Removal Ramblings: Creativity in Removal Proceedings

Being in a removal practice can be difficult for several reasons.  It sucks seeing clients who you know deserve to remain with their families get kicked out of the country.  I hate watching families ripped apart by an archaic immigration system that really does nothing to take into account the needs of the family or society-at-large.

At the same time, the practice can be extremely rewarding, like when you win that cancellation case you thought had no legs, or when asylum is granted to that client who is scared to death to return home.  It is exhilarating.

If you’re a removal veteran, you know that removal defense is full of highs and lows.  There are no Perry Mason’s or Matlock’s of our practice area.  No one wins every case.  If you do, give me a call, we need to talk.

Ain't no Perry Mason or Matlock here

Removal proceedings are usually our clients’ one and only chance to remain in the United States with their families, friends and loved ones.  Often, the only thing standing between them and a trip back home is their attorney.

This is what makes creativity such an important asset for the removal defense practitioner.  Go ahead, pat yourself on the back.  Only a creative genius can take poorly defined (or just straight up undefined) terms like “exceptional and extremely unusual hardship,” “refugee,” “in the aggregate,” etc. and bring them to life in a way that results in a positive decision for a client.

The problem is that the practice of law often discourages creativity. 

Like a bunch of religious zealots, the problem with many attorneys is that they get so caught up in what they cannot do, they don’t stop to think about what they can do.  In removal proceedings in particular, it can be easy to feel boxed in by bad BIA decisions (or a lack of any precedent-setting BIA decisions).

I blame PR classes in law school.  Every law student has a moment in PR where they realize they could potentially lose their license for something they did not even know was wrong.

Regardless of the reasons, if you want to be an effective removal defense attorney, you need to break the box and start thinking of creative ways to employ motions, applications for relief and other aspects of the practice as tools for accomplishing an end.

What is the end?  It isn’t necessarily always a green card.  The first step in creativity is figuring out exactly what your client wants the most.  That may be to stay in the U.S.  It could also be to buy more time.  It may be to preserve eligibility to return to the U.S. on a subsequent immigrant or non-immigrant application.  Sometimes you even have a client who wants to return home.

Regardless, you have to figure out what he or she really wants from your representation, not what you think is best.  You accomplish by listening to your client.  I know our time is limited, but I cannot stress enough the necessity of listening to what your client has to say.  Not only does this inform your counsel, it also creates trust between you and your client. 

Face it, attorneys aren’t exactly highly thought of by society-at-large.  Slap that assumption in the face by actually taking the time to figure out your client’s goals before stating your opinion.

Everybody hates lawyers...

Once you’ve figured them out, you need to frame a strategy for accomplishing your client’s goals.  Without a doubt, you will often have clients who have completely unrealistic expectations.  Tempering such expectations is a topic for another post.  Still, often a client’s goals are very much in line with reality, or at the very least, something you can make a good faith effort to accomplish.   

Some people just don't get it

If the client wants to stay in the U.S., are there any forms of relief for which you could make a colorable argument?  Are there any forms of relief available outside of removal proceedings such as VAWA benefits, a U visa, or DACA?

If your client merely wants to buy more time, would a well-constructed motion to continue serve the purpose, or would something else be necessary?

For example, maybe your client has been here 10 years, seems to possess good moral character and has a couple of U.S. citizen children.  Unfortunately, hardship to the U.S. citizen children seems unlikely. 

If your client understands the difficulties, but really needs more time in the country, why not apply for cancellation of removal?  Who knows what is going to happen to the children in the interim between the master calendar hearing and the final individual hearing?  Circumstances change.

Furthermore, the time a cancellation of removal application will take to process, followed by potential appeals may be priceless to your client.

Most importantly, arguing over undefined phrases such as “exceptional and extremely unusual hardship” is our job as attorneys.  The law allows the immigration judge to find hardship in the aggregate.  Make the argument.  Sometimes it works.  Sometimes it does not.  Either way, your client is satisfied that no stone has been left unturned, you’ve gained additional courtroom experience and sufficient time was won for your client to make plans for the future.  It's a win-win-win.

In addition, understanding the law & rules is essential to creativity.  You cannot push the boundaries if you do not know what they are.  As rigid as the laws governing deportability and relief from removal seem to be at times, there is plenty of room to make arguments.

Understanding the law does not only help you figure out the boundaries, it helps you identify where things are less rigid.  The classic example for removal proceedings would have to be the rules of evidence.

As removal defense attorneys, the fact that the traditional rules of evidence do not apply in immigration court allows a tremendous degree of flexibility regarding the information we can put before the court.

Be honest, but also be creative, in the evidence presented to the court in support of your applications.

Perhaps most importantly, you need to know your judge as well as the trial attorneys.  Different judges apply the law differently.  For all the attempts at uniformity, this truth remains constant.  There will be some immigration judges who believe it is their job to act as a second prosecutor.  Others will grant asylum to Germans who want to home school their children.

Know your judge

Removal defense is one of the most rewarding areas of the law.  Nothing feels better than bringing a case to a successful resolution for a deserving client.

Doing so requires creativity.  Be creative.