Trigger Warning: This post contains a lot of curse words.
What’s the reason for the forthcoming salty language? It’s because we immigration lawyers work in a system that is utterly broken, and in order to make any progress at all for our clients, we need to hold our tongues and remain professional with our government colleagues.
Immigration Judges, court staff, DHS attorneys (the prosecutors in Immigration Court), USCIS officers, and Asylum Officers all have a lot of power over our clients’ lives. Losing our temper with these people rarely results in good outcomes for our clients, and so we attorneys must practice forbearance. We often can’t say what we are thinking for fear of jeopardizing our clients’ cases. But today, I propose to throw off the veil of civility and say what’s on my mind. (more…)
If you follow tech news, you probably know about Chat-GPT, an artificial intelligence (AI) program that has been writing college essays, designing buildings, and even crafting condolence emails after mass shootings. Just last week, we learned that this program “can now outperform most law school graduates on the bar exam, the grueling two-day test aspiring attorneys must pass to practice law in the United States.” The test consists of multiple choice and essay questions, and Chat-GPT’s score placed it “in the 90th percentile of actual test takers,” which “is enough to be admitted to practice law in most states.”
Perhaps in an effort to make lawyers feel better, the “National Conference of Bar Examiners, which designs the multiple choice section, said… that attorneys have unique skills gained through education and experience that AI cannot currently match.” “Currently” being the operative word.
While I do not expect to lose my job in the immediate future, I can see areas of immigration law where AI would be able to assist attorneys and increase efficiency. And I can also imagine a future where AI takes over many, if not all, tasks performed by attorneys, Asylum Officers, and Immigration Judges. (more…)
A recent op-ed in the Wall Street Journal (“Immigrants Need Better Protection–From Their Lawyers” by Professor Benjamin Edwards) laments the poor quality of immigration attorneys, and postulates that as a group, “the private immigration bar now contains the worst lawyers in all of law.”
It’s easy to know which barber to choose (hint: Barber A), but finding a good immigration lawyer can be more challenging.
The author’s primary solution to the problem of “incompetent” and “predatory” lawyers is to track the success rate of each attorney and then make that information public. In this way, potential customers (i.e., people being deported) can make more informed decisions about their choice of counsel.
Among practicing lawyers, Prof. Edwards’s solution was largely panned as unworkable, ivory-tower thinking. While I generally agree that there is a problem (which I’ve written about in a charmingly-titled piece called, Do Immigration Lawyers Suck?), I also agree with my colleagues that Prof. Edwards’s solution is unworkable (if you’re interested in why it is unworkable, here are some thoughts from Jennifer Minear at AILA).
While some immigration lawyers are less-than qualified for their jobs, it is none-the-less true that having a lawyer for an asylum case significantly increases the likelihood of a good outcome.
A new report from TRAC Immigration provides some specific data about asylum cases and representation. The report breaks down the statistics by country, which is quite helpful, as asylum seekers can look for their country, get a sense for how many of their landsmen are represented, and see the success rate for represented and unrepresented applicants. The report covers Immigration Court cases only (from FY 2012 to FY 2017), and does not include cases at the Asylum Office.
The bottom line is this: For almost all countries, asylum applicants with lawyers are two to four times more likely to win their cases in court, as compared to unrepresented applicants from the same country. There are, of course, some caveats.
One is that, people with good cases are more likely to have attorneys. This is because people with money, educated people, and people who speak English all have an advantage navigating the U.S. immigration system. Such people are more likely to find a lawyer, and they are also more able to present their cases. People who are detained, who are not educated, and who do not speak English will have a harder time presenting their cases, and will also be less able to obtain representation. In that sense, I think the statistics exaggerate the benefits of having an attorney.
But even considering these socio-economic factors, the difference between represented and unrepresented applicants is pretty significant, and in the face of these statistics, it’s hard to argue that lawyers don’t help, Prof. Edwards not-with-standing.
What’s also interesting here is that lawyers provide a multiplier effect on the likelihood of winning. So, for example, an unrepresented case from China has about a 21% chance of success, while a represented case has about an 82% chance of success—a difference of almost four times. And, of course, 82% is a lot better than 21%. A case from El Salvador, on the other hand, has only about a 4% chance of winning without a lawyer, but has almost a 17% chance for success with a lawyer—again, a difference of four times, but in absolute terms, the difference of 4% versus 17% is a lot less significant than 21% versus 82%. Put another way, when the average Chinese applicant hires an attorney for her asylum case, she appears to be getting a lot more for her money than the average Salvadoran applicant.
Why should this be? Why should a lawyer multiply the chances of winning rather than increase the likelihood of victory arithmetically by, say, 10 percentage points across the board (so that the Chinese applicant would go from a 21% chance of success to 31%, and the grant rate for Salvadorans would increase from 4% to 14%)?
The short answer is that I don’t know. Maybe one explanation is that asylum seekers from certain countries present claims that more easily fit within the legal parameters of our asylum system. So cases from China—which often involve political or religious persecution—are more amenable to a grant than cases from El Salvador, which often involve a fear of harm from criminals. Our asylum law quite clearly protects people fleeing religious or political persecution, but it offers little for people fleeing crime. Under this theory, lawyers representing Chinese applicants can help ensure that their cases are presented in a manner that meets the requirements for asylum. It is more difficult to do this for Salvadorans. Or put in more classic terms, even a great lawyer can’t make a silk purse from a sow’s ear.
Another interesting tidbit from the TRAC numbers is the level of representation in each community. Almost 96% of Chinese applicants had attorneys. Contrast that with Salvadorans, who were represented in only about 73% of cases. Looking at the top 10 source countries for asylum seekers, Haiti had the lowest rate of representation—only about 56% of Haitian asylum seekers had lawyers.
Finally, while it may be somewhat early to discuss trends since President Trump took the helm, the numbers for FY 2017 show an increase in the absolute number of asylum cases decided by Immigration Courts (from 22,312 in FY 2016 to 30,179 in FY 2017) and in the percentage of asylum cases denied (from 56.5% denied in FY 2016 to 61.8% denied in FY 2017). While these numbers are not encouraging, the upward trend in asylum denial rates actually began in FY 2012, under President Obama (denial rates have steadily risen from 44.5% in FY 2012 to 61.8% today).
So what are asylum seekers to make of all this? It seems to me that the most important take-away is that a lawyer in court can significantly increase the likelihood of success, as long as that lawyer is competent and makes an effort to help you with your case. I’ve written previously about the cost of a lawyer, and what the lawyer should do for you. I’ve also written about how to find a free lawyer if you cannot afford to hire one. If you are careful, if you ask questions, and if you make an effort to find an effective attorney, you can greatly increase the possibility of winning your asylum case in court.
To work as an asylum attorney in the era of the backlog, you need to be either an optimist or a masochist. And I’m no optimist. But, as they say, “Fake it until you make it.” In that spirit, and in the hope of better things to come in the Year of Our Lord 2015, I present 10 predictions for the new year that hopefully will make you–and more importantly, me–feel better about the future of asylum:
“Sorry kids, you can check in, but you can never leave.”
1. The BIA will create a new social group–Backlogged Asylum Seekers: This year, the Board will determine that people stuck indefinitely in an asylum backlog are a Particular Social Group, and that waiting for eternity constitutes persecution. Therefore, anyone in the backlog will automatically receive asylum. Backlog solved. Badda-boom, badda-bing.
2. Detained children: DHS will use the power of Eminent Domain to seize Disney World and convert it into a large open-air prison for children and families. Surprisingly, this will save the U.S. government over $1.7 billion. Since the estimated cost of caring for approximately 60,000 children is $1.8 billion, and a Disney season pass is only $634 per person, the total cost to the U.S. tax payer for “Dis-catraz” will be just over $38 million, a savings of almost 98%.
3. One year asylum bar: After holding rational debate, politely questioning witnesses, and carefully examining evidence, Congress will conclude that American asylum policy is not well served by continuing the one-year bar. A bi-partisan Congress will vote to eliminate the bar, and the President will sign the bill into law. Fox News will provide respectful coverage of the issue, and Michelle Malkin will refer to undocumented immigrants as–wait for it–“human beings.”
4. EOIR attorney registry: In 2015, EOIR will actually do something with the attorney registry. I predict that prior to December 25, 2015, EOIR will send every registered lawyer a lovely holiday card. Each card will personally thank us for representing immigrants and will be signed by the Chief Immigration Judge himself. ICE attorneys will be disappointed when they do not receive holiday cards.
5. Eliminate Leap Years: This may not seem asylum-related, but hear me out. I predict that Congress will eliminate leap years in order to speed up court dates. This means that all my Immigration Court cases scheduled for 2027 will be heard 3 days early. On the downside, any case scheduled for February 29 will be re-set to 2042.
6. Following to join: Anyone with children knows that you sometimes need a break from them. That seems to be the reasoning behind the long wait times for I-730, Refugee/Asylee Relative Petitions. “Let’s give these poor refugees a nice long break from their children and spouses,” the well-intentioned designer of the I-730 process reasoned. But as it turns out, a year-long break (or more) is a bit much for most people. So I predict that in 2015, the I-730 process will be reformed so that it takes less than three months. Once the kids are here, if they need a break, the refugees can always hire a babysitter.
7. Persecutor bar: The persecutor bar will be immediately applied to all current and former members of the U.S. government. Anyone who is a persecutors or who provided “material support” to persecutors will be deported. I wonder whether we will be able to find a country willing to accept so many dangerous persecutors.
8. A new definition of Particular Social Group: Most observers, including this one, believe that we are closer to a Unified Field Theorem than we are to a coherent definition of PSG, but I predict that in 2015, the BIA will come up with a workable, understandable, and fair definition of Particular Social Group. I also predict that someone (probably an immigrant) will discover a simple mathematical formula that explains everything in the universe.
9. Filing for asylum will confer immediate status: Although it is fun in a Thunderdome-sort-of-way to watch asylum seekers struggle to survive for six months without a work permit or a driver’s license, I predict that Congress will change the law to allow asylum applicants to immediately obtain employment authorization and a driver’s license. So starting in 2015, applicants will be able to engage in such extravagant activities as driving to work, picking their children up at school, and earning money to eat.
10. USCIS Phone System: Thanks to billions in savings from sending all the detained children to Disney World, the government will hire enough telephone operators to answer all calls to the USCIS call center. The operators will be trained to provide substantive, helpful answers, and to make corrections to cases where necessary. Also, much like a PBS telethon, some of the operators will be celebrity guests. I suggest Dave Barry. He’s reasonably funny, and except for his end-of-the-year reviews, his schedule is pretty open.
So as you can see, 2015 looks to be a banner year for asylum lawyers and our clients. I hope to see you there.
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.
According to the EOIR website’s List of Currently Disciplined Practitioners, almost 400 immigration attorneys (397 by my count) have been seriously disciplined since 2000. What I mean by “seriously disciplined” is suspended or expelled from the practice of law. The list does not include attorneys who have been subjected to lesser punishments, such as “reprimands” or “admonishments,” whatever those are.
Last I heard, there were around 10,000 attorney-members of AILA, the American Immigration Lawyers Association, but it is unclear how many other attorneys practice immigration law. Assuming (and it is a big assumption) that AILA represents 50% of all immigration attorneys; there are about 20,000 immigration attorneys nationwide. If 400 of them had been suspended, that means that about 2% of all immigration attorneys have been seriously disciplined.
Even these guys would have a hard time getting suspended.
Depending on your point of view, maybe 2% is a lot, or maybe it is a little. Call me a pessimist, but if I hire someone to assist me with one of the most important endeavors in my life, and there is a 2% chance that that person is a crook, I would feel a bit uneasy. If 2% of pilots were incompetent, I doubt many people would fly.
But my guess is that the problems are worse than the numbers reveal. For one thing, it’s not easy to get suspended or expelled from the practice of law. I once filed a bar complaint against an attorney for lying to my client, stealing his money, and getting him ordered deported (the complaint was a required part of the process to get the case reopened). We had all sorts of documentation proving this attorney’s incompetence and maliciousness. The Bar Association found that she had violated the Rules of Professional Conduct, but declined to punish her because there were “special circumstances.” Ironically, the “special circumstances” were that she had already been punished for destroying the cases of two other people. So, in other words, she was saved from punishment by her own prior bad acts. It’s ridiculous, but it helps illustrate how difficult it is to get suspended. Nevertheless, 400 of my fellow immigration attorneys have managed to do so.
Another problem is that immigrants–particularly illegal immigrants–are unlikely to report bad attorneys. Many immigrants do not speak English and are not familiar with their rights. They do not know how to report attorneys. Also, they might be afraid to report attorneys.
For these reasons, my guess is that the 400 attorneys on the EOIR list represents only a fraction of the incompetent and/or dishonest immigration attorneys who are practicing law today.
Of course, the vast majority of immigration attorneys are caring, competent, and honest. Most (if not all) attorneys I know have worked long hours for little or no pay to help clients in need. Immigration law is usually not the most lucrative field, and most attorneys practice in this area because we want to help people fleeing persecution or reuniting with family or making a better life. I do think we have a responsibility to report bad conduct when we see it, and to encourage people who have been harmed to file complaints where appropriate. Bar associations should also be more aggressive in enforcing the rules. In this way, we can protect our clients and improve the profession.
