish a rule that imposes a form of involuntary servitude on lawyers who submit a Notice of Appearance before an Immigration Judge. Rule 2.3(d) of the Immigration Court Practice Manual, itself ironically entitled, "[l]imited appearances," imposes a form of near-permanent yokedom on immigration lawyers, in these words:
Once an attorney has made an appearance, that attorney has an obligation to continue representation until such time as the alien terminates representation or a motion to withdraw or substitute as counsel has been granted by the Immigration Court.
To the same emphatic effect, Rule 2.3(i)(ii) provides:
Until a motion to withdraw is granted, the attorney who filed the motion remains the alien's attorney of record and must attend all scheduled hearings.
To be sure, Immigration Judges are under stress and suffer from "compassion fatigue" given that their courtrooms are bursting at the joists and rafters with the arrival each day of ever-increasing throngs of foreign citizens ("respondents") issued Notices to Appear for removal hearings.
Why then abolish rules requiring lawyers to remain with the client for the duration of the immigration case before the judge (unless dismissed by the client or the Court)? After all, unrepresented immigrants fare quite poorly. For example, a foreign citizen represented by a lawyer is nearly three times as likely to be granted asylum than an immigrant without legal counsel. Worse yet, in just one recent fiscal year (2008), 168,810 pro se respondents appeared before immigration judges.
The reason to withdraw the "lawyer-for-the-duration" rule is simple. More attorneys would provide legal services to needy immigrants and the stress on Immigration Judges caused by unschooled self-represented individuals would be lessened if EOIR were to adopt the increasingly popular approach known as "limited-scope legal assistance." As the Chief Justices of New Hampshire and California urged in a recent New York Times Op-Ed piece:
[A]n inaccessible, overburdened justice system serves none of us well. . . . It is essential that we promote . . . efforts to close the "justice gap." One such effort involves the "unbundling" of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as "limited-scope representation" that, with proper ethical safeguards, is responsive to new realities.
Limited-scope legal assistance is especially suitable for use in the Immigration Courts. Immigration laws are notoriously complex, and the laws on deportation and forms of discretionary relief from removal perhaps even more exasperating. Yet many immigration lawyers and attorneys in other fields who might otherwise be eager to learn the ropes in Immigration Court are reluctant to try because of the fear that the immigration case and the mandatory attorney-subjugation rules, quoted above, will require unsustainable tours of duty.
Ironically and perversely, more immigration lawyers would pursue specialty certification in immigration and nationality law if limited-scope representation in the Immigration Courts were allowed. In California, for example, where approximately 1,500 lawyers are members of the American Immigration Lawyers Association, only 147 attorneys (a ratio of only 1 in 10) are certified by the State Bar's Board of Legal Specialization in the field of immigration and nationality law. Why the low number? Because certification requires, among other things such as testing and peer review, certain experience requirements, including not less than 150 immigration cases, at least 25 of which must be in "[r]emoval, deportation, or exclusion hearings before immigration judges [and not] less than three cases in this category must be contested proceedings." Few immigration lawyers focused on business or family-based immigration can afford the multiple trips to the Immigration Court that the EOIR's attorney-yoking rules require. As a result, immigrants facing removal must go it alone.
With limited-scope representation and the unbundling of immigration legal services, lawyers and clients could agree that the attorney would appear at the master calendar hearing only, where critical decisions must be made -- conceding or contesting the government's factual allegations and assertions of legal grounds for deportability. Other lawyers, with client consent, might appear only at the individual merits hearing in order to make sure that evidence is properly authenticated and admitted into the record, cross-examine government witnesses, directly examine the respondent, and raise objections or argue legal issues. Surely, this would promote the cause of immigration justice more than a mandatory-continuous-presence rule that frightens many attorneys from ever entering the courthouse.
As the Chicago Appleseed Fund for Justice and Latham & Watkins LLP recommended in their comprehensive evaluation of the U.S. Immigration Courts, Assembly Line Injustice:
The top priority should be to ensure as many people as possible are represented by competent counsel. For those immigrants who remain on their own, the goal should be to make the process simpler.
Limited-scope representation would achieve these goals and promote greater lawyer competence through specialty-bar certification programs.
So my modest proposal, channeling Ronald Reagan, shouts out to EOIR: "Your Honors,'Tear Down That Rule!'"