How Bad Is the Immigration Bar?

By Andrew R. Arthur on November 28, 2017

In an opinion piece published in the Wall Street Journal over the weekend, law professor Benjamin Edwards is pretty blunt: "Immigrants Need Better Protection — From Their Lawyers". As he explains:

As a group, the private immigration bar now contains the worst lawyers in all of law. A 2011 survey of federal judges by Richard Posner and Albert Yoon found that, of all practice areas appearing in federal courts, immigration lawyers provided the lowest-quality representation. In another 2011 survey, 31 immigration judges in New York classified nearly half of the attorneys appearing before them as either inadequate or grossly inadequate. A 2015 study found that immigrants would be better off without an attorney than entrusting their fate to the bottom 10% of immigration lawyers.

This is not exactly a glowing portrait of my colleagues, but it is at least objective and fair. That said, however, some caveats are in order.

I have served as an Immigration and Naturalization Service (INS) trial attorney in two cities, San Francisco and Baltimore, and appeared in a handful of others. I also sat as an immigration judge (IJ) in York, Pa. The quality of the bar varied greatly, not just within each court, but among the courts in which I was assigned.

I can confidently state that the majority of the lawyers who appeared before me in York were more than competent: Most were prepared, respectful, and honest. A few were exceptional.

I also think it is fair to say that my colleagues and I each ran what is known in the law as a "hot bench": We familiarized ourselves with the facts of the cases and the applicable law from the initial master calendar hearings, and we expected the lawyers who appeared before us (both private and government) to do the same. York is a "detained" court, meaning that all the aliens in proceedings there are detained by U.S. Immigration and Customs Enforcement (ICE), and continuances for preparation cost the government money and the alien time.

There were a few notable exceptions: attorneys who would make nonsensical or plainly unsupported arguments, who were obviously not familiar with their clients' claims, or who were abusive to the court staff. They were far and away the outliers, however, and were notable because of that fact.

Many, on the other hand, were the arguments made by counsel that changed my mind and expanded my knowledge of the law. This is the highest praise that any judge can give (and the humblest statement that can be made by a member of a group not marked by its humility), and the mark of a good lawyer.

That said, most of the bad lawyers showed up once and never approached my courtroom (or those of my colleagues) again, and I think there was a good reason, which I will discuss further below.

My experience as a trial attorney was a bit more varied, however. Many lawyers I argued against were excellent, and have gone on to the bench themselves, or have become identified as leaders in the law. Some of my opposing counsel just did not seem to care about doing a good job, however: They were unprepared, lazy, and (on a few occasions I can remember) apparently under the influence. It was apparent that they had received their fee up front, and weren't concerned about their reputations.

Edwards asserts that such "incompetent and predatory immigration lawyers ... do enormous harm to immigrants, courts and the federal fisc."

The harm that a bad attorney could do to his or her clients is obvious: Showing up for court unprepared is often a recipe for a bad decision, unless the judge or ICE attorney can salvage the alien's case. It is noteworthy that in immigration court, both the IJ and ICE have an obligation to ensure that the correct decision is reached, even if the alien's lawyer doesn't help his or her client's cause.

The other two entities harmed by bad lawyering (the courts and the federal fisc) are less obvious, but Edwards' point is valid. As he explains:

A predatory attorney might take an immigrant's money and file baseless asylum claims. These meritless claims clog judicial dockets and increase detention times for immigrants with legitimate cases. And the costs quickly add up: The federal government spends about $158 a day to detain someone, according to a 2014 Government Accountability Office [GAO] report.

I have made a similar point before, but Edwards' explanation bears repeating: Fraudulent and frivolous asylum claims make it more difficult for those aliens who legitimately need protection for themselves and for their families to get that protection; asylum abuse is not a "victimless" peccadillo, it's a crime with costs, both human and financial. In addition, as GAO has noted: "[G]ranting asylum to an individual with a fraudulent claim jeopardizes the integrity of the asylum system by enabling the individual to remain in the United States, apply for certain federal benefits, and pursue a path to citizenship."

Edwards opines that "free market" economics "has failed to weed out the worst immigration lawyers for a variety of reasons":

For one, immigrants often do not understand complex administrative court processes or the details of immigration law, forcing them to turn to corrupt counselors. Community reputation provides only an imperfect guide. Predatory immigration lawyers sometimes enjoy good reputations in the community because the U.S. deports their victims. When only winners remain, immigrants never hear about the lost cases. State bars also struggle to police this behavior. It's difficult to file a bar complaint after you've been deported.

While there is validity to each of these points, I would not sell all aliens short when it comes to understanding the law. That said, the last point is the most obviously true. Frank Lloyd Wright once said: "A doctor can bury his mistakes, but an architect can only advise his clients to plant vines." Akin to the doctor and the mortician, a poor immigration lawyer can look to ICE to remove evidence of his (or her) malpractice. And, even bad attorneys get sympathetic cases, and those successes are the best advertising.

To improve the quality of the immigration bar, Edwards recommends a requirement that "immigration lawyers' track records" be disclosed to potential clients:

It almost certainly would drive some of the worst out of business. Who wouldn't shop around after discovering a lawyer ranked in the bottom 10% by client outcomes? Although no lawyer should be expected to win them all, immigrants should get nervous if their lawyer always loses.

While there is much to be said about this approach, I do not believe that it would be as effective as Edwards suggests, and may have some significant downsides, as Edwards himself admits.

There is no question that more and better lawyers would improve the immigration court system. Disclosure of the number of cases that a lawyer "won" and "lost" would definitely make it clear which lawyers received successful outcomes for their clients.

Edwards' proposal may, however, also give a lawyer disincentive to accept a close, but still potentially valid, claim. As he notes: "Some lawyers would try to game the system and duck hard cases to protect their records. It might make it more difficult for clients with more challenging claims to secure representation." Such a system could also make it less likely that a lawyer would take a case that involves a good-faith argument for extension of prevailing law. If lawyers did not take such risks, Plessy v. Ferguson and "separate but equal", would still be the law of the land.

Finally, this system would almost definitely undermine the premise that every alien has a right to counsel (albeit at no expense the government). If a lawyer is going to be graded on the outcome of any given case, he or she would have no reason to represent an alien who has no case at all. Facts (and law) can change, however, and without counsel, it will be up to the unrepresented alien, IJ, and ICE attorneys to spot those changes.

Instead (or in addition), I would recommend improving the immigration bar by improving the performance of the IJs. While it may simply have been my experience, my opinion is that bad lawyers avoid good, and prepared, judges, as happened largely in York. Conversely, when an IJ countenances the poor performance of an incompetent lawyer, or of a lawyer whose stock in trade is bullying and sharp practice, such behavior flourishes. Sometimes, I did not prevail in cases before what I considered to be good IJs, but I never thought that I failed to prevail in those cases because the IJs in question cut an incompetent lawyer an unfair break, or granted a case out of pity.

IJs have a lot of latitude in running their courtrooms, but they need to be trained to use that latitude to force the lawyers who appear before them to conform to an appropriate level of competence and ethical behavior. They also need additional preparation time to ensure that they know the record and the applicable law. Shysters can con an unsure judge, but this task is harder with a competent one who has taken the time to learn the case. And, no one wants to be embarrassed in public, but even the most cynical lawyer assiduously avoids humiliation in a court of law.

All of that said, Edwards makes a number of excellent, and seldom mentioned, points, which the Department of Justice should review. It is past time to begin the process of pruning the bad apples from the immigration bar.