It is the job of a lawyer to learn about your situation and then advise you of your options. You want to know, “If I do X, what will happen?” In many areas of the law, attorneys can provide this type of advice. If you rob a bank and get caught, you will go to jail. If you sign a contract and then breach your agreement, you will be liable for damages. If you fail to pay taxes, you will face criminal and civil penalties.
But in immigration law–and particularly in asylum law–it is often impossible to provide precise advice. The unfortunate fact is that asylum seekers must live with significant uncertainty. (more…)
Let’s say you’ve found a lawyer–either based on a friend’s recommendation, through an internet search or maybe from an ad you saw on the bus–and you’ve arranged for an initial meeting. How should you prepare for this meeting and what should you expect?
There are a few purposes for an initial consultation. First, the lawyer should evaluate your case, discuss strengths and (especially) weaknesses, and help you understand your options. Second, you need to know whether the lawyer can assist with achieving your goals. And finally, you need to decide whether the lawyer is right for you. Here, we’ll discuss the initial consultation (affectionately called a “consult”) and hopefully help you get the most out of that meeting. (more…)
The Associated Press recently reported that DHS will implement a “limited experiment” to provide detained migrants at the border with “access to legal counsel.” The new approach will start with a “tiny number of migrants,” and then perhaps expand from there. DHS is partnering with an as-yet-unnamed organization to supply the attorneys, who will help with credible fear interviews (initial evaluations of asylum eligibility for newly arriving migrants). The program is part of DHS’s efforts to accommodate the end of Title 42, which had restricted the number of people eligible to seek asylum at the U.S.-Mexico border, and which is expected to wrap up in a few weeks.
This new “limited experiment” calls to mind the ongoing effort by advocates to create an immigration public defender’s service, which would provide everyone in Immigration Court access to a lawyer. These efforts have not made much progress, and currently, very few noncitizens in Immigration Court receive a government-appointed attorney.
Here, I want to discuss the benefits of universal representation for asylum seekers, including those in court and at the Asylum Office. I also want to suggest an alternative to representation by lawyers, who are expensive and relatively scarce. (more…)
The Trump Administration came into office with the express goal of tightening rules related to asylum eligibility. Their efforts have resulted in reduced due process protections for asylum seekers, along with increased evidentiary burdens. Since the advent of the COVID-19 pandemic, the Administration’s anti-asylum rule making has gone into overdrive. If recently proposed regulations go into effect, asylum seekers could be denied protection simply for having passed through a third country or for having failed to pay taxes. Worse, these new rules will likely apply retroactively, thus potentially disqualifying some asylum seekers for choices they made years ago. While the asylum process was never easy, all these recent changes have made it much more difficult to successfully navigate the system, especially for those without legal representation. Here, we’ll review some data about asylum grant rates, discuss the process of seeking asylum, and talk about how a lawyer can help.
Data on Asylum Seekers
Unfortunately, it has never been easy to obtain solid statistics about asylum grant rates. One problem is that different asylum cases are adjudicated by different agencies. “Affirmative” asylum cases (where the applicant is inside the United States and initiates a case by submitting an asylum form) and “credible fear” cases (where the applicant presents at the border and requests asylum) are adjudicated by the Department of Homeland Security, by an asylum officer. “Defensive” cases (where the applicant requests asylum as a defense to being deported) are adjudicated by an immigration judge at the Department of Justice. Different agencies track data differently, so we do not have solid statistical information about overall grant rates. But we do have some pretty good data demonstrating that asylum grant rates are trending down and that having a lawyer helps.
According to TRAC Immigration, a nonprofit that collects and analyzes data from our nation’s immigration courts, pro se asylum applicants in 2019 and 2020 were granted asylum in about 13 percent of cases. During the same period, represented applicants received asylum in about 30 percent of cases. So, having a lawyer more than doubles the likelihood of a positive outcome. Also, the data indicates that it is getting more difficult to win asylum. In 2012, about 55 percent of asylum cases (represented and pro se) were granted. Since then, grant rates have dropped—to 41 percent at the beginning of President Donald Trump’s term and to about 25 percent by March 2020.
The world’s most powerful superheroes (pro bono attorney, second from right).
The Asylum Process
As noted above, there are two basic paths to asylum: affirmative and defensive. In addition, asylum seekers who arrive at the border or an airport and request protection undergo a credible fear interview, which is an initial evaluation of eligibility for asylum.
In an affirmative case, the applicant completes a form and an affidavit describing his fear of harm, gathers and submits evidence in support of the claim, and is eventually interviewed by an asylum officer. For a defensive case, the applicant typically appears before an immigration judge two times. The first appearance is called a master calendar hearing, which only takes a few minutes. At that stage, the judge determines whether the applicant is “removable” from the United States and what relief she is seeking (asylum and/or other types of relief). The judge then sets a date for the individual hearing (the trial), where the applicant presents her claim for asylum through evidence and testimony. Neither process is fast, and it is common for an asylum case to take several years.
A credible fear interview is more truncated. Most applicants have little or no evidence when they first arrive, and so their testimony becomes more important. If they demonstrate a “credible fear” of persecution in their home country, they are referred to an immigration judge to present a defensive asylum case. If they do not demonstrate a credible fear, they are usually quickly deported from the United States.
Preparing an asylum case—affirmative or defensive—can be challenging. The attorney needs to work with the client to write a detailed affidavit describing the asylum claim. This often involves discussing painful events from the client’s past. Obtaining evidence from other countries can also be difficult, as witnesses are overseas and may be reluctant to risk their safety by writing a letter or sending documents. In preparing a case, the attorney needs to resolve any inconsistencies between the affidavit, evidence, and country conditions, since inconsistencies can lead to a finding that the applicant is “not credible.” Also, the attorney must articulate a legal theory for the case; not everyone who fears harm in the home country is eligible for asylum, and so the attorney must examine the facts and determine the basis for eligibility. Finally, some applicants may be barred from asylum—for example, because they failed to timely file their application—and so the attorney must identify and address any legal bars to asylum.
How Pro Bono Lawyers Can Help
All this can be daunting, even for a lawyer who specializes in asylum. So, how can a pro bono attorney—who may not be familiar with this area of the law—help?
On this front, the news is good. Most asylum cases are relatively straightforward, and anyone with legal training and a bit of guidance can make a positive difference in the outcome. Also, excellent support and mentoring is available for lawyers who decide to take on a case pro bono. In representing asylum seekers, most pro bono lawyers work with a nonprofit organization, and these organizations are expert at identifying compelling cases and providing support to attorneys who do not specialize in asylum. (For some ideas about where to volunteer, check out these immigration nonprofits). Finally, while asylum cases can take years (due to government delay), the amount of attorney time needed to properly prepare and litigate a case is quite reasonable. Total prep time for a case is usually between 15 and 30 hours. For an affirmative case, applicants have only one interview, and those usually take three to five hours. Court cases usually involve two hearings: The master calendar hearing might involve waiting around for an hour or two, but the hearing itself requires only about five minutes with the immigration judge. The individual hearing (the trial) typically takes two to four hours. So, all together, the time investment is not terribly burdensome.
As for credible fear interviews, because they are not full cases and because they take place within a day or two of the applicant’s arrival in the United States, they require even less attorney time. In some cases, there is no time to prepare in advance, and the attorney’s role is simply to make sure that the asylum seeker’s interview is fair. Other times, it is possible to gather country condition evidence or other evidence in advance of the interview.
What’s It Like to Do an Asylum Case?
Having myself represented hundreds of asylum seekers, what keeps me interested are the clients’ stories. Of course, many of these stories are sad, but they are also hopeful. Asylum seekers are survivors. They have escaped danger in order to build a better life. Many asylum seekers are well-educated, successful people: politicians; activists for democracy, women’s rights, or LGBTQ rights; interpreters who’ve served with the U.S. military; members of religious or ethnic minorities; journalists. Asylum seekers I have known tend to be very patriotic towards the United States, and my clients’ faith in the American Dream is a source of constant inspiration for me.
The asylum process today is more difficult than ever. Many applicants with valid claims will be denied and deported unless they have help from an attorney. Equally important, applicants need someone in their corner to answer questions and provide moral support. Representing an asylum seeker pro bono can help change your client’s life. It can also be one of the most rewarding experiences of your legal career.
This article is by Jason Dzubow and was originally published in GPS Solo, Volume 9, Number 12, July 2020. Copyright 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
“The first thing we do, let’s kill all the lawyers.” So says Shakespeare’s Dick the Butcher in Henry VI Part 2. Dick is advising a pretender to the throne about how to seize power. The idea is, if we get the lawyers out of the way, the lawless can prevail. Four hundred years later, it’s still good advice: If you want to violate the law, you have to somehow neutralize those who are sworn to uphold it. In recent weeks, we have seen two different governments–Iran and the United States–take steps to intimidate and marginalize attorneys who are perceived as obstructing their goals.
The more vicious case is taking place in Iran, where “prominent Iranian human rights lawyer and women’s rights defender Nasrin Sotoudeh [was sentenced] to 33 years in prison and 148 lashes.” This is on top of an earlier in absentia sentence of five years imprisonment. Her “crimes” include “inciting corruption and prostitution, openly committing a sinful act by… appearing in public without a hijab, and disrupting public order.” Ms. Sotoudeh has long been a peaceful advocate for women’s rights and against the death penalty, and Amnesty International writes that her punishment is the “harshest sentence” that the organization “has documented against a human rights defender in Iran in recent years, suggesting that the authorities – emboldened by pervasive impunity for human rights violations – are stepping up their repression.”
According to the Mullah Report, Nasrin Sotoudeh is guilty of obstructing injustice.
This is an important point–the actions of the Iranian government do not occur in a vacuum. They are part of a malignant pattern of torture, harassment, intimidation, and murder of peaceful political opponents. The obvious purpose of this terror campaign is to keep hold of political power and intimidate dissenters into silence. And of course, Ms. Sotoudeh is not alone. As the U.S. State Department notes, “hundreds of others” are also “currently imprisoned simply for expressing their views and desires for a better life.”
Commenting on Ms. Sotoudeh’s case last summer, the U.S. State Department said, “Ms. Sotoudeh has spent the past several years harassed by the Iranian regime and has been routinely placed behind bars for daring to defend the rights of those in Iran.” “We applaud Ms. Sotoudeh’s bravery and her fight for the long-suffering victims of the regime.” A State Department spokesperson called Ms. Sotoudeh’s more recent sentence “beyond barbaric.”
I agree. But unfortunately, it’s more difficult for us to condemn Iran and claim the moral high ground when our own country is also intimidating and mistreating human rights attorneys. The extent of our malfeasance is not equal to what we see in Iran, but it’s not what we expect from the United States either.
Earlier this month, NBC News reported that “Customs and Border Protection [or CBP] has compiled a list of 59 mostly American reporters, attorneys and activists who are to be stopped for questioning by border agents when crossing the U.S.-Mexican border at San Diego-area checkpoints, and agents have questioned or arrested at least 21 of them.” CBP claims that the people on the list “were present during violence that broke out at the border with Tijuana in November and they were being questioned so that the agency could learn more about what started it.” The ACLU calls the government’s actions an “outrageous violation of the First Amendment,” and argues that the “government cannot use the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”
According to the NBC News report, several lawyers have been targeted. They have been held for hours in secondary inspection, questioned, had their cell phones searched, and–in at least one case–been accused of “alien smuggling,” which is a serious crime. Referring to the NBC News report, one attorney said that it “appears to prove what we have assumed for some time, which is that we are on a law enforcement list designed to retaliate against human rights defenders who work with asylum-seekers and who are critical of CBP practices that violate the rights of asylum seekers.”
Another lawyer described his brief detention at the border. CBP officials told him that “their job is to investigate terrorism and criminal activity on the border” and they asked him questions about the work he does, the organization he works for, and how the organization gets funded. They also asked him for his cell phone, which he handed over and unlocked. “I have nothing to hide,” the lawyer said. “I’m not a criminal. I’m not a terrorist. I’m just doing my job as an American citizen.”
The effect of these tactics is not simply to frighten and inconvenience the lawyers who are stopped at the border (and to potentially violate attorney-client privilege). Targeting lawyers (and others) in this manner also has a chilling effect on anyone who might be inclined to assist migrants and try to protect their legal rights. One lawyer, speaking on condition of anonymity, said, “I was going to go [to Mexico] this week, but I had to worry about whether I could get back in [to the United States].”
Being detained for a few hours and questioned is not the same as being sentenced to lashes and imprisoned for decades. However, the treatment of attorneys in the U.S. and Iran has something in common: It is designed to prevent people from exercising their rights as human beings by reducing their access to legal representation. Whether those people are migrants seeking asylum or women seeking equality, they are entitled to attorneys to assist them in securing their legal rights.
I agree with the U.S. State Department’s assessment of Ms. Sotoudeh’s case. She should not be punished for “daring to defend the rights of those in Iran.” But neither should U.S. attorneys be punished for daring to defend the rights of those lawfully seeking asylum in the United States. Our country should be setting an example for the world. We should not be lowering ourselves to the level of one of the worst human rights abusers on earth.
Asking a lawyer whether you need a lawyer for your asylum case is kind-of like asking a pastry chef whether you should have dessert. My answer: Of course you should hire a lawyer, and have a double helping of Windsor Torte while you’re at it.
A decent lawyer can help you prepare and present your case, and increase the likelihood of a successful outcome. However, there are some people who need a lawyer more than others, and if your resources are limited, you will have to decide how best to prioritize your needs.
“I don’t need a doctor – I’ll fix it myself!”
So how do we know that a lawyer actually improves the chances for success? And who really needs a lawyer, anyway?
First, there has been at least one statistical analysis of how lawyers impact asylum cases, and the result is pretty definitive: Lawyers matter. A study of asylum decisions in Immigration Court by TRAC Immigration finds that, on average, asylum applicants with a lawyer win about 51.5% of their cases. Asylum applicants without a lawyer win only about 11% of their cases (the effect was even more disparate for “priority” cases involving women and children). That’s a big difference, but there are a few caveats to these numbers.
For one thing, the cases reviewed in the study were in court. Such cases are adversarial, and can be procedurally complex, as compared to cases before the Asylum Office. Thus, it is harder for an unrepresented applicant in court to win his case. Also, some applicants receive pro bono (free) legal assistance. However, it is more difficult to get a pro bono attorney if you have a weak or meritless case (or if you have criminal convictions). This creates a vicious cycle, where applicants with bad cases are less likely to receive legal representation, and I think it probably skews the statistics, making it appear that people without lawyers are more likely to lose their cases (since people with weak cases have a harder time finding legal representation). Even considering these factors, it does appear that competent representation makes it more likely that an applicant will be granted asylum.
But if you are like many asylum seekers, you have limited resources. Attorneys can be expensive, and pro bono representation can be difficult to secure. So who really needs an attorney, and who can get by without one?
If your case is before an Immigration Court, it is best to have a lawyer. Most judges will pressure you to get a lawyer, and they will usually give you an extension of time to find an attorney. Court cases are adversarial, which means that if the ICE attorney aggressively opposes relief, it can be very difficult—even for an applicant with a strong case—to effectively present his case, avoid any pitfalls, and obtain a grant.
For applicants whose cases are before the Asylum Office, the story is a bit less clear-cut. Asylum Office cases are (supposedly) non-adversarial. The procedural requirements are generally (but not always) less stringent. Many people prepare their cases and attend the asylum interview without the help of a lawyer (some use paid “translators,” with mixed degrees of success), and there are many examples of pro se (unrepresented) applicants who receive asylum. There are, however, some red flags, which, if present, militate in favor of hiring an attorney.
Asylum applications may be denied if they are not filed within one year of the alien’s arrival in the U.S. There are exceptions to this rule, but if you are filing for asylum more than a year after you’ve come to the United States, it is a good idea to have an attorney.
Asylum applications can also be denied if the applicant has been convicted of a crime, or if the applicant “persecuted” others in her home country (or elsewhere). If you’ve been convicted of a crime, or if you fall into a category where the U.S. government might suspect you of persecuting others (such as police officers, members of the military, members or supporters of armed groups), you should have a lawyer.
In addition, people who provided “material support” to terrorists are barred from asylum. Unfortunately, that covers a broad range of activities. So if you’ve given money or any type of support to a terrorist group—even if you did it under duress—you need a lawyer. Doctors who treated combatants fall into this category.
Other issues that might require the help of an attorney include travel back to the home country (especially after an instance of persecution), or living in a third country before coming to the United States.
Finally, to win asylum, the applicant must show that she faces persecution “on account of” race, religion, nationality, political opinion or particular social group. If you do not obviously fit into one of these categories, it is helpful to have an attorney, who can make a legal argument that your case falls into a protected category, and that you are thus eligible for asylum.
Even if there are no obvious issues in your case, a lawyer’s advice can be helpful. Sometimes, there are problems in a case that are not apparent until a lawyer reviews it. You are far better off identifying and addressing such issues before they become a problem. For those who cannot afford an attorney, or who choose to do their cases pro se, it is possible to win. But some cases are more difficult to win than others, and-especially for these problem cases—the help of a competent attorney can make all the difference.
This week marks the beginning of Passover (called Pesach in Hebrew), the holiday celebrating the Jewish people’s liberation from slavery in Egypt.
In some ways, the story of Passover is the quintessential refugee story: A persecuted people flees oppression, undergoes a long, transformative journey, and arrives in a new land. Of course there are some unique twists: G-d directly intervenes to save the Israelites and ultimately transform them into the Jewish people, and–for a change–the persecutors get their comeuppance (there’s quite a bit of smiting in the story).
The Baal Shem Tov’s stories are the Besht ever.
Like most Jewish holidays, over the years, many traditions and stories have been incorporated into our celebration. One of my favorite stories involves the tradition of welcoming the prophet Elijah—who heralds the coming of the Messiah—into our homes by opening our door near the conclusion of the Passover meal (called a Seder). Here is my favorite Elijah story. It originates with the Baal Shem Tov, also known as the Besht, a Jewish spiritual leader from the eighteenth century, and comes to me via the late writer Leonard Fein (who apparently heard it from his mother, an eighth-generation descendant of the Besht himself):
It happened that a Hasid (a disciple of the Besht) came one day to the master and said: “I don’t understand. Every year, we have a wonderful Seder, we do everything we have been instructed to do, and every year, we open the door for Elijah — and he never arrives. How can this be? I feel we are spurned.”
The Besht considered his disciple’s complaint, and then told him to load a wagon with food, wine, matzos, and also clothes and gifts for the children, and travel to a certain hut in a nearby village and spend the first two days of Pesach with the destitute family that lived there; it was there that he would certainly see Elijah.
The Hasid followed the Besht’s instructions punctiliously, and the next morning he arrived at the dilapidated hut in the nearby village. He was greeted warmly, his gifts were accepted with tears of gratitude, and that night, the entire family — mother, father, five children, along with their surprise guest, celebrated Pesach together.
Yet when the door was opened for Elijah — no Elijah.
Bitterly disappointed, the Hasid returned to the Besht and told him what had happened — and, more important, what had not happened. The Besht explained that Elijah must have been delayed, but that at Pesach time next year, the Hasid would surely encounter him. So he must at the time of the holiday return to the hut, once again with a wagon filled with food and gifts — but this time, before knocking on the door, he must first eavesdrop on the goings-on within the hut.
The next year at Pesach, the Hasid did as told, putting his ear to the door before knocking. He heard the mother’s lament: “We have no food for the holiday. Nothing. How can we celebrate?” And he heard the father’s reply: “Not to worry! Don’t you remember that last year, Elijah came with all that we needed, and gifts for the children as well? Have faith; he will surely come on time once more.”
So ends the story, save for its moral: Rabbi Hillel taught, “Where there is no man, be thou a man.” The Besht, through this story, taught, “Where there is no Elijah, be thou Elijah.” Through acts of loving kindness, each of us has the power to bring us all closer to redemption.
For those who have devoted themselves to helping refugees (or helping anyone else, for that matter), I think this story has particular resonance. While we continue to hope that the world situation will improve, and that fewer people will be forced from their homes by war and persecution, we must also continue our efforts to help those in need. As we read in Pirkei Avot (Ethics of the Fathers), “You are not obligated to complete the work, but neither are you free to desist from it.” In other words, Keep on Truckin’ and have a Happy Pesach!
Presenting an asylum case to an Immigration Judge or an Asylum Officer can be tricky business. There are an infinite number of ways to tell the story: How much detail to include, what to keep out, how to deal with derogatory facts. Not surprisingly, sometimes lawyers and their clients have different ideas about how the case should look. So what happens when lawyers and clients disagree?
CYA
First, we should acknowledge that there are areas where the lawyer’s interest and the client’s interest are in harmony, and other areas where those interests diverge. For example, both the lawyer and the client want to win the case. They both would like to finish the case as quickly as possible. They both want a good relationship with the other.
There are also areas where the lawyer’s and the client’s interests differ. The lawyer often wants to do less work on the case, while the client wants the lawyer to do more work. The lawyer has to deal with many cases, but the client wants her case, and her phone calls and emails, to receive the highest priority. The lawyer has her own ideas about how the case should be presented; the client may have a different idea. For attorneys in private practice (like yours truly), the lawyer wants to charge more money; the client wants to pay less. A good (i.e., ethical) attorney generally puts his own interests behind those of his client, but only to an extent, and when discussing “lawyers vs. clients,” it is helpful to acknowledge that there are inherent tensions in the relationship.
Here, though, I am less interested in the tension related to workloads and fees, and more interested in conflicts that arise between the attorney and her client with regards to strategy—how to present the case. But that conflict does not exist in a vacuum. Rather, it must be viewed in the context of all the other tensions inherent in the relationship, and—to make matters worse—it exists in the stressful environment of an asylum case, which can have life-changing implications for the client and her family. All this, we must keep in mind.
So what to do when the lawyer and the client cannot agree?
It happens to me periodically that I have a client who has his or her own idea about how a case should be presented, and that idea conflicts with what I think best. It is perhaps one of the downsides of experience, but the more cases I do, the less patience I have for clients who question my judgment. The problem with this attitude, of course, is that I am sometimes wrong, and if my experience blinds me to that fact, I am clearly disserving my client. For this reason, I try to practice humility and always carefully consider the client’s viewpoint. As the old prayer goes: “Lord, give me patience, and give it to me right now!”
Sometimes, however, the client is simply wrong about something: A “friend” told the client to hide her trip to Iran from the U.S. government; a person who is still legally married but separated wants to claim that he is single on an immigration form; someone with a criminal conviction wants to explain to the Judge that “it wasn’t my fault!” In cases like these, the lawyer needs explain the problem, and usually the client understands (the U.S. government probably already knows about the trip to Iran, so trying to hide it is a mistake; even though you are separated, you need to indicate “married” unless the marriage is terminated by death or divorce; the Judge wants to hear you take responsibility for the crime, apologize, and explain how you will not repeat the same mistake).
Other situations are more subtle: The client wants to add too much irrelevant information to her asylum affidavit, for example. In a situation like this, I explain my point of view (the fact-finder will become frustrated if they get bogged down in unimportant details and it will distract from the thrust of the case) and usually the client agrees. If not, as far as I am concerned, it’s the client’s case and ultimately it’s his decision to make. My concern is that the client’s decision is made knowingly (maybe this is why lawyers are called “counselors” and not “deciders”).
In cases where the client and I cannot agree, and where I think the client’s decision will negatively affect the outcome of the case, I write down my position and make the client sign it. It’s rare that I have to do this, but I want to have a record of what happened in case the client decides to blame me for losing the case (the technical term for this is CYA – “cover your ass”). Also, if I make the client sign such a document, it helps underscore the seriousness of the client’s decision, and hopefully dissuades him from harming his case.
My feeling is that it is better to avoid a conflict with the client before it begins. So what can be done to minimize conflicts related to case presentation?
The most obvious solution is communication, and this is primarily the lawyer’s responsibility. As lawyers, we need to be transparent about what we do. If we over-sell our services, and promise the client the moon and the stars, we really can’t complain when the client expects us to deliver. It’s the same with case presentation. The client needs to understand the lawyer’s role, and what the lawyer can and cannot do (we can’t help a client lie, for example). I find it helpful to show potential clients examples of my work, so they have an idea how their case will look at the end of the process. I also outline how we will prepare the case, what we need from the client, what my assistants will do, and what I will do. I also try to give them an idea about what we don’t know–primarily, how long the case will take, given the very long backlog. To paraphrase the old ad, a well educated client is our best customer.
For many–if not most–asylum seekers, the process is stressful and scary. They are separated from loved ones and living with great uncertainty. As lawyers, we absorb some of that stress. By communicating effectively with our clients, we can reduce their stress and our own, and we maximize the chances for a successful outcome in their case.
Recently, I worked on a couple cases where my clients got bad advice, which got them into trouble.
The first case involved a woman with an otherwise strong asylum claim. As a young girl, she and her family were refugees in Iran. Someone in her community advised her it would be better not to tell the U.S. government (or her attorney) that she had been in Iran. The community adviser thought it would harm my client’s chances for relief if she revealed that she spent time in Iran. The client took this advice and did not tell the U.S. government (or me) that she lived in Iran for a few years. The problem, of course, was that the U.S. government–and the Asylum Officer who interviewed her–knew that she had been in Iran. Nevertheless, she denied having been there. After the interview, she told me that she had, in fact, been in Iran, and we submitted a letter to the Asylum Office explaining what happened. She may still get asylum, but her lie damaged her credibility, which could easily result in a denial. We shall see.
If you don’t know what you’re talking about: Stifle, would-ya?
The second case involved a woman who had been in the United States for more than one year. She was still in lawful status when conditions in her country changed causing her to fear return. About eight months after the changed circumstances, she went to a reputable non-profit organization to ask about asylum. She did not speak to an attorney, but was advised by a paralegal (or maybe a secretary) that she was ineligible for asylum since she missed the one year filing deadline. In fact, the client met two exceptions to the one-year filing deadline: First, changed circumstances, since country conditions changed, giving rise to her fear of persecution, and second, extraordinary circumstances given that she was still in lawful status when she went to the non-profit seeking advice about asylum. I recently litigated this case and the Immigration Judge granted asylum, but it was a close call. Had the client filed for asylum in a more timely manner, it would have been a much cleaner case.
In both cases, the advisers were (probably) well meaning, but in each case, they gave advice that greatly reduced the client’s chances for success. So my question is, when people don’t know what their talking about, why do they feel compelled to open their mouths and release some sort of useless–and worse than useless–noise?
I remember a similar phenomenon from when I lived in Nicaragua (and I and other people have experienced it in different countries). I would need to find the post office, for example, and so I would ask someone on the street. The person would give an answer, like “Walk two blocks towards the lake, make a left at the church and you’ll see it on the next block.” In fact, the person had no idea where the post office was; he just didn’t want to admit that he didn’t know.
So what gives? Maybe in part, its because people like to look knowledgeable and don’t like to admit ignorance. People often think they know more than they do, or that they understand the way things work, when they don’t. This can be a particular problem in an area like immigration law, where the rules of logic and common sense often do not apply.
To quote Noah ben Shea, “To be wise, we only have to go in search of our ignorance.” Indeed, had my clients’ advisers simply stated that they did not know, it would have saved everyone a lot of trouble. And so here is my advice for asylum seekers: Be careful when taking advice from friends or community members who “know how things work.” The law can be complicated and it sometimes changes. Just because your friend got asylum does not make him an expert–no two cases are the same, and what worked for one person might result in disaster for another. It feels uncomfortable and self serving for me to tell people to hire a lawyer, but time and time again, I see people whose cases (and lives) have been screwed up by bad advice. So find a reputable attorney and pay for some decent advice. In the long run, it may save you a lot of money and a lot of heartache.
In her memoir, Battle Hymn of the Tiger Mother, law professor Amy Chua compares the strict “Chinese” parenting style with the more permissive parenting style popular in the West. The book (or at least the out-of-context ideas in the book) shook the parenting word: Are Western parents focused so much on building their children’s self esteem that they’re raising self-indulgent, spoiled kids? Are traditional Chinese parents raising children who will be smarter and more successful than their peers in the West?
Tiger Lawyers win more cases.
I am not sure which parenting style works better, but in the context of immigration law, it makes sense that the “Chinese” style will result in better outcomes for our clients.
It might seem like a no brainer to treat our clients strictly–if we need a document in time to meet a deadline, the client better get us that document on time. The problem is, immigration lawyers, and more particularly asylum lawyers, are generally big softies. We may talk tough, but our sympathies are with the little guy. For the most part, we are nice people trying to help out those in need. We’re not really the type to crack the whip.
I can think of plenty of occasions where clients brought me documents on deadline day, after I finished preparing their cases. I may have grumbled (a lot), but I dutifully pulled apart the documents, re-did the index of exhibits, and submitted a complete package with the new evidence. Other times, I receive documents after the deadline. I submit them late and make some excuse to the judge, often times taking the blame myself. A Tiger Lawyer would not do these things. He would tell the client that it was too late, and let the chips fall where they may–if the client loses her case, she has only herself to blame.
Of course, clients don’t care much about deadlines or documents; they just want to win their cases. If lawyers didn’t submit the documents late or take the blame for our clients’ failures, we would lose more cases. Perhaps it would be better if our clients suffered the consequences of their shortcomings. But I suspect a lawyer who follows that approach won’t be in business for very long.
To be successful, we have to be tough on our clients so that they gather the evidence and do what is needed to win their cases. But in the end, we have to put our clients’ interests first, and when they fail to do their part, we have to make up for it. So maybe the best approach is to be a nice guy in a Tiger Lawyer’s clothing.
