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Robert Divine's Immigration Practice: A Divine Treatise

by Anthony Guidice

A lawyer without books is like a workman without tools. - Thomas Jefferson

There are all sorts of books of which the backs and covers are the best parts. - Charles Dickens

A good book is opened with expectation and closed with profit. - Amos Bronson Alcott

The Lawyer's Curse - Badly Written Rubbish

I know all of you reading can appreciate this: I'm sitting in my office trying to find an answer to an immigration-family law question. A pricey immigration family-law book spreads before me. I'm pressed for time and need the answer quickly. I read a page. Frustrated, I go back one page and read that. Then I reread the initial page. Then I read both pages again, in order.

According to the table of contents and chapter headings, this is the page I should be reading. But the page only tells me about 10% to 20% of what I need to know. It's hard to get through, and it's time consuming to make sense of the content. And I don't have a lot of time. I reread it another 4 times and nothing is any clearer. Finally I blurt out, "I don't know what the devil I'm reading!" A paralegal at the printer outside my office turns and gives me an alarmed look. Sound familiar? If you say "no," you're lying.

I pity the poor lawyers who think the problem might be that they're not smart enough to understand this sort of incomprehensible refuse. I'm lucky. I may not be terribly clever, but I know enough about writing and law books to understand that I'm just reading another bad law book. So I was delighted when David Koelsch told me to try out Immigration Practice by Robert Divine. Eureka! I have found it: a systematic, thorough, sourcebook on immigration law that's well written. That is, it's easy to read. Does that make it worth its weight in gold? …close.

The Value of Water When You're Thirsty

Good resource material is especially valuable to immigration lawyers. Being agency law, immigration law is a "moving target." It's governed not only by statute and case law, but also by scores of regulations that are governed by policy memos. The laws can be governed by policy memos as well. Unlike state court practice, procedural omissions in immigration practice can't be cured by a quick call to or from the clerk followed by a promise to re-file the next morning. Immigration errors can hold up adjudication for months, sometimes longer than a year; very often the delay can lose the case for the client.

Immigration law is an intricate tangle. Let's take a "simple" general example - the client has temporary status: 1) can they extend their status? 2) can they adjust to immigrant (permanent) status?, 3) if the client is eligible to adjust, what can prohibit that?, 4) what if there's a delay between the expiration of the temporary status and the approval of the immigrant status? … is the client out of status during that time?, 5) should an extension be filed on the nonimmigrant (temporary) status while the immigrant adjustment is being processed?, 6) are they not out of status if the petition is approved, but are out of status if it is not?

Sound like fun? This is a microscopic example of how a seemingly straightforward immigration question can quickly explode into complexity. So every immigration lawyer dreads having to consult a badly written hornbook, because immigration concepts can be confusing even when they're communicated perfectly. A moderately difficult estate tax or wills question may take 2 hours to research. The same moderately difficult question in immigration law will take twice as long, maybe three times as long. So poorly written source material is a death knell to a busy practitioner.

What is poor?

  • Dreary, convoluted writing that's tedious and difficult to read;
  • Writing that isn't fully explanatory: a 2 paragraph obscure explanation for an involved concept, and with no additional sources notated;
  • A book you have to physically wrestle with, like publications bound in those awful compression binders that prevent you from reading the type in the gutters;
  • Careless layout - bold headings or sub-headings at the bottom of pages; obviously it's been carelessly cut and pasted from word processing software, and not checked;
  • Superfluous headers at the tops of the pages that don't tell you what the chapter or section is; they tell you the book's title - on every page! I already know the title. (Am I missing something here?)
Much Better Crafted Legal Language

Divine's Immigration Practice is a breath of fresh air for suffocating attorneys. Of primary importance, the book is well written. Divine uses active voice more often, so the style is sometimes brighter and more concise: "Adjustment cases can drag on so long that multiple extensions of advance parole become unnecessary." That's more luminous writing. Here's another example: instead of "the consular officer should be asked by the alien", Divine writes it this way "…an alien … should ask the consular officer…" I dislike passive voice intensely. There is still some in here, but it's not as objectionable.

Divine lets up on the verb "to be" gas pedal - somewhat. He occasionally uses some other, livelier verbs like "speeds," "walk," "face," "included," and "causes." For me, there is still too much verb "to be" usage, but at least the effect isn't entirely anesthetizing. (All legal writing perpetually overuses the verb "to be"). And Divine blocks - just a bit - the usual avalanche of what Brian Garner calls "buried verbs." Almost all lawyers and legal writers compulsively and numbingly strive for the "buried verb." That is, to drearily give action to a primary verb through use of the verb "to be" rather than through the primary verb itself. For example, saying "are rejecting" instead of "rejects," "are contained" rather than "contain," "is satisfying" rather than "satisfies," "is petitioning" instead of "petitions." For me, all legal writing contains too many "buried verbs," but in Immigration Practice they are somewhat reduced - somewhat. (I'll be happy when all writers vigorously distrust buried verbs. Strong, precise verbs are stirring and compelling, they energize our writing. Why must we deaden them?)

Divine also reduces - somewhat - the use of another legal writing curse: the dreaded propositional phrase. He'll say "respondent must submit an explanatory brief" rather than "a brief of explanation will have to be submitted by the respondent," or "DHS has created a program" (see the buried verb?), rather than "a program has been created by the DHS." Overuse of prepositional phrases absolutely swallows up any written piece's current, its energy. To a degree, these phrases and verb uses are occasionally necessary, but Immigration Practice uses them with less frequency. Unlike almost all legal writers, Divine doesn't seem quite as pathologically addicted to these bad habits. The reading isn't as dry as dust. Our eyes don't glaze over.

The Superior Teacher: Explaining and Demonstrating

But Divine, as good teachers do, remembers what it was like when he didn't know anything. His book illuminates. In form, content, and organization, the book's overarching goal seems to be to illuminating the reader. And it's a very singular goal, because along with all the other things this book is, it never becomes a commentary on the author's conceit. There is a consistent voice throughout. Divine pretty much wrote the entire book, so from beginning to end, the tone is consistent. I have a business immigration book that's acutely distracting to read because, having been written by 2 people, the book changes tone from chapter to chapter. The 2 styles are dissimilar, and the noticeable difference in style is bothersome (the compression binding doesn't help matters any). And Immigration Practice is also abundantly and profitably cross referenced: to the INA, to case law, to regulations, operational memos, field manuals, and more. This book, all by itself, can always point you in a myriad of different directions if you need to clarify something. Divine takes care of you, whatever the amount of information you require.

The format of the book is ideal.

  • Part I is an overview of client action & immigration agencies;
  • Part II is an introduction to immigration law;
  • Part III deals with paths to permanent residence;
  • Part IV involves temporary status;
  • Part V covers involved issues in employment law;
  • Part VI is the appendix, which includes a superb CD-ROM, which is also cross referenced. I could write a complete article on Part VI alone.

Immigration Practice also contains separate text boxes throughout to tell you what is in a particular petition package. For example, what to include in petitions for H-1B, H-2A, H-2B, P, O, and L visas. As the author says in the preface, explanations of issues and scenarios are always presented to lead to a course of action: the practitioner must do something to achieve a result. The book is ideally suited to that purpose: taking action.

Teaching Law So Someone Might Learn It? This Is The Textbook.

Using the casebook method for teaching immigration law is like trying to stitch together 2 pieces of spaghetti with boxing gloves on. If I'm ever teaching immigration law, first of all there would be no curve; second, this is what I'd use for a text book. Immigration Practice is a pliable instrument: it can be as large in scope or as specialized as you need it to be. Chapters 1 - 6 are a solid foundation to immigration law. There is easily one semester of material there, and you can always use other sections to round out or customize whatever your emphasis is: whether it's refugee law, relief from removal, consular processing, whatever.

The book would also be a fine clinical sourcebook. If you're managing an asylum clinic, and also take religious worker petitions, or fiancé visas, for example, you have all the law and procedures needed to get students up to speed on the cases. I'd have a half dozen copies available. And if I needed to create a specialty seminar within a general immigration clinic format, say H-1B, or TN visas, or K visas, chapters and sections in Immigration Practice could efficiently form the basis for it.

A Hands-On Exercise

Let's walk through a client problem to show how nicely this book is organized. Let's suppose a minister wants to extend his nonimmigrant (temporary) status, and he may also want to adjust to immigrant (permanent) status. He's coming in tomorrow and I'm in the middle of 4 other cases. So I take out Immigration Practice and open it. I know this is an R visa, so under R visa the Index tells me to look in §17-5(b) to §17-5(b)(4)(iii). What if I didn't know religious workers needed R visas? I'd just keep going under R to find "Religious Workers.;" simple.

Under §17-5(b) there's an introduction, then §17-5(b)(i) tells me what the statute says. Further in this category - nonimmigrant, §17-5(b)(2)(ii) - extending a petition is at the end of the section. Also here is a footnote to the CFR section detailing what type of papers are needed for this petition, and for other types of similar petitions. I also find other materials the extension package must include.

What about adjusting him to immigrant status? Under §17-5(b)(2)(i) there is a step by step discussion of what's required: the religious organization's file data, the necessary immigration forms, where to file, and on through what happens after petition approval. I also find some other data: that religious workers are fourth employment preference special immigrants, and that new regulations promulgated in 2008 now make this category more like other employment classifications, different from when Congress created the R category in 1990. And, if I need more information, I also find another footnote referring me to §15-2(e) for more information on special immigrants

So now I have the essential information I need to:

  • Extend the clients R-1 nonimmigrant status;
  • Give him an idea of what I'll charge him for the extension, as well as an idea of what an adjustment of status petition will cost him; and
  • I can also check other resources in the book for approximate processing times, and for any unlawful status issues for the extension.

All this information I can find, take notes on, and have ready for tomorrow without any difficulty, and without getting any startled looks from the hallway. It took me less than 40 minutes to prepare for the client tomorrow.

Divine's Immigration Practice can easily get you where you need to be: from the general to the semi-specific, or from the semi-specific to the minutia. Whether you need 95% or 5% of a required knowledge area, you'll find it quickly, without a hassle. It's easy and fast to find exactly what you need, and easily understand it.

There's much more I could say about this book, but the article would be too long. Here's a quick list of additional benefits:

  • It's an easy read. You can sit with it on your lap at a horse show or a baseball game, and read through different bits you need to check on.
  • It's coherent, like the wonderful Immigrant Legal Resource Center (ilrc) books from San Francisco. But Immigration Practice is comprehensive; everything is in there.
  • It's the perfect size; it's thick - 2-1/2 inches, but it's also a compact 6 x 9 inches. You can fit it in your briefcase next to a larger 81/2 x 11 book or binder. It's easy to carry about, and it's convenient to have at hand on an already crowded desk.
  • Want to only take one book on vacation with you - take this;
  • Immigration Practice is designed for all-purpose use. It's well suited either to compile 2 dozen pages of notes for a client meeting or a session with your senior partner; and
  • It's equally useful if you need to quickly check one subsection, rule, fact, or provision while the client sits there in front of you.
Light Your Client's Way, and Brighten Your Own Path

If you've been around immigration law for a while, and have never seen this book, you're lucky because you're in for a treat. The first time you read a passage from it you'll say, "Wow, where has this thing been all this time?" Divine's Immigration Practice is thoughtfully configured, meticulously cross-referenced, and - of boundless importance - easy to read. As a reader, you are easily swept along, guided from concept to concept. You don't fight your way through this book.

I never imagined I would write all these things about an immigration hornbook. But Immigration Practice seems to continually amaze me by its quiet excellence. I'm reminded of a quote by Christopher Morley: "There is no mistaking a real book when one meets it. It is like falling in love." If you're an immigration lawyer, buy this book - you'll thank me.

About The Author

Anthony Guidice practices Immigration Law in Morristown, NJ.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.