I have a good friend whose mantra for her busy life is “do all you can with the time that you have.” Unfortunately, the motto also has been proven to fit the Trump Administration’s zealous approach to reimagining the immigration system of the United States during its four-year term. Consequently, immigration attorneys and their clients feel like the rules change “on a dime” during this administration. That sense is absolutely justified, as there has been an average of one substantive change to immigration policy per working day since January 2017. Perhaps nowhere is this change more palpable than within the confines of immigration court. Perversely, the COVID-19-caused slowdown of removal proceedings has given a needed respite from active defense, but the changes at the Department of Justice (DOJ) – in personnel, philosophy and precedent – continue, in a consistent tilt toward anti-immigrant outcomes.
From our perspective, the Sessions/Whitaker/Barr DOJ has challenged the Transcendentalist saying (later borrowed by Dr. Martin Luther King, Jr.) about the long arc of the universe bending toward justice. Instead, sometimes, it just feels like the weight of the universe is tipping the scales, and not in a good way.
Against this backdrop, I challenge my colleagues to identify any better time than now to be a defender. When have we been more essential? Needed? Depended upon? Been given more material upon which to play the long game and formulate legal challenges?
Now is the perfect time to embrace an amplified role as a zealous defender. The stakes have never been more unambiguous: From Jefferson Beauregard Sessions, III’s declaration that immigration courts are enforcers of the law and that defense counsel actually undermine the rule of law (like mud seeping under an earthen dam), to William P. Barr’s increasing use of biased hiring practices and the Attorney General’s decision-making authority, the structure, norms, and jurisprudence of removal proceedings are eroding, in all arenas – procedural arguments, criminal removal theories, exercise of discretion, and protection of asylum-seekers. The immigration judges are struggling for their own independence, but they are hamstrung by quotas and are closely monitored for their rates of reversal by the increasingly politicized Board of Immigration Appeals.
What do you as a practitioner need to confront these realities? You need to head into court with an assertive, thoughtful, well-crafted and well-executed defense. “Best practices” are perhaps more important than ever in this environment because there is no safety net: Common-sense prosecutorial discretion has dissipated and thus every case goes forward on its merits. Given that agency precedent is on an increasingly restrictionist track, EVERY available procedural and legal issue must be rigorously argued, EVERY fact must be proven, EVERY Department of Homeland Security (DHS) assertion must be critiqued for challenge, EVERY issue must be preserved for appeal.
So, how do you prepare for court, and how do you know if you are prepared? May I first recommend the upcoming AILA Virtual Immigration Court Conference on August 20, 2020? We have confirmed an excellent faculty, including former immigration judges. I admit to being the Chair and spending A LOT of time working with the other conference planning committee members to figure out what we’d want as practitioners and bringing it to you virtually, but my bias doesn’t mean I am wrong.
Newer practitioners will emerge with both the substantive knowledge to manage their clients’ litigation strategy – from intake to trial – in an informed way, and practical skills (as modeled through mock hearings, with explanatory debriefing sessions) for navigating through even the most hostile in-court environment to build a record as planned by counsel, so counsel are comfortable being the assertive defenders that their clients need. Panels will dive into pre-trial practice and fact investigations, substantive guidance on preparing and presenting bond cases; presenting argument at master hearings, presenting facts and testimony and argument at individual hearings, and pursuing all alternatives in a comprehensive defense.
Many conferences focus on important theoretical issues, e.g. the finer points of the “categorical approach” for analyzing crimes and the theory of “particular social groups” for asylum practice. This conference will largely avoid this territory, in favor of focusing on how to practice. The driving philosophy of the conference is that if the immigrant defense bar is uniformly assertive and skillful, we collectively maximize our impact and effectiveness. We should all strive for greatness, and in 2020, greatness is the minimum our clients require of their defenders. One can simultaneously be client-centered and realistic, yet laser-focused on building the best defense possible.
We, of course want an independent immigration judiciary, one free from political influence and bias. But regardless of whether such a judiciary will be formed (eyes on Congress everyone?!), every defense attorney (and that’s what you are in immigration court, my friend), needs to be uniformly prepared, comprehensively trained, and conditioned to assertively and persuasively defend. New attorneys, or those who are suddenly doing more immigration court work than ever because judges cannot administratively close cases anymore…I have good news: You can do this. And you are not alone. Together, when WE do all we can, we change the game.
The Early Bird registration deadline for the Immigration Court conference ends tomorrow, Thursday, August 6 – don’t miss out!