Apparently, it is now fashionable to blame immigration lawyers for the ills of the U.S. immigration system. It started in October when Attorney General Jeff Sessions, railed against the “dirty immigration lawyers,” baselessly charging that they are exploiting loopholes (also known as “the law”) to game our so-called “generous” asylum system. More recently, law professor Benjamin Edwards opined along similar lines in the Wall Street Journal. Promoting an upcoming law review article in which he purportedly argues for mandatory disclosure of immigration lawyers’ wins and losses, Professor Edwards essentially argues that immigration lawyers who lose a large percentage of cases are either incompetent or “predatory” “scoundrels.”
Talk about fake news. Professor Edwards’ opinion piece is so full of false assumptions, it’s hard to know where to begin.
Assumption #1: Bad outcomes = bad lawyering. Professor Edwards’ argument is predicated on the assumption that a lawyer who loses must be incompetent. But as any Atlanta immigration attorney can tell you, even the second coming of Thurgood Marshall couldn’t be guaranteed a win on an asylum claim in that jurisdiction. It’s not about bad lawyering; it’s about a jaded, overworked and understaffed bureaucracy that too often denies due process. According to the Department of Justice, the asylum grant rate is 48% nationally; in Atlanta, it’s only 2%. Is Professor Edwards suggesting that Atlanta’s immigration lawyers are all bottom feeders filing frivolous claims? Come on. Where an immigrant happens to be located geographically can determine his fate – no matter how meritorious his claim, and no matter how competent his attorney. But if the professor had his way, attorneys who practice in locations where the judicial deck is stacked against them, in locations where they are arguably needed the most, would be driven out of business.
Assumption #2: Bad lawyers cause higher detention rates and clogged court dockets. With zero evidence, Professor Edwards states that the reason the immigration courts are backlogged and detention has increased is because unscrupulous lawyers are filing meritless asylum claims, an assertion reminiscent of AG Sessions’ equally unsupported remarks last month. It is absurd to suggest that lawyers helping clients access justice somehow impedes the system. The system is not backlogged because lawyers help immigrants file claims, but because our government chooses to invest heavily in immigration enforcement and the detention of mothers and children without any comparable spending to improve our dysfunctional and under resourced immigration court system.
Assumption #3: “Good” immigration lawyers are leaving the profession because of “corner-cutting” competitors. Professor Edwards notes that only 37% of people in removal proceedings have counsel and implies that this is because unscrupulous lawyers drive down legal fees and cause the “honest” lawyers to quit the profession, leaving a deficit. Again, no support for this baseless theory is offered. While it is certainly true that there is not enough representation for immigrants in removal proceedings, this is often due to a lack of financial resources, language barriers, or because immigrants are often detained in remote locations where there are no attorneys. And while some lawyers leave the profession when they can no longer stand to witness the affronts to justice on daily display in our immigration courts, many more are stepping up and digging in for the long hard fight against this administration’s mass deportation machine.
Assumption #4: In many cases, immigrants are better off without an attorney. Added to all of the above, Professor Edwards smears all immigration lawyers based on the incompetence of a few, stating that “immigrants would be better off without an attorney than entrusting their fate to the bottom 10% of immigration lawyers.” Yet, he neglected to mention that immigrants represented by counsel are more likely to be released from detention; more likely to appear in court and more likely to win their removal cases.
Is the immigration bar perfect? No. Like any other profession, the immigration bar is not immune to practitioners whose performance falls below acceptable standards. This is a problem in medicine, the judiciary, accounting, finance, and many other fields. But instead of falling prey to the false assumptions espoused by Professor Edwards, we must confront this challenge head on. We must identify ways to encourage and lift up the best and brightest of our profession while weeding out those who do a disservice to our cause and shun the incredibly important responsibility we have to protect those we represent.
Frankly, the last thing we need right now is baseless attacks and mudslinging. We need solutions. We all need to work toward a system that follows the basic rules that our Constitution requires. A system that provides due process and equality before the law. A system that respects the role of lawyers and judges in reaching the correct decision through zealous representation and thoughtful deliberations based on all the facts. I don’t think that is an impossible dream. Let’s work together to make it a reality.