Part of the Diversity and Inclusion blog post series
It is well-established that cultivating diverse and inclusive cultures within businesses increases employee engagement, company innovation, and overall financial results. Despite this, law firms are still dominated by white male attorneys. According to the 2019 American Bar Association National Lawyer Population Survey, 85% of lawyers in 2019 are classified as White/Caucasian, 5% of lawyers are Black, 5% of lawyers are Hispanic, and the remaining 5% is divided between Asian, Multiracial, Native American, and Hawaiian/Pacific Islander. Importantly, through 31 December 2018, 0% of attorneys identified as Hawaiian/Pacific Islander. A trend that has continued since the beginning of 2016. Of all those identified attorneys, 64% are male. In light of the continued dominance of white males in the legal profession, immigration law practices desperately need to encourage diversity within their ranks as a means to not only increase productivity, and innovation, and financial results, but also to promote client trust. Further, immigration practices have an additional hurdle to overcome: the lack of diversity among, and the implicit biases of, immigration judges and the Board of Immigration Appeals (BIA).
It’s important to remember that, diversity does not extend only to the demographics popularly associated with diversity—age, gender, sexual orientation, nationality, and race. It also includes hiring persons of diverse educational and professional backgrounds. In 2017, the management and information technology consulting firm Booz Allen Hamilton submitted recommendations to the Executive Office for Immigration Review (EOIR) after a year-long study of the U.S. immigration court system. The firm found that 41% of immigration judges had previously worked for U.S. Immigration and Customs Enforcement (ICE) and nearly 20% of immigration judges worked for other branches within U.S. Department of Justice (DOJ), a situation which according to Booz Allen greatly “limits the diversity of perspectives on the bench.”
In an immigration practice, attorneys routinely encounter individuals of different socioeconomic backgrounds, ethnicities, nationalities, and education levels. Therefore, it is important for the practice to hire attorneys from diverse demographic, personal, and professional backgrounds who can empathize with a variety of clients.
For example, a female Asian client approaches a firm seeking advice because her male American spouse is physically and emotionally abusive. When analyzing the Violence Against Women Act (VAWA) claim, it is important for the attorney to be able to obtain complete information regarding the underlying harm, in order to represent the client in the most competent manner. However, a female client may not feel comfortable detailing all the abuses to a male attorney because of the nature of the harm, i.e., spousal rape or other forms of sexual abuse. Similarly, a male client may not be comfortable speaking with a male attorney for fear of appearing weak. hampered by the often-accepted social attitudes toward male victims of domestic abuse. In these cases, a law firm needs to understand that a client withholding information does not necessarily mean that the client is purposefully “difficult” or uncooperative. Rather, the client may be acting according to different socioeconomic standards than those of the attorney. Therefore, assigning an attorney who can relate to the client, or to whom the client will feel more comfortable disclosing such personal information, may resolve these problems.
Additionally, an attorney who has spent time living or studying in a certain country may have better access to the resources, networks, and research necessary to help a client from that country. An attorney who identifies as LGBTQ+ may be better able to empathize with and explain the persecution that another LGBTQ+ client has faced or will face in the future. An attorney who has worked for EOIR and has seen what immigration judges look for when determining whether someone is a member of a particular social group can potentially craft an argument highlighting the most important facts that will increase the likelihood that an immigration judge will rule in the client’s favor.
It is therefore important for immigration law firms to understand that individuals of different backgrounds may react in different ways from each other when placed in the same situation, and that it is the law firm’s duty to the client to assign the case to an attorney who can empathize with the client’s experience, and create a trusting environment. Additionally, a law firm must understand that maintaining a team of attorneys with diverse personal and professional experiences not only increases employee engagement, company innovation, productivity, and client trust — doing so is also necessary to help overcome the implicit bias of the currently homogenous pool of immigration judges and BIA members.