Introduction To Representing Noncitizens In Removal Proceedings: Part 1 of 5
This paper attempts to provide a brief introduction to removal practice for new attorneys and attorneys who now practice criminal law or family or business immigration law.
Removal work, especially representing detained clients, requires careful client and office management. Access to detained clients is very limited. While many detained - and nondetained - clients are honest, helpful and realistic, others are distrustful of lawyers and in denial about their chances of avoiding removal. Deadlines are rigid and many are jurisdictional. In general, detained cases move fast.
Even well-intentioned, hard-working lawyers can sink into a malpractice morass by being too busy, communicating too little, or not documenting their work and their communications with their clients. Because clients desperate to avoid removal have little to lose, and Bureau of Immigration Appeals (BIA) rules on motions to reopen require filing a complaint against former counsel in many cases, removal law is an area where it is sensible to practice law defensively.
Define the scope of representation
It is critical to define the scope of representation early on. Will you represent the client before the Immigration Court in bond and merits proceedings, before the Board of Immigration Appeals, in state court to try and vacate a conviction, in a federal court habeas action to review the client's mandatory detention, or in a federal court petition for review or habeas action seeking review of a final order of removal? Many criminal cases could involve every one of these proceedings. Defining - and if necessary, redefining as the case develops - what you are being hired to do and what parts of the case you are not responsible for is critically important. Know what you want to do, what you are competent to do, and have time to do. Be careful to be realistic. If necessary, consider limiting the scope of representation that you undertake, either absolutely, or through teaming up with experienced criminal or removal law counsel. This is an area where feelings of sympathy for a client or their relatives, inexperience, or ego can lead you to try to commit to more hard work than you can realistically produce.
The Executive Office for Immigration Review, the Justice Department office which the immigration courts and the BIA are part of, severely limits an attorney's ability to withdraw in mid-case. Withdrawal is by permission and it is only granted for cause. Nonpayment of fees is not good cause. A prudent lawyer representing individuals in removal proceedings who wants to sustain her practice for the long-term needs to collect a significant portion of her fees up front. As a practical matter, it is common for relatives of detained clients to lose interest in footing the bill as a case moves from the Immigration Court, the BIA and the federal courts.
Visit your client, talk to your client, write your client
Communication is a serious problem in removal defense. Language problems, client anxiety and denial, and the unreal harshness of current immigration laws impede open, efficient communication with clients. Clients and their families are often in denial about the offenses that have landed the noncitizen in removal proceedings, and about the likelihood of avoiding removal. While it is important to be a strong advocate and not adopt a cynical attitude about noncitizen clients, it is also important to not let clients cling to delusions that will make it difficult or impossible to mount an adequate defense. ("I took four years in prison on a plea, but I'm not guilty…I've seen others do much worse, and they didn't get deported…I have kids here and they can't deport me. The judge will understand that," etc.)
Detained clients are especially difficult to communicate with. You must communicate with clients prior to their hearings. Many Department of Homeland Security (DHS), Deportation and Removal Operations (DRO) offices have created local rules that make communication with a client on the day of a hearing virtually impossible. It was formerly common to meet with clients serving sentences for long talks prior to Institutional Hearing Program hearings at the correctional facilities holding such hearings. However, these hearings are typically now being held by teleconference and direct communication with clients requires the immigration judge's agreement to clear the courtroom. You should do this when necessary to effectively represent your client, but it will not be permitted to make up for failure to meet with a client before the hearing.
Prison visits are time consuming. Prior to making such visits, you need to research a specific facility's practices. At some correctional facilities, visiting hours are liberal and visits do not have to be arranged in advance; at others, visiting hours are limited and must be scheduled a day or more in advance. Some counselors are very cooperative, and others are not. Sometimes, detainees are housed far from where they were living prior to their detention, including in other states, making visits even more difficult.
To effectively represent detained noncitizens, you need to visit clients in prison, accept collect calls, have someone available to take those calls who can respond to them effectively, and most of all, you have to be well-prepared so that the limited time you can speak to your client and his family members will be productive.
Next week: Get The Records: Part 2 of 5
About The Author
Michael J. Boyle practices immigration law with the Law Offices of Michael Boyle, a four-attorney immigration law firm in North Haven, CT. Mr. Boyle is also Chair of the Connecticut chapter of the American Immigration Lawyers Association. He is also Staff Attorney for the unions at Yale University and advises the immigration committee of the Hotel Employees and Restaurant Employees International Union. He is a graduate of Yale, the University of London School of Oriental and African Studies, and the University of Connecticut School of Law. Michael Boyle may be contacted at: firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.