How to Hire an Immigration Lawyer Who Won’t Rip You Off

by Jason Dzubow

I’ve written previously about the poor state of the immigration bar.  And while there are–unfortunately–too many bad lawyers, there are many excellent ones.  The question is, for an immigrant unfamiliar with the American legal system, how can you distinguish between the good and bad?  In other words, how do you find a lawyer who will assist you, and not just take your money?  Below are some hints that might be helpful:

If your lawyer wears a cape, that is probably a good sign.

– Bar complaints: Complaints against lawyers are often a matter of public record.  So you can contact the local bar association (a mandatory organization for all lawyers) to ask whether a potential attorney is a member of the bar and whether she has any disciplinary actions.  You can also look on the list of disciplined attorneys provided by the Executive Office for Immigration Review (“EOIR”).  Sometimes, good attorneys are disciplined, but if an attorney has gotten into trouble withe the Bar, it would be helpful to know why.

– Referral from non-profits: Most areas of the country have non-profit organizations that help immigrants (EOIR provides lists of such organizations here).  While these organizations are often unable to take cases (due to limited capacity), they usually have referral lists of attorneys.  I would generally trust the local non-profits for recommendations, as they know the lawyers and know their reputations. 

– Referrals from friends: Most people who hire me were referred by an existing or former client.  However, from the immigrant’s point of view, I do not think that this is the best way to find a lawyer.  They say that a million monkeys with a million typewriters, typing for a million years will eventually write a novel.  It is the same with bad immigration lawyers.  Once in a while, they actually win a case (usually through no fault of their own).  The lucky client then refers other people.  I suppose a recommendation from a friend is better than nothing, but it would not be my preferred way to find a lawyer.

– Instinct: If you think your attorney is not doing a good job, he probably isn’t.  Attorneys are busy people, and they may not be as responsive as you might like, but if your attorney never returns calls and is never available to meet with you, that is a problem.  Also, if your attorney seems unprepared in court, that is obviously a bad sign.  If you are having doubts about your attorney, nothing prevents you from consulting with a different lawyer for a second opinion.

Hiring a lawyer can be tricky, especially for someone who is unfamiliar with the American legal system.  Given that the quality of lawyers varies so much, it is worth while to spend some time investigating a lawyer before you hire him.  That is the best way to protect yourself and (hopefully) ensure that you receive the legal assistance that you need.

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Lawyers Can Help, Even When They Can’t Help

by Jason Dzubow

It happens two or three times each week.  Someone contacts me for help with an immigration issue and after talking to the person for a few minutes, it becomes obvious that there is nothing to be done.  The person does not qualify for adjustment of status, Cancellation of Removal, asylum, VAWA or any other form of relief.  Besides commiserating, what’s a lawyer to do in this situation?  I suppose you could sing them a verse of Shana na na, na na na na, hey hey, goodbye and show them the door.  But probably the more responsible course is to give the person some advice about where they stand.  Here are some issues I usually discuss with these unfortunate souls:

If nothing else, you can help your clients buy an airplane ticket.

– I often tell them that since (contrary to popular belief) I am not infallible, they might want to speak to other lawyers.  However, I caution them that some lawyers will take advantage of people in their situation and charge money when there is no way to help.  I suggest that if another lawyer offers to help them, they can ask what the lawyer will do, and then call me and tell me.  I won’t charge them anything, but I will tell them whether I think the lawyer is trying to rip them off.  I figure this is a win-win.  Either the person will avoid a potential scam, or I will learn about a new form of relief.

– Recently, I have been discussing the new rule on waivers.  In case you did not hear about this rule, starting in January 2013, instead of leaving the county to apply for a waiver, eligible aliens will be able to apply for a waiver in the U.S. and, if it is approved, leave the United States, process their case at the consulate, and quickly return to the U.S.  This new rule will potentially save people years of separation from their families (unless it is blocked by Congressional Republicans).

– I also advise people about the consequences of remaining in the U.S. illegally.  Such people face detention and deportation.  I tell them that a traffic stop or any type of criminal arrest can result in an ICE detainer.  Once detained, it is very unlikely that the person will be released before being deported, so it is important to have someone to look out for family members and property in case of an arrest.

– If the person is already in proceedings, I discuss Prosecutorial Discretion and Deferred Action.  PD is where DHS agrees to terminate proceedings, leaving the alien in limbo.  At least the government will end its efforts to deport the person–for the time being.  Deferred Action may be requested before a person has been placed into removal proceedings or once they have been ordered removed.  It is simply a request that DHS not deport the alien.  People granted Deferred Action can apply for a work permit. 

– Finally, I often have to explain away false rumors.  It seems that every time there is a policy change, desperate people are led to believe that it is some type of amnesty.  Those responsible for these rumors include unscrupulous lawyers and notarios, who want to make money, and the conservative press, which interprets anything the Obama Administration does as an “amnesty.”  I explain that there has been no major change in the law and that there is no amnesty.

Although we can’t always help our clients resolve their immigration problems, at least we can educate them about their situation and help them avoid scams.  This is an important service, and your clients will (hopefully) thank you for it.

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Florida Congressman Moves to Limit the Cuban Adjustment Act

by Jason Dzubow

Congressman David Rivera (R-FL) recently proposed changes to the Cuban Adjustment Act to prevent Cuban nationals from receiving residency through the Act and then returning to visit Cuba.  In a statement on the matter, Rep. Rivera says:

The fact that Cubans avail themselves of the Cuban Adjustment Act citing political persecution, and then quickly travel back to the persecuting country, is a clear and blatant abuse of the law.  In fact it is outright fraud being perpetrated on the people and government of the United States.  If Cubans are able to travel back to the communist dictatorship then they should not have received the residency benefits associated with the Cuban Adjustment Act and they should lose that benefit immediately.  My legislation simply says that any Cuban national who receives political asylum and residency under the Cuban Adjustment Act, and travels to Cuba while still a resident, will have their residency status revoked.

Mr. Rivera states that his intent is to reform the CAA in order to save this important benefit for future generations of Cubans.

Reforming the CAA is like upgrading your 8-track.

It is interesting that a politician from Florida–particularly one with the anti-Castro bona fides of Mr. Rivera–would have the chutzpa to challenge the Cuban American community on this issue.  It doesn’t strike me as a particularly wise move politically, even if it makes sense from a policy point of view.

Although I am generally pro-asylum, I have long believed that the CAA should be abolished.  The fact that (presumably) many Cubans are returning to the home island for a visit after they receive status in the U.S. just confirms the absurdity of this law.  Clearly, all the Cubans taking advantage of the CAA are not refugees in the normal sense of the word.  If a Cuban person reaches our shores, he should apply for asylum like everyone else.  If he demonstrates a well-founded fear of persecution based on race, religion, nationality, political opinion or particular social group, he should receive asylum.  Otherwise, he should be removed from the United States.  Mr. Rivera’s proposed reform–which is ostensibly to help preserve the CAA–seems pointless given that the law is simply not worth preserving.

Indeed, the only real justification for the CAA that seems remotely reasonable is that it gives us a propaganda win over Cuba since it demonstrates that lots of Cubans would rather live here than there.  Aside from the fact that our country has been enriched by large numbers of Cuban migrants, I don’t see what this propaganda victory has achieved.  The CAA was passed in 1966 and–45 years later–the Castro brothers are still in charge.

Rep. Zoe Lofgren, a pro-immigrant Congresswoman from California, opposes the proposed change to the CAA:

“No matter what the reason for stepping foot in Cuba, you lose your status,” Lofgren said. “If you go to visit family members you haven’t seen in years, you lose your status. If you go to attend a funeral or donate a kidney to a dying relative, you lose your status. If you go to meet with Cuban dissidents with the aim of transitioning Cuba to a democracy, you lose your status.”

Welcome to the world of refugees from every country other than Cuba.  Asylum seekers and refugees who return to their home country for any reason, including donating a kidney, risk losing their status in the United States.  Again, while I favor offering safe haven to people who need it, I certainly understand why the government would want to cancel a refugee’s immigration status if she returned to her home country.  Of course there might be compelling reasons to return home, and so refugees and asylees who do so can sometimes retain their status.  But given the limited resources of our asylum system, a presumption in favor of such people losing their status makes sense.

In any case, it seems Mr. Rivera’s proposal is not getting much traction.  A more appropriate proposal would be to eliminate the CAA altogether and require Cubans who fear persecution to apply for asylum like everyone else.

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Want to Help Gay Couples with Immigration? Give Them Asylum

by Jason Dzubow

I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.  The two men started a successful business and are pillars of their community.  But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.  This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act (“DOMA”).

The Defense of Marriage Act: DOMAnd Dumber.

Last week, a federal appeals court struck a blow against DOMA.  The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.  However, the First Circuit said “its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules” on the matter.  Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.  We will have to wait and see.

In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner. 

If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions.  When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.

Although this definition of “persecution” stretches the normal meaning of the term, there is precedent for such a move.  For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.  Also, people who fear coercive family planning in China are eligible for asylum.  For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief. 

While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.  In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).  More recently, DHS determined that domestic violence could form the basis for asylum.

The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.  Witness the new regulations on waivers.  Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.  This often meant a long separation from family members while the waiver was processed.  Starting in January 2013, such aliens can apply for a waiver in the United States and–if the waiver is approved–they can obtain lawful status with only a brief stay overseas.

President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.  So why not do something for the thousands of same-sex couples faced with forced separation?  Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.  If DOMA is repealed or overturned, the government could re-visit this definition of persecution.  But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.  We should grant asylum to gay and lesbian spouses of U.S. citizens.

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Some (Unsolicited) Advice for the Anti-Refugee Crowd

by Jason Dzubow

It’s easy to find anti-immigration websites and blogs on the internet, but there really aren’t many websites devoted exclusively to opposing refugees and asylum seekers in the U.S.  Of course, many of the anti-immigration websites periodically discuss these issues, but this is not the same as a restrictionist website focusing on asylum. 

The only blog I’ve found that is devoted exclusively to these issues is Refugee Resettlement Watch, which (as the name implies) was founded to highlight problems in the U.S. refugee resettlement program.  RRW advocates for fewer refugees and better oversight of the resettlement program.  It also opposes bringing in “Muslim refugees, Somalis in particular, who have no intention of becoming Americans.”  The blog authors add a note for those who might think the website racist:

Some of you reading this have for way too long intimidated and silenced people you disagree with by calling them racists, xenophobes, hatemongers and on and on and on.  It doesn’t work here, in fact, when you start with that sort of attack and don’t address the issues we raise, it validates our work.

The bloggers for RRW are very active, and post several articles each day.  They also attract a fair bit of attention–according to their website statistics, the site has received almost 1.2 million hits.

Although I obviously disagree with the main goal of RRW, I don’t think there is anything inherently wrong with advocating for the reduction or elimination of our refugee and/or asylum programs.  Indeed, I can think of a number of legitimate arguments supporting such a move: Our money would be more effectively spent helping refugees overseas; these programs are too costly given our current economic woes; refugees integrate too slowly–or not at all–into our communities; we should only help refugees who are “culturally compatible” with our society.  I won’t address these arguments here.  Instead, I want to talk about RRW (in other words, it’s time for the unsolicited advice).

"Why are people always dis-ing Ishtar?"

First, RRW would be more effective if it was less partisan.  The blog is not even close to neutral in its approach; it reports almost exclusively negative news about refugees.  If a refugee jaywalks in Cincinnati, RRW will cover it.  But if a refugee saves 10 children from a burning school bus, you won’t hear about it on RRW.  Perhaps the point is to destroy the myth of refugees as innocent victims and replace it with a more sinister image.  While this type of advocacy might do well with the already converted, it is unlikely to change many people’s minds.  So my advice to RRW is, try to be a bit more subtle.  If you want to convince me that Dustin Hoffman is a crummy actor, you can’t only talk to me about Ishtar.  You have to address The Graduate and (G-d forbid) Meet the Fockers.  My point being, unless RRW acknowledges in a meaningful way the positive aspects of the refugee and asylum programs, it will not have much legitimacy to address the negative aspects.   

Second, while I am willing to  accept RRW’s claim that it is not racist or xenophobic, it certainly provides a safe space for racists, xenophobes, and hatemongers.  A quick purview of the comments (and RRW’s responses) demonstrates this pretty clearly.  Even the Center for Immigration Studies–a well known restrictionist group that has itself been (unjustly in my opinion) called a hate group by the Southern Poverty Law Center–keeps a safe distance from RRW.  So my advice is, don’t allow hateful and racist comments to go unchallenged.  When you actually demonstrate that you oppose racism and xenophobia, instead of just saying it on your “about us” page, people will take you more seriously.

Finally, many of the articles on RRW take a contemptuous tone towards refugees and advocates for refugees.  While these repeated–and often nasty–comments might be viscerally appealing to people who oppose (or hate) refugees, they are a big turn off to the unconverted.  My advice: Have a sense of humor and give people the benefit of the doubt, at least once in a while.  Everyone who advocates for refugees is not a self-serving, crypto-jihadist, and many refugees are simply ordinary people fleeing terrible circumstances.  A more respectful tone towards such people might actually win you some converts.

Of course, I don’t expect RRW to listen to my advice (does anyone listen to advice these days anyway?). Perhaps they are satisfied speaking to a like-minded audience and avoiding honest debate with their political opponents.  To engage in a real discussion with people who have different views requires listening, humility, patience, and courage.  I know from personal experience that it is not always easy to engage in such discussions.  But that is how we learn and grow, and it is how we get closer to the truth.

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NY State Bar Protects Incompetent Lawyers, Not Immigrant Victims

by Jason Dzubow

As far as I can tell, the NY State Bar exists to protect incompetent and dishonest immigration attorneys.  It could care less about the immigrant victims of those attorneys.

New York has more attorneys than any other state–about 157,000 of them (as of 2010).  A disproportional number of immigration attorneys are barred in NY because it is one of the few states that allows foreign lawyers to sit for the bar (assuming they take a certain number of credit hours at a U.S. law school), and many foreign-trained attorneys practice immigration law.  Because there are so many immigration attorneys barred in New York, the NY Bar Association has a particular responsibility to protect immigrant victims of attorney malpractice. 

What other organization protects its own (and its pets) regardless of right or wrong?

Thus, when an alien (or her attorney) files a bar complaint against a New York-barred lawyer, you might think the Bar Association would take that complaint seriously.  Unfortunately, this is not the case. 

As an initial matter, it is not easy to file a bar complaint in New York.  Unlike most other states, there is no central authority where complaints are filed.  Instead, the injured client needs to determine the correct NY department with authority over the offending attorney.  This depends on where the attorney is located, but it is not always easy to figure out.  Once you know the correct department, you can file your complaint. 

On behalf of my clients, I have filed two complaints against NY-barred lawyers. 

The first was against an attorney who refused to turn over a client file because the client had not paid money allegedly owed to him.  Refusing to turn over a file is not allowed under the Rules of Professional Conduct.  After I filed the complaint, the attorney responded to Bar Counsel and threatened me with a frivolous bar complaint for the “tone” of my phone conversation and letter to him.  Threatening a frivolous complaint is not allowed either.  Nevertheless, the NY Bar saw fit to dismiss my complaint.

The second complaint did not even get that far, and was dismissed out of hand.  In that case, my client received a decision from the BIA (she lost) and the lawyer failed to inform the client–for over one year.  As you might imagine, not knowing that her case was denied caused problems for my client.  The Bar Association’s response to our complaint:

After careful review, it has been determined that the issues you raise are more appropriate for resolution by the Board of Immigration Appeals in the first instance [we had also filed a motion to reopen with the BIA, but they are not responsible for attorney discipline].  Therefore, although we appreciate your effort, we are unable to assist you.

How nice that they appreciate our effort.  Further, we did not file the complaint so that the Bar Association could “assist us.”  We filed the complaint because the attorney violated her duty to inform my client about the result of the appeal, and because such a complaint is required to reopen the immigration case.  If she did this to our client, likely she has done it to others.  The Bar Association should be as concerned (or more concerned) about protecting potential future victims of this attorney than it is about “assisting” my client.  But obviously, they do not care about my client or about any potential future victims. 

To their credit, the Bar Association did an excellent job of protecting the incompetent lawyer.  They did not even require her to make a response to our complaint.  Thank goodness that the attorney was not inconvenienced by having to spend time explaining her bad conduct.  Better, she should use that time to rip off other immigrants.   With all the money she makes, I hope she remembers to bay her bar dues–she certainly owes them for protecting her. 

Despite my annoyance at the general failure of the New York Bar to protect immigrants, there are some resources available.  You can contact the Attorney Grievance Committees.  You can also contact the Immigrant Affairs Program of the District Attorney’s Office for the City of New York.  For the sake of future immigrant (and non-immigrant) victims, we can only hope that the NY Bar Association will one day recognize its responsibility to protect the public, and not just its own members.

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The Problem With Immigration Lawyers and How to Fix It, Part 4: Attorneys

by Jason Dzubow

If you have been reading this series of posts, you know that so far I’ve blamed several people/organizations for the poor quality of immigration attorneys: Immigration Judges, Bar Associations, and Notarios.  I suppose some of the blame for bad attorneys might possibly… perhaps… maybe rest with the attorneys themselves (ourselves).  So what’s wrong with immigration attorneys?

We lawyers aspire to be as competent as we are good looking.

For one thing, most immigration attorneys are solo or work for small firms (I fit into this category).  Therefore, the only real barrier to entry is to pass the bar.  This is not a particularly high standard.  Other areas of law where attorneys tend to be solo or small-firm practitioners also seem to have their fair share of problems: For example, there was a spate of incidents where criminal defense attorneys fell asleep during capital murder cases.  Not that attorneys who work for large firms, large organizations or the government are necessarily better than small firm lawyers, but at least they are vetted by the employer before being hired.  In a prior post I mentioned the idea of a mandatory immigration bar association.  I believe that such an association would improve the practice of law by educating and regulating lawyers who practice before Immigration Courts and agencies.  In other words, it would fulfill some of the functions of a large employer in terms of quality control.

Another issue for immigration lawyers (which I believe is changing) is that immigration law was not considered a very prestigious practice area.  This means that top-notch attorneys and law students have generally not been attracted to this field (obviously there are many exceptions).  One reflection of this problem is the absence of academic journals related to immigration law.  When I was a law student in the 1990’s, I was on the Georgetown Immigration Law Journal.  Even today, that journal bills itself as the “only student-edited law journal devoted exclusively to the study of immigration law.”  Given the growing popularity of immigration law–and the important ways it affects people’s lives–I am hopeful that the practice of immigration law will become more respected and that we will see more law school journals devoted to the subject.

A related issue is that until relatively recently, law schools offered very limited (or no) classes about immigration law.  Over the last five or 10 years, this situation has begun to change pretty dramatically.  Now, students interested in immigration law can take a number of relevant classes at most law schools.  Also, law school clinics where students represent asylum seekers and others in Immigration Court have become quite popular.  These increased educational opportunities will, I think, help improve the quality of attorneys practicing immigration law.

Finally, since many immigrant clients are unfamiliar with the American legal system, they are often poor advocates for themselves and require extra help from their attorneys.  They are also particularly vulnerable to unscrupulous lawyers.  This means that perhaps the field of immigration law attracts people who would take advantage of others.  An analogous (though largely anecdotal) situation involves a 1998 study of disbarred attorneys in Michigan.  The study (of only 16 attorneys) found that the practice area with the most disbarred attorneys was probate law.  “The combination of estate funds and often older clients apparently proved irresistible to several former attorneys,” the report speculates.  In other words, easy money and vulnerable clients attract unscrupulous lawyers.  In the immigration context, a mandatory bar association would help mitigate this problem.

I would like to conclude this series on an optimistic note.  I think immigration lawyers are getting better.  The field is becoming more prestigious and is attracting the best and brightest law school graduates.  Also, immigrants are becoming more sophisticated and better able to protect themselves.  Hopefully, all this will lead to better representation for people in Immigration Court.

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The Problem With Immigration Lawyers and How to Fix It, Part 3: Notarios

by Jason Dzubow

The now-defunct Syms clothing store had a slogan, “An educated consumer is our best customer.”  Unfortunately, many asylum seekers and immigrants are not well educated about the immigration system or the attorneys and notarios who represent them (a notario, in the parlance of our times, is a non-lawyer who purportedly assists aliens with their immigration paperwork). 

If your lawyer also sells fried chicken, it might be a bad sign.

Some notarios are honest and do excellent work; some are crooks who exploit an alien’s naivete about the immigration system and steal their money.  Although it is somewhat self-serving for an immigration lawyer (like me) to condemn notarios, I have seen many instances where a notario caused an alien to lose his case or where the notario took the alien’s money and disappeared.  Also, I am certainly not alone in my opinion: AILA has an over-the-top website called Stop Notario Fraud, and USCIS has a campaign explaining that the wrong help can hurt.  Not to mention that it is illegal to provide legal representation unless you are an attorney or an authorized representative.

In the asylum context, many applicants use notarios to help prepare their affirmative cases (the name for these “helpers” varies depending on the country of origin; for example, an Ethiopian notario is called an “asterguami” or translator).  The notarios are known to embellish cases or to simply make up stories.  There is no regulatory authority (like a bar association) to police the notarios, and though their activity is illegal, they are rarely caught.  They also spread misinformation in their communities about how the asylum process works.  For example, there are persistent (and contradictory) rumors in the Ethiopian community that well-educated asylum seekers are granted asylum because the U.S. needs talented people and also that the outcome of an asylum interview is random, so a well-prepared application is superfluous. 

So what does all this have to do with immigration lawyers?

For one thing, when applicants have been educated by notarios in their communities to believe that the outcome of a case is random, or dependent on factors other than the fear of persecution, there is no incentive to hire a competent attorney.  Indeed, the incentive is to hire the least expensive attorney available.  Except in the case of non-profits or pro bono counsel, such attorneys are not likely to provide the highest quality service.  Since many aliens do not understand that a decent attorney can improve the chances for success in a case, incompetent attorneys are able to continue attracting clients despite a poor track record.  In this case, a mis-educated consumer is their best customer.

In addition, notarios can–to a large degree–control which attorneys their clients will hire after the notario loses the initial case and it is referred to an Immigration Judge.  The notarios (who are not lawyers and cannot go to court) refer their unsuccessful clients to certain attorneys.  As you might imagine, unscrupulous notarios refer their clients to unscrupulous attorneys.

The current efforts to crack down on notario fraud are a good start, but those efforts largely ignore non-Spanish speaking populations in general, and asylum seekers in particular.  Advocacy organizations and the government should do more to address this problem.  Stopping unscrupulous notarios will reduce asylum fraud and, indirectly, improve the quality of lawyers practicing immigration law.

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The Problem With Immigration Lawyers and How to Fix It, Part 2: Bar Associations

by Jason Dzubow

This is part two in a series of posts about the poor quality of immigration lawyers.  A recent survey of judges’ opinions found that 33% of immigrants had “inadequate” counsel and 14% had “grossly inadequate” counsel.  I previous wrote about how Immigration Judges could improve the situation by reporting incompetent and dishonest attorneys.  Indeed, according to Justice Department rules, IJs are required to report such attorneys.

Most bar complaints end up here (but at least they recycle).

Of course, reporting incompetent attorneys accomplishes little unless the disciplinary authorities–i.e., the state bar associations–actually impose sanctions where such punishment is appropriate.  Although a large number of practitioners have been disciplined, given the current state of affairs, the bar associations are not doing enough to protect immigrants.  Here are some thoughts on what bar associations could do to improve the situation:

– Bar associations should reach out to immigrant communities to help inform aliens about their right to competent counsel.  This means providing information–including information about how to report dishonest attorneys–to various immigrant advocacy groups and encouraging those groups to translate and disseminate the information.

– Given that immigrants are particularly vulnerable to unscrupulous lawyers, bar associations should pay close attention to complaints filed in immigration cases.  My sense is that the bar associations tend to protect lawyers, and that it is not easy to get disbarred (I hope I am not jinxing myself!).  Bar associations need to take complaints seriously and, in the case of vulnerable populations (minors, immigrants, etc.), need to thoroughly investigate allegations of bad conduct.

– Another issue is that certain bars–most notably New York and California–allow people with a foreign law degree to sit for the bar after they receive an LLM.  The requirements for admission to LLM programs are much less rigorous than for admission to JD programs, and thus graduates of these programs are not as familiar with the U.S. legal system as people who receive a JD degree at an accredited law school.  New York, at least, has taken some modest steps to improve this situation.

– A final–and more sweeping–idea is to create a separate immigration bar association and require membership in order to practice before all immigration agencies.  Volunteer immigration lawyers, who are knowledgeable about immigration law and who speak different languages, could serve on the disciplinary committee.  This way, aliens could file complaints directly to the immigration bar association, and those complaints would be reviewed by people familiar with the system and who (probably) speak the alien’s native language.  Also, an immigration bar association could require legal education and ethics training.

I don’t think we’ll see a mandatory immigration bar association any time soon, but I believe such an association would improve the quality of immigration attorneys.  For now, we will have to rely on state bar associations–however imperfect–to protect immigrants.

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Who Was Emma Lazarus?

by Jason Dzubow

Everyone knows her words:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door.

But if you are like me, you probably don’t know much about the woman who wrote these lines in 1883.  A new exhibit at the New York Museum of Jewish Heritage explores the life and times of Emma Lazarus. 

The words of Emma Lazarus continue to inspire.

The exhibit, Emma Lazarus: Poet of Exiles, marks the 125th anniversary of the dedication of the Statue of Liberty, and is the first major museum exhibition about Ms. Lazarus.  The exhibit includes rare artifacts that explore her unique story and message.  Emma Lazarus was a poet, playwrite, and novelist.  She also translated many works from Jewish poets into English.  She was a decendant of Portugese Sephardic Jews, who settled in the U.S. prior to the Revolutionary War.  Her family includes several prominent Americans, including Benjamin Cardozo, an Associate Justice on the U.S. Supreme Court. 

Ms. Lazarus was also an activist.  She taught Russian Jewish immigrants in New York and helped them become self supporting.  She also traveled twice to Europe.  When she returned from her second trip, she was very ill (probably with cancer), and she died two months later, in November 1887.  She was 38 years old.

The exhibit opened last month and runs until the summer of 2012.  To learn more, check out the museum’s website, here.  Also, if you would like to read more about Emma Lazarus, check this post in the Jewish Women’s Archive.

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Jewish Lawyers; Muslim Immigrants

by Jason Dzubow

There is a story told about a Jewish Holocaust survivor who was a prisoner at the Auschwitz death camp.  Every day, this man thanks G-d; each day more loudly and exuberantly than the day before.  Finally, the man’s fellow prisoners become annoyed with him: “How can you thank G-d,” they asked, “when we are in this place?  When the Nazis are daily murdering us and torturing us?”  The man replies: “I am thanking G-d because He did not make me like the Nazis.”

To me, this story represents a quintessential aspect of being Jewish.  Even in the face of the worst evil known to man, the Jew remains true to his values, to his morality, and to his faith.

Today we live in difficult, dangerous times.  The threat of terrorism looms ever present.  The most visible terrorists are Muslim extremists: Al Qaida, Hamas, Hezbollah, Al Shabaab.  They threaten America and the West.  They threaten Israel.

How, then, should American Jews–and specifically American Jewish lawyers–respond to Muslim immigrants and refugees coming to the United States?  This is an issue I face every day, as I represent many Muslims who are seeking political asylum from countries like Afghanistan, Pakistan, Iraq, and Iran.

Some Jewish lawyers have taken to attacking Islam and Muslims in the United States.  The most well-known example is probably David Yerushalmi, who is behind many state laws designed to protect our country from what he calls the infiltration of Sharia law.  Other Jews who are not lawyers (yes, I suppose this is to their credit) are also prominent in the anti-Islam movement in the United States.  Probably most well-known among them is Pam Geller, the blogger behind the “World Trade Center Mega Mosque” controversy.

I must admit that such people inspire in me strongly negative emotions.  But in the spirit of the season (and my rabbi’s Yom Kippur sermon), I will try to say my piece without criticizing them.  As the rabbi put it, I will try to tell  my truth with love.

First, I believe my fellow Jews’ opposition to Islam and Muslims is not consistent with Jewish values.  Our people have been on the receiving end of persecution for millennium.  We should not subject others to persecution, or even the implied threat of persecution, based on stereotypes.  Particularly since the Muslims who have come to the U.S. are often people who faced persecution or discrimination in their homelands (for this reason, they left).  As Rabbi Hillel famously said, “What is hateful to you, do not do to others.”

Second, I think such behavior is bad for the Jews and divisive for our community.  Like it or not, most Jews are liberals.  This stems from our religious teachings as well as our communal experience as a persecuted minority (for example, the Torah repeatedly reminds us to have one law for the alien and the native born, and not to mistreat the stranger, for we were strangers in Egypt).  We tend to sympathize with other minorities.  Hence, our disproportional representation in social justice movements.  The strident attacks on Muslims (a small minority in the U.S.) and the implication that Jews who disagree with such attacks are “self hating,” naive or traitorous is alienating to many Jews, and will ultimately weaken our community.

Finally, the attack on Islam and Muslims is a bad strategy.  Many Muslims look to the West and the United States as models for development.  The Arab Spring shows that many Muslims–perhaps a large majority–dream of democratic reforms, freedom, and free economies.  Closer to home, I represent many Muslims–journalists, human rights workers, advocates for women’s rights, people who worked with the U.S. military–who have risked their lives to help us in our fight against Islamic extremism.  By attacking all Muslims, we potentially alienate such people and lose valuable allies in our war on terror.

Jews are an argumentative, stubborn people.  There’s an old joke about a Jewish man who is stranded alone on a desert island.  When he is finally rescued after many years, his rescuers notice that he built two synagogues on the island.  When they ask him why, he points to one synagogue: “This is the synagogue where I worship.”  “And the other one?,” they ask.  “That one,” says the man,” I wouldn’t set foot in.”  In the new year, I hope we can be less divisive and more respectful of each other’s views.  I hope we can look for the good in others, and give people the benefit of the doubt, even people who disagree with us, or who are different from us.  L’Shana Tova.

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Dear Client: I am Not Your Mommy

by Jason Dzubow

Some clients just don’t get it.  No matter how often you tell them what evidence they need for their case, they bring you bupkis.

Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum.  I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc.  I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available.  If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it.  Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).

I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built).  I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.

Is all this excessive?  You would think so.  You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case.

Many clients do, in fact, make diligent efforts to get evidence in their cases.  It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves.  Such clients greatly reduce their chances for a successful outcome.

So what can be done about these slacker-clients?  One possibility, of course, is to do nothing.  If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may.  This does not seem like a very satisfactory solution, though.  For one thing, there may be a legitimate reason why the client is not cooperating.  Perhaps he does not understand what is needed or why such evidence is important.  Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case.  Maybe he fears that the people sending evidence will be endangered.  Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential.  For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience.

Another way to encourage clients to gather evidence is to nag them.  “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case.  In my practice, I don’t have a lot of extra time to chase after my clients.  I do, however, try to remind them once or twice about the need for evidence.

I find that giving the client a check list of needed documents is helpful.  When it comes time to remind them about gathering evidence, I always refer them to the check list.  It helps me remember their case as well.  A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.

Asylum seekers are not always the easiest clients.  As lawyers, we need to use our limited time efficiently.  That means informing the clients about the need for documents, and periodically reminding them about what is needed.  For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence.  And that could make the difference between a successful case and a denial.

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Telephonic Interpreters

by Jason Dzubow

Without interpreters, the asylum system could not function. 

For interviews at the asylum office, applicants must provide their own interpreter, either a friend, a volunteer, or a paid professional.  To ensure that the interpretation is accurate (and that there is no funny business going on in the translation), USCIS requires that a professional interpreter monitors the interview by phone.  Who are these mysterious monitors?

One is Maria McFadden, interpreter extraordinaire, who works in the Washington, DC area and beyond.  Here are her thoughts on telephonic interpretation:

One of the most challenging tasks for an interpreter is telephonic interpretation.  While court interpreters aspire to be unobtrusive in order to allow each party to have their say, being able to observe or signal the speakers can make communication flow much more easily.

When using a telephonic interpreter, be sure to speak loudly into the phone.

During interviews at the asylum office, telephonic interpreters are rarely used to interpret the actual proceedings; rather, they serve as monitors.  The role of these monitor interpreters is to ensure the quality and accuracy of the on-site interpreter.  Oftentimes, the person brought to the interview to serve as an interpreter is not a professional.  While such a person might be aware of and adhere to the interpreter code of ethics, their ability to interpret is sometimes not sufficient to ensure an accurate translation.  This could damage the credibility of the asylum applicant and deprive her of the chance to tell her story.

At times, the monitor might “challenge” the interpretation.  This could cause the on-site interpreter to become flustered and become defensive.  If he/she feels that their interpretation is correct, they should state so to the officer and not directly to the monitor.  Each interpreter has the right to stand by their interpretation and it is up to the officer to settle the matter.

Being a monitor is not an easy task and most interpreter’s take the job seriously.  If you feel that the monitor is being unnecessarily disruptive and combative, this issue should be addressed to the asylum officer.  There is no need to talk to the monitor interpreter.

If you have a telephonic interpreter, please keep the following points in mind:

1. Keep your voice loud and clear.  While this is important when working with an on-site interpreters as well, it is even more important over the phone.
2. Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
3. Try not to talk over other people.  The interpreter can only translate for one person at a time.  Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other.  This could result in a statement by the applicant going unheard by the asylum officer–with potentially disastrous consequences.
4. Wait for the interpreter to finish interpreting before making another statement or asking a question.
5.If you don’t hear or can’t understand the interpreter, speak up!

By keeping this short list of pointers in mind, the process will go more smoothly for all involved. 

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New BIA Decision Will Harm Asylum Seekers

by Jason Dzubow

I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges.  But the Board’s latest decision makes me think I should be more careful what I wish for.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him.  Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.

Not surprisingly, this decision has been roundly condemned by immigration advocates.  The American Immigration Counsel had this to say:

For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.

Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum.  In some ways, though, this decision might impact asylum seekers more severely than other immigrants.

I'd hate to see what the BIA would say about this interrogation.

For one thing, asylum cases often depend on an alien’s credibility.  If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony.  I’ve seen this happen to some of my clients.  They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency.  I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States.  Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker.  The E-R-M-F- decision will only exacerbate this problem.

Further, asylum seekers tend to be vulnerable people.  Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers.  Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer.  For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers.  Again, the Board’s new decision is the exact opposite of what these people need.

My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility.  My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.

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ICE Should Fire Insubordinate Agents

by Jason Dzubow

I wrote recently about the ongoing insubordination at ICE.  The most recent flare up involves a dispute over a new memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.  The memo basically prioritizes who should be deported and directs ICE to target criminals and people who pose a security threat over aliens with equities in the U.S.  I read the memo, and it is pretty non-controversial.

Where's Trump when we need him?

The ICE Union disagreed and posited that the memo was a backdoor amnesty (this despite the fact that the Obama Administration has been deporting record numbers of illegal aliens and, as these statistics show, has re-prioritized deportations to focus on criminal aliens).  Chris Crane, President of the National ICE Counsel, had this to say about the memo and the Obama Administration:

Any American concerned about immigration needs to brace themselves for what’s coming… this is just one of many new ICE policies in queue aimed at stopping the enforcement of U.S. immigration laws in the United States. Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.

In my prior post, I tried to give the Union the benefit of the doubt, even though their claim seemed unfounded.  Now, several immigration experts, including a former general counsel of INS under President George W. Bush, have reviewed the controversial memo.  They conclude that the memo is “perfectly consistent with existing law on the use of prosecutorial discretion and serve[s] to guide its sound exercise in immigration law enforcement decisions.”

The experts’ conclusion–and a plain reading of the controversial memo–makes it painfully obvious that the Union’s complaints are baseless.  Worse, the attacks, such as the quote from Mr. Crane above, seem blatantly partisan in nature.  

It is frankly shocking that ICE and DHS would tolerate this type of insubordination.  My guess is that the Administration is too cowed by right wing bullies to do anything about the problem (witness the Shirley Sherrod fiasco).  It’s past time for the Obama administration to stand up to this sort of nonsense.  ICE should fire the insubordinate agents immediately.

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