Immigration law can sometimes seem like a completely administrative field of practice, full of federal forms and visa applications. But the reality is that there is a great need for immigration lawyers who are willing to fight for their clients in immigration court as well.
Still, for immigration attorneys just getting started, or those interested in expanding to removal defense or other in-court representation, this may seem intimidating. It’s one thing to work out of your office and have someone double or triple check your work before sending it out to USCIS. It’s another thing to be in front of a live judge, opposing counsel (which is a lawyer for the Dept. of Homeland Security) and your client, have to publicly present your client’s case, and think quickly on your feet.
Plus, the consequences of being unsuccessful in this arena can be grave for the client. Deportation from the US, loss of the livelihood the client has built and potential separation from family members are all potential consequences of losing a removal case.
Well, we’ve got you covered. The Hon. Charles Honeyman (retired), a former immigration judge who now serves as of counsel to a private immigration law firm, presented a webinar titled “Reflections of the State of the Immigration Court and the BIA,” where he shared his story of the decades he spent presiding over cases at the EOIR Immigration Courts in New York City and Philadelphia, how politicization of the court in recent years has affected the administration of justice and why he believes the immigration courts should be reconstituted as Article 1 courts.
This article dives into some of what Judge Honeyman had to say and builds on top of it to help you feel more equipped stepping into the courtroom. So, let’s look at the nuts and bolts of the immigration court system, some issues you can expect, and some ways you can prepare as you take your immigration law practice to the next level.
The nuts and bolts of the US immigration court system
There are 520 immigration judges in the United States sitting in dozens of courts around the country, who are appointed for life. Reuters reports that two-thirds of the sitting immigration judges were appointed during the Trump administration, meaning that there are a lot of fresh judges on the bench.
In terms of hiring, the final say on who becomes an immigration judge falls under the authority of the Attorney General. Immigration judges make decisions on whether someone is found to have broken the country’s immigration laws and should be removed from the United States. Their decisions are appealable to the Board of Immigration Appeals (see below), and in some cases, to the federal appellate courts.
The immigration courts fall under the Department of Justice, specifically within an agency called the Executive Office for Immigration Review (EOIR).
Within EOIR, the immigration court system breaks down further:
- Office of the Chief Immigration Judge (OCIJ) is the first level of judicial scrutiny within the immigration system. Immigration judges “are responsible for conducting formal proceedings and act independently in their decision-making capacity. Their decisions are administratively final unless appealed or certified to the Board.”
- Board of Immigration Appeals (BIA) hears “appeals from certain decisions rendered by Immigration Judges and by immigration officials of DHS in a wide variety of proceedings involving the United States and either an alien, a citizen, or a business firm.” Importantly, BIA decisions are binding on all DHS officials and immigration judges unless “modified or overruled by the Attorney General or a federal court.”
- Office of the Chief Administrative Hearing Officer (OCAHO) is a separate division that “is responsible for the general supervision and management of the administrative law judges who preside at” some immigration hearings related to unlawful hiring or employment practices, immigration document-related fraud, and unfair hiring practices.
For a long time, each of these branches of the EOIR had separate policies and, because of the complexity and layers of the immigration court system, it wasn’t easy to navigate. But in early 2021 that changed.
The Department of Justice actually released a policy manual in January 2021 representing the “first comprehensive review… in a single resource, and includes the Immigration Court and Board of Immigration Appeals Practice Manuals, the Office of the Chief Administrative Hearing Officer Practice Manual, and all current agency policy memoranda.”
Still, despite the progress within EOIR, it’s important to remember that immigration is a political topic and immigration judges are sometimes vulnerable to political pressure from within and without the agency, sudden policy changes, and more. So let’s now take a look at some potential issues you should keep in mind when navigating the immigration court system.
Issues and trends to prepare for when dealing with US immigration court
Immigration courts, for reasons ranging from a massive backlog of cases to continued politicization, have also become a source of frustration for some attorneys, particularly less-experienced attorneys, who might not know what to expect.
So here are some things to look out for and tips to keep in mind:
- You may go to federal court more often than you think. During the Trump administration, more cases went to federal circuit court than before. What that means for you as a lawyer is that, to the best of your ability, you should anticipate and prepare for each case as if an eventual appeal to federal court might be necessary. Familiarize yourself with circuit court decisions pertaining to the legal issues in your case. If your client is charged as being removable because of a criminal conviction, be sure you understand how the federal circuit in which the immigration court is located interprets the immigration consequences of that particular crime.
- Get familiar with the judges assigned to your cases and their proclivities to make sure that you comply with any particular requirements of the judge and to get an idea of how they may rule. This is where having a network of colleagues can be helpful; since immigration judges have a fair bit of discretion on how to interpret the law, and a prior decision by another judge may not have much of an impact on your case, it helps to hear from others that have had the same judge. Statistics on the percentage of grants vs. denials for some types of cases where the exercise of judicial discretion is decisive vary greatly among the immigration courts.
- Put all arguments on the record, even those beyond the IJ jurisdiction. If your case goes to federal court, this makes more arguments available on the record for future judges to analyze. Be sure to mention any procedural and other issues, such as an unsatisfactory interpreter, so these can be raised on appeal.
- Cases run significantly slower than in the federal and state courts of general jurisdiction, so stay on top of documents, dates and deadlines. There are a lot of factors that can slow a case down, including changes in the applicant’s status, motions for continuance, a criminal charge levied in the meantime, or clients changing lawyers. Go into each case thinking about the long run - you may not get a decision for more than a year, or in some cases multiple years, which makes having a streamlined case management system in place incredibly important to keep track of everything.
- Don’t take disagreements with opposing counsel personally. Believe it or not, government attorneys may not be happy about the positions they have to take in court. It can depend on the priorities of the current administration, job pressures felt by DHS trial attorneys, what the Attorney General is focused on at that time, or sometimes even the general political atmosphere. Treat your opposing counsel with professional courtesy at all times. They’re just doing their jobs, they’re not your enemy, and they might even want to find ways to work with you and help your client get the best possible result. Having said that, be sure to zealously advocate for your client by raising all justified objections.
- You may not hear about case changes until the last minute. During the COVID-19 pandemic, it wasn’t uncommon to find out about important court-related information last-minute and sometimes via unofficial channels. For example, many people found out about the courts closing through social media, rather than through any formal communication. Keep in mind that you could potentially have due process challenges in such a case, e.g. if a continuance is denied due to a last minute notice. This is especially important if you are working with vulnerable clients that may have limited access to email, or even physical mail, non-English speakers, or detained clients.
This list isn’t something you’ll read in most places, but it’s crucial to set expectations and prepare you for the realities of working in immigration court. It’s important to keep in mind the realities of practice just as much as the legalities of it.
So now that you know a bit about the immigration court system and some challenges and considerations to keep in mind, what can you do to best prepare to expand your practice or dive into representing clients in immigration court?
3 helpful tips you can follow as an immigration lawyer representing clients in immigration court
Whether you’re just thinking about adding immigration court representation to your practice or you’re already experienced and reading this article for advice, here are some universal pieces of advice you can heed to help you stay at the top of your practice.
- Attach yourself to a group or organization of immigration attorneys. Whether you decide to join a professional organization like the American Immigration Lawyers Association or the immigration section of the Federal Bar Association, or a more informal Facebook group like Nerdy Immigration Lawyers, these groups are extremely valuable resources. From official publications and conferences to candid, open-ended conversations, you can learn a lot from existing content. If there are local organizations, or Facebook Groups, for example, that address the specific work you’re doing, join them too. Not only does it provide access to professional development, but it will help you find other lawyers with whom to share your experiences and insights.
- Connect and support other immigration lawyers on social media. This might seem silly, but especially in the work-from-home age of COVID-19, professional relationships are built online now more than ever. There are immigration lawyers across all social media platforms, including Facebook, Instagram, LinkedIn, YouTube, and even TikTok, and you can build real relationships by engaging with their content and eventually reaching out and connecting. In addition to the broader industry knowledge you can gain from groups and organizations, building this personal support system can help you create a sense of community, easily get advice on a case, or find your future co-counsel, partner or employer.
- Finally, make sure you’re taking care of yourself. Practicing removal defense or otherwise representing immigrants in court can be emotionally taxing - clients may have to relive traumatic experiences, court dates may be rescheduled, and rulings may be unpredictable. In other words, the pressure is often on. Indeed, it was widely reported that during the Trump administration, burnout amongst immigration lawyers was incredibly high. Yes, this is very important, life-changing work, but it shouldn’t come at the expense of your own well-being. Remember that you have to take care of yourself before you take care of others, so if you need to take an extra day off, go on a short vacation, treat yourself to something small, like a nice lunch, meditate, or something else, do it and don’t think twice. Your clients, and your own well-being, will thank you for it.
Let Docketwise handle your immigration forms and case management while you get started in immigration court
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