Those Private Sector Immigration Lawyers: Part I

By David North on January 10, 2012

It is often said that the immigration system is broken.

The open-borders advocates use that phrase to mean that people who should be allowed to enter, cannot do so.

We restrictionists, on the other hand, use it to mean that people who should be kept out of the country are allowed to enter and to stay, when that should not happen.

These are both pretty straightforward policy observations about the utility of the immigration system.

But what about elements of the system that are broken in favor of one side or the other?

The generalized objectives of the open-borders types may, in fact, be achieved because sleepy officials permit the entrance of aliens who should be kept out. We don't hear much about that.

And, on the other side of the ledger, some aliens who should not be kicked out of the country are, in fact, deported because of the low quality of their advocates, their immigration lawyers.

Ah, that draws the eyes and the voices of judges, foundations, advocates, and journalists. If some piece of the immigration system is broken in our favor, that's what gets top-level attention.

I am certainly not saying that individual aliens should not have adequate legal counsel when they are in court. I am saying that this is an issue which gets ample, and often interesting, scholarly attention.

With that lengthy introduction let's turn to the recent Cardozo Law Review article on the shoddy shape of much of the private immigration bar that handles cases of individual aliens before the immigration judges (IJs) sitting in New York City.

It was written by the Steering Committee of the New York Immigrant Representation Study Project, which lists nine names of authors, many of them law school professors; it was supported by three foundations; it was all done with the cooperation of the U.S. Justice Department's Executive Office of Immigration Review (EOIR); and it was said to be inspired by a U.S. Circuit Court Judge, Robert A. Katzmann.

In short, it is the work of the Legal Establishment and can be seen here.

Would the same kind of heavy artillery and establishment support be drawn to, say, the extent of marriage-related immigration fraud that is, in fact, a broken system that more or less favors the interests of the mass migration people? I doubt it.

So what did the Cardozo article say? Entitled "Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings", it mostly dealt with the availability (limited) of lawyers for illegal aliens in immigration court hearings, but also provided some fascinating data on how immigration judges view the quality of the private bar representing aliens in their courts.

The results of a survey, that allowed the judges to say things about the private immigration bar generally and anonymously, showed that sitting immigration judges in New York City said that almost half of the lawyers before them (47 percent) were either inadequate (33 percent) or grossly inadequate (14 percent). Of the 33 judges stationed there, 31 responded to the survey, a very high response rate.

Think of it. The judges were saying that almost half of the private sector lawyers they were seeing were not doing their jobs. Much, much higher marks were given to pro bono lawyers and those from legal service agencies, arguing on behalf of the aliens. But the private sector ones represented something like 90 percent of the cases before the IJs.

I did not see a comparable study of the quality of the government's attorneys.

According to the report, these were the overall performance scores given to all the lawyers for aliens appearing before the immigration courts:

ExcellentAdequateInadequateGrossly Inadequate

These are the average scores for all the aliens' lawyers, so the ratings for the private bar would be lower still.

In another part of the study the judges were asked to rank on a scale of 1 to 10, with 10 being the best, their assessments of four different types of counsel, with these results:

Pro bonolaw school clinicNonprofitPrivate attorneys

Commenting on these results, the authors wrote:

This means that immigration judges rated nearly half of the representation before them as marked by various degrees of, inter alia, failure to investigate cases, inability to identify defenses or forms of relief, lack of familiarity with the applicable law or the factual record, inability to respond to questions about facts or legal arguments, failure to meet submission deadlines, or failure to appear in court.

When representatives fall short of basic standards of representational adequacy . . . the consequences to a person's case can be devastating and, as a practical matter, often irreversible.

Note that this study of legal talent dealt only with individual lawyers defending individual aliens, usually illegal aliens, who are among those that the government has selected to deport.

It does not speak to the quality of the immigration lawyers who guide our giant corporations through the intricacies of the various nonimmigrant programs, all to some extent exploitative, and all tending to shoulder aside resident workers.

Nor does the survey speak to the talents of those lawyers working for the administration who are busily crafting ways to use the existing statutes to create de facto amnesty programs.

All of these attorneys, needless to say, are all too talented.

As to what to do about the quality of attorneys representing the aliens in New York's immigration courts, that's the subject of another, subsequent posting.