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| Steven Malm |
As the 19th Century French critic and journalist Jean-Baptiste Alphonse Karr said, "plus ça change, plus c'est la même chose."[1] When it comes to immigration, the more things change, the more they stay the same.
With scores of new arrivals to the U.S. struggling to navigate this tumultuous environment, immigration also represents fertile terrain for attorneys who've resolved to take on pro bono work in the new year. And while the new year brings a fresh slate of billable-hour requirements, many law firms propitiously offer substantial credit for pro bono work, eclipsing even the aspirational norm of 50 hours annually set by the American Bar Association.
Yet, when considering immigration for pro bono work, attorneys should take heed. Constant changes in immigration — which consistently serves as a political wiffle ball — and attendant procedural dysfunction make the practice area beguiling.
Immigration law has been described by courts as labyrinthine and as second only to the Internal Revenue Code in complexity. Unsurprisingly, there are many traps of which a novice immigration practitioner would not be aware.
Of course, at a minimum, attorneys must be competent to take on a pro bono matter. Per the ABA, this requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."[2]
A logical first step in attaining competence for immigration is reviewing the Immigration and Nationality Act and its implementing regulations.
In addition, myriad practice guides may be found online for common types of pro bono immigration matters, such as preparing asylum applications, representing respondents in removal proceedings or filing special immigrant juvenile petitions.
While the above resources will prove helpful, ultimately there is no substitute for experience. Practitioners entering the field of immigration for the first time would do well to find a mentor who can help by imparting lessons learned over time practicing in the field.
Below are six practice tips to help pro bono practitioners new to immigration practice get orientated and avoid some common missteps.
1. Review the Immigration Court Practice Manual.
Immigration law is its own creature. Anyone practicing before an immigration court must carefully review and become familiar with the Immigration Court Practice Manual, published by the U.S. Department of Justice. Many missteps can be avoided — and common questions answered — simply by reviewing the practice manual.[3]
Conversely, failure to consult and follow the practice manual can result in rejected filings and missed deadlines, which can have a highly prejudicial impact on the client.
2. Be aware of immigration-specific deadlines and filing timeline considerations.
Immigration has many unique application deadlines and timing considerations of which a practitioner needs to be aware. Generally, newcomers to immigration are aware of the one-year filing deadline, which mandates the filing of an asylum application within one year of the client's arrival in the U.S., but other good reasons exist to file for asylum promptly.
Naturally, the client will be eager to obtain a work authorization document as soon as possible. The work authorization application generally may be filed 150 days after the asylum application has been received, and approved after the 180-day mark. Therefore, the sooner the asylum application is filed, the sooner the work authorization may be filed and approved.
An often-overlooked benefit of filing the asylum application promptly — specifically, within 180 days of the client's arrival within the U.S. — is that the filing serves to protect the client from accruing "unlawful presence."
Accruing more than 180 days of unlawful presence in the U.S. corresponds to a three-year bar from returning to the U.S., whereas unlawful presence of one year corresponds to a 10-year bar, should they need to depart the U.S. in order to pursue legal status through another pathway.
Thus, if an asylum claim ultimately fails, but the application was filed before the client was in the U.S. unlawfully for over 180 days, the client can, in theory, depart and process a green card or other visa application without seeking a waiver of the three- or 10-year bar.
On the topic of deadlines, pro bono attorneys should be advised that while the Immigration Court Practice Manual sets default deadlines — such as the standard filing deadline to submit updated documents 15 days prior to a hearing — the immigration judge may set their own deadlines.
Often, an immigration judge will set a call-up deadline — the date by which supporting documentation must be submitted to the court — for 30 days prior to a hearing, which would supplant what appears in the practice manual. It is critical that the pro bono attorney notes and tracks these deadlines set by the immigration judge. The effect of not complying with such deadlines is that the immigration judge may pretermit and deny an application.
3. Take a holistic approach and monitor other paths the client may have to obtain legal status.
Pro bono immigration representation should be approached holistically, considering the client's unique circumstances. For example, a case may start as an asylum claim, but over the many years it takes for the case to reach the final hearing, it could transform into a marriage-based green card case.
Practitioners should remain in frequent communication with their pro bono clients to determine whether an alternate pathway to legal status may become available during the course of the representation.
A complex and controversial topic that has arisen in the context of the Senate negotiations over a new border bill is parole entry into the U.S. For purposes of this article, practitioners should be aware that if the client has been paroled into the U.S. — as opposed to entering without inspection — a more streamlined path to a green card may be available, particularly if the client is married to a U.S. citizen or if the client has a U.S. citizen child who is over the age of 21.
Other forms of legal status that may also become available during the course of the representation include eligibility for U-visa status as a crime victim or special immigrant juvenile status for certain minors, even if they are in the care of one of their parents.
4. Understand that the outcome of a case can vary greatly depending on the immigration judge and venue.
The fate of a case can depend greatly on which immigration judge hears the case and the case law applicable to the venue where the case is heard. A great resource for pro bono practitioners to check is the Transactional Records Access Clearinghouse website maintained by Syracuse University.[4]
This site tracks the asylum approval rates of all immigration judges. By looking up the immigration judge assigned to their case, pro bono practitioners may begin to ascertain their relative chance of success and consider options accordingly.
Recently, the Department of Homeland Security has shown a great willingness to exercise prosecutorial discretion in removal proceedings. Prosecutorial discretion usually entails the government dismissing the immigration court case to allow the client to refile their asylum application with U.S. Citizenship and Immigration Services.
Recent guidance has clarified that the client receives full credit for the time the asylum application was pending before the immigration court, toward both a work authorization renewal application and the one-year asylum filing deadline.
Pro bono practitioners will often have to weigh whether to proceed with asylum before the immigration court or to accept prosecutorial discretion. The aforementioned TRAC website can prove helpful in calibrating this decision.
Additionally, immigration case law may vary greatly from circuit to circuit, and so the venue where the case is heard can make a significant difference. It is not uncommon for clients to move one or two times over the course of their removal proceedings, unwittingly shifting the case law that applies to their case.
Notably, an ironic end result of bussing migrants from Texas to cities such as Chicago, Denver and New York, may be allowing such migrants to draw on more favorable federal circuit case law for their asylum claims.
5. Transition cases to successor counsel with care.
A pro bono case may experience many attorneys who come and go. The immigration court only recognizes one primary attorney. Also, for cases that have electronic records of proceedings, only the primary attorney receives notices from the court. Accordingly, when an attorney leaves a firm without taking the pro bono case with them, as is usually the case, they should promptly file a withdrawal of counsel motion.
Further, someone currently at the firm should immediately be designated as the new primary attorney. The immigration court's electronic case management system will not send the client their own hearing notices. Consequently, proper case hygiene and maintenance of the primary attorney's current contact information may be the only thing standing between the client and an in absentia removal order.
Even when the attorney of record has all of their current information on record with the immigration court, it is prudent to periodically check the case status by entering the client's alien number into the Executive Office for Immigration Review's automated case information website, and also by calling the immigration court hotline at 1-800-898-7180. The asylum work authorization clock may also be checked by calling the latter number.
Maintaining not only the attorney's current contact information, but also their law firm, is essential. While this may seem basic, notices that have been misplaced or were never received are a bane of the immigration attorney's existence. Maintaining the law firm's correct contact information mitigates the risk.
6. Be aware that the government often makes mistakes.
Too frequently, despite the pro bono immigration counsel's best efforts, the government makes errors. Unfortunately, overcoming such erroneous rejections will often require long waits on USCIS customer service hotlines, refiling papers and potentially paying fees again.
Applications particularly vulnerable to rejection include those requesting fee waivers and those involving asylum work authorization clock issues, including where multiple family members have separate applications pending with different clocks. Given the frequency of erroneous fee-waiver rejections, it is advisable to pay the fee if at all possible. Firm pro bono budgets will occasionally cover this.
Conclusion
The above does not purport to be an exhaustive list. Notably, a well-drafted engagement letter, securing adequate translation services and contracting with a country-conditions expert for an asylum case may also be considered essential to providing competent pro bono immigration representation. Hopefully, the above will serve as a helpful initial primer for those choosing to undertake pro bono representation in the volatile area of immigration.
Steven J. Malm is counsel and leader of the immigration practice group at Haynes and Boone LLP.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Translating to "The more things change, the more they remain the same," see https://www.merriam-webster.com/dictionary/plus%20%C3%A7a%20change%2C%20plus%20c%27est%20la%20m%C3%AAme%20chose.
[2] ABA Model Rule 1.1: Competence https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/.
[3] Accessible at https://www.justice.gov/eoir/reference-materials/ic.
[4] https://trac.syr.edu/immigration/.