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.
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