James Pittman: Welcome to Immigration Uncover, the docket wise video podcast where we dive deep into the fascinating world of immigration. I'm James Pittman. This is episode 38, and I'm here with Rekha Sharma Crawford. Rekha is the current treasurer of AILA, the American Immigration Lawyers Association. She is a cofounder and partner at Sharma-Crawford Attorneys at Law.

James Pittman: Rekha, welcome, and thanks for joining us.

Rekha Sharma-Crawford: Thank you so much. I appreciate, being invited.

James Pittman: Well, we're gonna talk today about the topic of ineffective assistance of counsel in the immigration context, and it's a it's a subject that Rekha has been doing a tremendous amount of work on, so she is really at the forefront of, trying to create change for the requirements for IAC claims, and we're gonna get right into it. So, Rekha, first of all, can you so let's talk a little bit about the concept of ineffective assistance of counsel in the context of immigration law. What is it? When does it arise?

Rekha Sharma-Crawford: Ineffective assistance of counsel is the same in any area of law. Right? And it's what it looks at is is whether an attorney's conduct has been deficient in some way, and that has then resulted in someone being harmed.

James Pittman: Okay. So what are some examples of ineffective assistance of counsel that arise in immigration cases?

Rekha Sharma-Crawford: So you may have things such as where an attorney fails to properly assess a case for all forms of relief. You may have a case where, you know, there was either cultural or other societal norms that an attorney didn't take into consideration, didn't present to immigration, in the cut to provide context and nuance about a case. It may be a missed deadline. So it may can vary in terms of what it looks like, whether it's in immigration court, whether it's not in immigration court. It could be affirmatively before US CIS. And so, you know, errors on a form that were inadvertent. For example, an easy one is is that, you know, in in other cultures and other parts of the world, the date is put differently. Right? We put we put month, date, and year. Other places put it date, month, and year, but it can have a profound impact in terms of creating a discrepancy in the application itself. It's an error, but it is a form of ineffective assistance of counsel.

James Pittman: Okay. And we're gonna get into talking about, the immigration court context in a minute because that's where we get into our Lozada motions. But, if you're if you're pursuing a claim of ineffective assistance of counsel and it's outside of immigration court, how exactly is that going to be different in terms of the the process?

Rekha Sharma-Crawford: So most commonly, I mean, ineffective assistance of counsel is is a term of criminal art. Right? So what I mean by that is it is a term that is born out of the criminal courts. In civil proceedings, it's usually called malpractice. It's not called ineffective assistance of counsel. So in reality, what's happened is is in the immigration context, we use the nomenclature from from criminal court, but then we pile on other requirements that aren't bounding from But one thing I do want to to bring up, which is that Lazada motions can appear, you said, you know, only in the context of immigration court. That's not necessarily true, because even the USCIS side of the equation will require the filing of a Lazada, disciplinary action, and to meet the criteria of Lazada even when in before an affirmative form of relief is requested and the claim being based is ineffective assistance of counsel.

James Pittman: Okay. So now how does ineffective assistance of counsel impact the outcomes of immigration cases for individuals? I mean, you know, just give us some examples. Obviously, if you're if you're in immigration court, it could result in a removal order. What are some other examples?

Rekha Sharma-Crawford: I mean, if you're before USCIS, it can result in a denied application. It could be result in a missed, deadline. It can result in a missed RFE response, so I mean it can have some huge consequences, and especially when you're dealing with backlogs, where you're dealing with priority categories, whether where you're dealing with, deadlines, heal deadlines in immigration court before the circuit court deadlines, like it can come up in a variety of ways, but, again, I think it's you know, the the concept is very uniform across all practice areas. It's just applied very differently in the immigration context.

James Pittman: Okay. So, the way that I've personally seen, ineffective assistance of counsel mostly has been, you know, back when I was practicing in immigration court, we talked about a Lozada motion. A Lozada motion was what you filed when, you know, a client came to you and they had a removal order, and you wanna go back and reopen proceedings and, you you know, because you've discovered that the prior attorney, you know, didn't do certain things or failed to do certain things, that resulted in the client's case, you know, not being, you know, properly put forward, and and they got a removal order. So let's let's talk about that. What is the Lozada framework? I'll give the question to you, and and why was it established?

Rekha Sharma-Crawford: So this is kind of a little bit in the weeds, but I think it's important for people to understand, especially those people who don't practice in immigration law, because when you talk about ineffective assistance of, counsel to people who don't practice immigration law, they're pretty astonished by the Lazada requirements. Now there are certain things that are common across across, disciplines. So for example, the idea that you have to establish that there was an attorney client relationship, Rekha common in in a variety of disciplines, that you have to establish that the the prior counsel's conduct was deficient and did not rise to what a normal reasonable attorney in that situation would do. Again, very common across disciplines. But then here's where it gets weird, which is that in the immigration context, what you have to show is is that you filed a bar complaint with the disciplinary adviser, provided an opportunity for the attorney who was facing the disciplinary action to be able to respond to that, complaint, and then include all of that with your motion before the immigration court or before USCIS, and then, of course, show that there was harm, there was prejudice. So this you have 3 of the 4 criteria are pretty common across, legal disciplines, but this requirement, this mandatory compulsory requirement of having to file this disciplinary action, with the disciplinary advisor and the ethics committee, with the state bar, basically, is so unique that it really is the only immigration practice is the only area of of law that is that is, bootstrapped with such a requirement.

James Pittman: So just to highlight this, so let's say in the if you're doing criminal defense and someone gets, you know, convicted, they go to a subsequent attorney to, hey. My attorney screwed up. I got convicted of the crime. You go back to the, let's say, the state, you know, criminal court, and you could try to reopen the case claiming ineffective assistance of counsel, but you would not need a bar complaint. But is everything else that you we've talked about with Lozada is would pretty much be the same?

Rekha Sharma-Crawford: Right. You mean you would basically present to the court, you know, look. Here are the facts. Here's where the conduct was deficient. And then, you know, the court would look at the record, hear the evidence, and make a determination. Was was there a prejudice? Was there harm here? And if there was, justice steps in as it should, and it allows for the opportunity to hear that error. So that's exactly right. You'd only have to file a bar complaint because you've because the court, the criminal court, is empowered to be able to just to dole out that justice as the facts determine.

James Pittman: Now so in the immigration context, it's the BIA, the Board of Immigration Appeals, that came up with this framework and imposed this requirement of of filing a Rekha complaint. But How long ago was it? That's been around for quite a while, and has it ever been challenged before? So 35 years. Right.

Rekha Sharma-Crawford: So it's been around for decades. And this is one of the things that I think is so critical to to understand is is that generation after generation of immigration attorneys have been taught that this is normal.

James Pittman: Right.

Rekha Sharma-Crawford: And, you know, when people who don't start in immigration, like I did, I didn't I didn't start out in immigration, when I first entered the field, I was like, what is this, and how is this normal, and how are people not just completely befuddled by what is happening here? Like, this is nonmoral, but what I like to say is it is not normal, to file bar complaints. That is not a normal thing. Right? Yes, the the the legal system and lawyers are empowered to self lease, and we should. And where there is, you know, people who are acting, you know, in a unethical or improper way, they're still subjected to the bar complaint requirements, and that this effort doesn't change that in any way. But the normalization of filing bar complaints just to seek justice, that's abnormal. That's not normal.

James Pittman: Has it been challenged to any of the circuits? I seem to recall having seen that some of the circuits were circuits were, federal circuits were making exceptions to the LISADA requirement. So, yes,

Rekha Sharma-Crawford: it has been challenged. And what I can tell you is is that every circuit has found that substantial compliance with Lazada is required. Okay. But with regards specifically to the Rekha complaint requirement, what the courts have said, and there are some jurisdictions that have held, that it is not, with that where the record is clear, that it is not a determinative factor, that you don't file the bar complaint, but you still must explain why you didn't. And and part of the issue is is, you know, prior to, Loper Breit coming down, Chevron deference was a very critical piece of the analysis in Lazada.

Rekha Sharma-Crawford: So this even the federal courts were deferring to the Board of Immigration Appeals to say, you know, Chevron Deference says that we will let the agency make these determinations, and we will defer to the agency. So what you see right now is is you have the patchwork of courts in the circuit arena that some allow for it, some don't allow for it, some are strict compliance jurisdictions, and they don't allow for any wavering of filing of the bar complaint requirement. Now, you know, what's what's really fascinating is is that it really is when you start to kind of look at the history of Lazada and also the practical side of how Lazada works, what you see is that the immigration courts never wait for a decision from the disciplinary adviser. So again, if we're gonna force you to file it, but we're not gonna wait for the outcome, then what mechanism does it serve?

James Pittman: What's the import of of their decision then if the immigration judge is waiting for it exactly?

Rekha Sharma-Crawford: Exactly. And so when you delve into the history of Lazada, you know, part of where you get the most amount of information is you get some dissenting opinions. They start with Lozada, Rivera, you know, and you really get people who are in the in, you know, behind the curtain, so to speak, at the board saying, well, this doesn't make any sense because you are forcing people to do Pittman. And it was, it was board member or chairman Paul Schmidt who basically said, look, you know, I don't need a bar complaint to tell me how to

James Pittman: look at the record. Right? Because if you're going to be anointed as a as a adjudicator, as someone who's, you know, empowered to make decisions and make right? It's also strange from the vantage point of, like, filing a bar complaint is a mechanism for someone to seek redress of being wronged by an attorney, but it's it's it's, something that can be exercised or not exercised at the discretion of the aggrieved party. So I I'm trying to think of as you're talking, I'm trying to think of whether I can think of any other examples where a court is requiring you to avail yourself of a grievance mechanism in order to actually adjudicate what is otherwise a completely legitimate, you know, factual issue.

Rekha Sharma-Crawford: There are no other areas. In fact, there isn't. And when you look at it from traffic court to the US Supreme Court, there are no other areas that require this. That's what makes it such an anomaly. Right? With 35 years of indoctrinating attorneys to say this is normal, this is what we should be doing, has had such a profound impact on the practice. And I would say not a good one.

James Pittman: Right. It it really has. And, I mean, again, I mean and and so when I got into the field, it it was already something that had been around for a long time. It's just something you sort of learn. If, you know, it becomes second nature, there's a Lozada motion. If you handle removal cases, be careful because if you if the client gets a removal order, the next attorney could file a Lozada motion. It's just something that you you, you know, learn to, that is out there. But let me ask you this question. What did the board think that it was trying to accomplish by making that requirement?

Rekha Sharma-Crawford: Now this is a little dicey because I will tell you what my interpretation of course, I can't speak for the board nor would I ever try. But what I can tell you is is that when you look at matter of Rivera, which is a subsequent case to Lazada right. So before I go there, prior to Lazada, the Strickland standard was also applied in immigration proceedings. So you get to, you know, prior to Lazada, matter of Garcia, all of these cases exist that say James kind of thing, deficient behavior and then prejudice. Right? And which is consistent with with with the, Supreme Court decision in Strickland v Washington. A criminal standard terminology is criminal, ineffective assistance of counsel is a criminal concept. So, yeah, all of that seemed very logical. You get to Lazada. They implement this procedure, and you really start to understand why the board goes here when you look at matter of Rivera. And what you find is if they use the word collusion about 13 times. Right? And so what they're concerned about is is that really what they're telling you is is that immigration attorneys, unlike every other attorney out there, is somehow going to violate their own oath and their own, you know, due diligence and their own character and their own ethics to hallow with their, clients to try and somehow James the system. And quite honestly, I find that to be incredibly offensive. Right? Because I don't think that most immigration attorneys are like that. I think when you look at how it then plays out, it almost feels, I would say, punitive to say we're going to try and punish immigration attorneys because we know certain things. We know that those individuals who are represented by counsel in the immigration process fear better. So it's almost this deep seated, you know, way to kind of, punish not only the attorneys, in my opinion, it's also to punish those noncitizens, who are going through the process. And it just feels that way when you go back. Now, again, let me be clear. That is my interpretation. I am not I'm not speaking for the board. I cannot say that is exactly what they were doing. But when you use the term collusion that many times, I can't say I can't think that that isn't a compliment.

James Pittman: Right. And you wonder it makes you it just begs the question of was if that is in fact what they were thinking, was there any data upon which they, you know, could base such a a line of reasoning, or is it, you know, is it just something purely anecdotal like they saw maybe one example of that? Or, you know, and all of a sudden that loomed so large. It it just makes me wonder, like, why do they think that it you know, collusion, would occur? I mean, what what are they basing that on? But, anyway, we we don't we don't have the answer to that question, but it is a question that just jumps out at you as you're as you're explaining your interpretation.

Rekha Sharma-Crawford: Well, and, I mean, I think the other piece of it is is, again, we're talking about 3 decades of history. So let's assume that, you know, there was there was something that they were looking at. The problem now is is it is so baked into the system that they've never went back and looked at it to say, wait. Have we cured the problem? Whatever. What was it going on? Have we solved the problem? It's so baked in now and normalized that there's never been any case that has now gone back and said, hey. We wanna look at what the look at what the dissent was saying in Rivera and in Lazada, and and they predicted it. That's the beauty of it. In Lazada and Rivera, the dissent predicts this. It says, we think this is gonna have a profoundly negative impact on the practice. So with that out there, right, even assuming, and let's assume good intent, even assuming that that the board at the time had good intent and they were actually trying to cure something that was going on, you would think in 3 decades over 3 decades that they would have then gone back and relooked at.

James Pittman: I mean, first of all, ineffective assistance of counsel is something which, while not, you know, very common, is is certainly something which is not exactly very rare. It is a it is a a problem which is somewhat significant. Right? So you would think that if they actually were targeting what they thought was the root of the problem that it would have it would, you know, beg revisiting at some at some point, And clearly that hasn't, that hasn't happened, which just brings us to, you know, where we are in things now. But let's before we get to that, let's talk about just a little bit to, some more context.

James Pittman: Why do many practitioners and clients find specifically the bar complaint requirement problematic?

Rekha Sharma-Crawford: It's a barrier to representation. It really is. Immigration attorneys, you know, are are fearful. I mean, you look at how many parameters could possibly come up. I mean, you look at right now what's going on in immigration courts with the matter of Fernandez, and Neesh Chavez, and all of these permutations. Right? And it's like, well, if I didn't make an argument, was I ineffective? And if I did make an argument and the board later makes a different decision. I mean, for for most determinants across disciplines, they will tell you dealing with the the disciplinary adviser is terrifying. I mean, it's the one thing in law school they really kind of hammer into your mind to say, do things correctly because you don't want that call from the bar saying, hey, we have a bar complaint against you. So you have attorneys who refuse to take removal cases, even though we know that those people who had representation in removal proceedings fare better, even though we know that immigration is as a discipline only second to the tax code, and so the complexity of it is there. But you are having individuals who say, I don't want to practice this because I don't want to stress it. And so so then you have those kinds of issues that go on. On the flip side, you have noncitizens who huddle from places, not everyone, but a large majority of them come from places where, you know, authority and how authority is seen is questionable. Right? And so there's this inherent fear of, if I'm going to file a bar complaint, whether it's against my prior lawyer or whatever, what kind of retaliation do I face? What kind of retribution do I face? And so you have people who walk away from relief or walk away from, you know, things that they may be entitled to because they too are scared to do it. So it and it's kind of a pressure situation. You have attorneys that are not willing to take the cases. You have clients who are too scared to to raise the claims, and so you have this barrier that gets created that's a losing these proposition for the system.

James Pittman: It's like a vicious circle. There are a loop a loop that's created where you've got, you know, the the respondents who are, you know, maybe or typically are quite unfamiliar with the legal system. They already feel like they're in trouble because they were in removal proceedings. Now that you're asking them to get further entangled, you know, in legal proceedings by filing a bar complaint, and they're unfamiliar with that process and and unfamiliar with attorney ethics and and, you know, probably very inhibited from doing that. And then you've got the attorneys, Raiju, who don't wanna, first of all, they don't wanna besmirch or attack a colleague, and they don't want anyone turning around and attacking them if they should lose a case. You know, if they should do their best, lose a case. They don't wanna be accused of not doing their best. So it's a it's a vicious circle. Wouldn't you agree?

Rekha Sharma-Crawford: I mean, I think that's right. And and I think there's there's also a slightly nuanced issue that has come about in again, I think they predicted it in the in the dissents that were Rekha. And that is that think about, you know, when we go into criminal proceedings, it's the not it's the defendant versus the government. Right? And there is a power differential because the government holds all the cards. And they're willing to kind of look at the situation and say, okay, you know, what does justice Rekha? And they feel empowered to be able to do that in most instances. Right? Here, you pit 1 immigration attorney against another immigration attorney until he creates a very it it creates an environment in the practice that sometimes is uncivil.

James Pittman: Yeah. It it's, like, vituperative, I guess, would be a good word. Yeah. Are there any ethical and professional concerns for the attorney that, would have to file the complaint? Let's say you do a lot of removal proceedings.

James Pittman: Let's say removal is everything you do, and you you're you're dealing communities where you see a lot of people getting removal orders and you're find yourself in this position of trying to reopen cases maybe maybe several times per year. Are there any concerns that an attorney in that situation would have to have that you can think of?

Rekha Sharma-Crawford: You know, it's interesting because the ethics codes, across the nation say that an attorney should not file. It's unethical for an attorney to file a frivolous bargaining point.

James Pittman: Understandable.

Rekha Sharma-Crawford: Right? Okay. But if I can only access the court by having to file a complaint, then, arguably, I am now having to violate my own ethics code in order to comply with what the board requires me to do. That's also a very weird kind of a situation because if I know that, you know, attorney a had, made a mistake or and and attorney is willing to say, I made a mistake. Right? A mistake is not necessarily an ethical violation. Right? And so now I have to say, and this is the thing, right, in Rekha court people do it all the time. Criminal defense attorneys will come in and say, especially where you're dealing with Pittman immigration types of issues, where they will go in and say, you know what? I didn't really understand that a plea to marijuana was gonna get my guy removed. I needed to know. Right? Then the prosecution will come in, and and the, defense attorney will sit down and go, look, we we want our debt to society. We want to be able to hold them criminally liable, but by the same token, none of us want this guy to be deported. So, I mean, it is kind of this thing where, you know, in order to comply with Lazada's requirement, there is no you can't self report and say, well, you know, the attorney said that they made a mistake, and I'm attaching an affidavit to the motion. Board has said that's not good enough.

James Pittman: Yeah. But, I mean, it does I I I just wanna counter just a little bit in that it does, yeah, certainly unethical to file frivolous bar complaints against colleagues for sure, but it places it does place the onus on now, again, it's putting them in a position where they're feeling compelled to do that in order to avail themselves of the the Lozada framework, but it does put the attorney in a position where they have to really exercise judgment as to whether is there really a good faith argument that prior counsel was ineffective and breached breached the standard of care, if you will, or, you know, is is is the claim that I'm making if I'm only making it to comply with Lozada, but there's really nothing there that truly rises to the level of ineffective assistance of counsel or violation of ethics or a negligent mistake. You know, you shouldn't bring it. I agree. It's definitely by far a to say suboptimal is putting it mildly. It's a it's a very problematic framework to impose that requirement, but, you know, attorneys who are trying to get cases reopened for an effective assistance of counsel, I mean, they they need to exercise good discretion.

Rekha Sharma-Crawford: No. That's true. And and, you know, like I've always said, this this effort does not in any way take away from a bad actor doing bad things. They're always gonna be held accountable. Right? That is a proper use of the bar complaint requirement. It's why it exists. Every disciplinary advisor out there will tell you that that is why it exists. But I think the problem that happens is that if you have somebody, let's say that I and I've I've had to do that before where I've self reported. It was a miscommunication, an absolute miscommunication between me and the government's counsel. Right? It I had the email to show it was a miscommunication. That's all at once. In any other area of law, a judge would have said, clearly, the evidence is there. We understand it was a miscommunication. It wasn't anything else. It's not an ethical violation. It's just a miscommunication. The judge would judge said, no. I'm not gonna allow for it. Government stood mute, and I will tell you I self reported to the bar. And I said, I have to report myself. And they said, but you didn't do anything wrong. I said, I understand, but I only have a way to get back into court.

James Pittman: My goodness. This is I let's highlight this because this is gonna seem so far fetched to people who don't practice removal defense. There was a good faith mistaken communication Yeah. At your first between you and the DHS attorney, and you brought that to the attention of the court and the court not to respond, they reopen? No. So you've actually had to file a bar complaint naming yourself. Yeah.

Rekha Sharma-Crawford: So that was the only way I could protect the client. Right? And I literally, literally said I don't even have another but see, that's my thing. Is that a frivolous Rekha complaint? I think it is. I think it is absolutely a frivolous bar complaint. But here I was in the situation, and I said, well, I'm not gonna let anybody else file a frivolous bar complaint, so I'll just self report. And I kid you not, that was the only way I could it was and I'll give you the situation. It was a situation where the client had to go get their fingerprints taken, and there was an agreement that was, you know, these these these disconnects that sometimes occur between how USCIS is gonna fingerprint somebody in removal proceedings, and how do you get them to get fingerprinted and whatnot. I had an entire email chain, with with government's counsel that said, you know, we need to get fingerprints taken, and me saying, can we please get them fingerprinted? Can we please get them fingerprinted? We walk into court. Fingerprints aren't done because we don't have a way to go show up at a USCIS to get the fingerprints done. Right? Judd says the application's abandoned. I said the application's not abandoned. We're trying to get them done. It was absolutely just a miscommunication in its clearest form. And to me, that's what I say when I'm saying you can't have form over something. I mean, the discipline where the disciplinary adviser basically laughed at me and said, why why are you even filing? Right.

James Pittman: They never even heard of it probably.

Rekha Sharma-Crawford: Well, they're like, this should why do you have to file this? This doesn't make any sense. And I'm like, I understand, but I don't know what else to do here because I have to comply with the Lazada requirements. And to me, that is such a tangible example of why a system that is put in place that is so rigid that it doesn't contemplate things like plain error, so it doesn't contemplate things like, you know, simple mistakes, and and it forces us into these kinds of paradigms, I think there's a huge problem.

James Pittman: I agree. I mean, it's clearly an elevation of form over substance, and it does make you take take me back to what we're saying earlier. It does make you think that when they created this requirement, the board didn't really look at at how this was handled in other areas of the law or, I mean, it makes you makes you wonder whether they looked or they didn't look. It doesn't sound like they they look closely enough at how it was handled in other areas of law.

Rekha Sharma-Crawford: But they were using the same thing, though. That's the part that I don't understand, is up until Lazada gets decided, they are running parallel on the Strickland stand. So there's clearly a shift, and again, I it's before my time, so I can't say what was going on in the early eighties when, you know, or mid eighties when this when this decision came down. I don't know what the political climate was. I don't know what was happening, but clearly something shifts. And at that point, though, it gets so baked in that no one ever goes back to look at it again.

James Pittman: It was a little bit prior to, it was a little bit prior to, well, Ira Ira's nineties, but this, I I think, was like, there were, you know, post Reagan amnesty and leading to some of the stricter immigration, laws that came in with the effective death penalty act and and certain other immigration laws that got kind of thrown in as as amendments to that leading up to IRA, IRS. So I there was I think there was momentum toward getting stricter, but it makes you wonder, you know, what was going on in the early eighties that that put their head in this place. So in this so prior to Lozada, like you said, they were under the Strickland standard, and they were they were handling ineffective assistance of counsel claims in the immigration court. They were doing it the same way as you would have done it in any other court.

Rekha Sharma-Crawford: Exactly. And they were looking at me. Judges were doing judgy things. They were looking at the record, and they were determining whether the facts showed that the the attorney's conduct was deficient, and they were assessing prejudice. So they were doing all the things, and then and then and and then, of course, something shifts.

James Pittman: Yeah. Alright. Let's talk about the movement to rescind the bar complaint requirement, which you are a big part of. So tell us about your efforts to spearhead the movement to rescind the bar complaint requirement.

Rekha Sharma-Crawford: So about I'd say about, 2 years ago now, I mean, this was something so just so so in full disclosure, I'm a prior, assistant district attorney, so I came my roots were in the criminal world. Right? And so that's kind of where I cut my teeth as a lawyer, that's where I learned my trial skills, like, that's where I went. So to me, when I first shifted over to immigration, it was the same thing, I'm like I don't understand what's happening here, like this didn't make any sense to me at any level. And so, I, for years, kept saying this makes no sense.

Rekha Sharma-Crawford: This makes no sense. This makes no sense. And I, got to know a lot of the judges from the former round from who had the prior, immigration judges. They've now become for the roundtable of former immigration judges. I think that's the that's their, the the name of the organization. Anyways, and as we would speak, I don't understand this. And one of the people that I got to know was, former chairman Paul Schmidt and, former board member Laurie Rosenberg. And these are all folks who are, you know, legends in immigration law and were part of the dissenting voice when Lazada came through. And, you know, one of the things I kept asking them is, why does this thing exist like this? And they said, we think that it's it's being used improperly. And that kind of fueled an already lit flame, to say we really need to undo this. And I will tell you, initially, it's funny when you tell people who are used to something that is abnormal as being normal, they don't always initially see it. And so the more and more I kept saying, but look, folks, there's no other area of law that does this, and you can't tell me that you don't have bad lawyers in property law, you don't have bad lawyers as divorce lawyers, you don't have bad lawyers as, you know, as, criminal defense. Like, you have deficient conduct across the board. Right? You may find people who are to do things in a deficient manner, but you're telling me that the only part of the legal process or legal discipline that is subjected to this is immigration lawyers. Why? And no one could answer that question for me. And slowly, I think they did go look to see, wait a minute, we really are singled out as a profession. And so that's kind of where this effort took place. And as a result, you know, I think there's been, the voice and the and the efforts and the movement has gotten louder and louder as people really kind of started to say, yeah, this doesn't make any sense. And and where you see how it's applied practically in the field, Ego James doesn't make any sense. And so, you know, I am I was but one voice. I there are now 1500 more voices, other organizations that have joined in. And, you know, I feel like the more people see it, the more they see why this needs to be changed in a in a in a in a in a really realistic way.

James Pittman: Okay. Now how how are people organizing to do this? You mentioned 1500 other voices. I mean, how's how is it how is the movement taking place?

Rekha Sharma-Crawford: Yeah. So what started is is literally that, a group of us that said we wanna change this. And, we started a petition that was designed to be sent to, you know, the administration to say, look, this is not fair. What's happening here? It's unjust. And that is now, like I say, there's about over 1500 signatures from AILA attorneys, who have and and that petition has been circulated to some of the members of the, of the administration. Subsequently, the AILA ethics committee, well, let me back up. Through the work of the the small work of us that started, we were able to, get, professor Carla McCandless, who was with Vanderbilt University. And she said, you know what? I I have an interest in this, and she put her students to work to do the deep dive into the jurisdictions and really, create a document that we could use to build from. That document was turned over to the AILA ethics committee. The AILA ethics committee then did a full on, full throated review of Lazada in this requirement and came to the exact same conclusion. That It says, wait, we really are the being singled out here. Right? And so, the AILA ethics committee then was able to put forth a recommendation that the the the bar complaint requirement in Lazada be rescinded in its whole in total. And, then that is kind of kind of grown from there. You now have, Elonku was putting forth a lot of efforts and a lot of energy, to try and and move the needle and and really bring this issue to the forefront, which I think 17,000 members, in this profession. We want to bring in more members. We certainly don't want people to not be a member. And I think that AILA has recognized that, yeah, this is something that membership cares about, So then they have put forth that effort. What then happened is that, the AILA Law Journal did a piece on it. We authored a a, article for the AILA Law Journal. And then most recently, senator Chris Murphy from Connecticut put forth legislation to say, I hear you. I think this doesn't make sense, And, you know, we should put it in the statute because, really, there's nothing in the statute even that requires a bar complaint be filed. And so we should statutorily make it on an even playing field and remove barriers to access to counsel, remove barriers to due process, and, strengthen the immigration process.

James Pittman: You've talked about circulating the petition to members of the administration. I mean, it seems to me there are 3 routes you could go. 1st of all, so if you're circulating to the administration, I mean, your ultimate audience would be the attorney general because he can snatch cases away from the BIA, make rulings that the BIA is bound to. So that that, it seems to me, and correct me if I'm wrong, that would be 1. Number 2, you're talking about congress potentially enacting legislation that would fix it at the statutory level and have it sort of hard coded into the statute.

James Pittman: That would be 2. And secondly, the litigation route, I mean, going going to the the circuits or up to the supreme court perhaps to to resolve the issue. So, out of those three potential roots, I mean, how how far are we? First of all, has is litigation also being tried or contemplated? And on the legislative route, I mean, what advances have been made, or is it just, something that's in committee right now?

Rekha Sharma-Crawford: No. I mean, I think, you know, senator, Murphy has introduced legislation, so that is there. I don't know if it's gone to committee yet. I don't know. I know they've been on break and recess and whatnot, but they they clearly have an interest in seeing this through. With regards to the attorney general, I think, Ayla has created a specific new petition, and we're encouraging people to sign. That is directed directly at both, secretary Mayorkas and to attorney general, Barland to say, look. You 2 should buy or pass joint regulations because, like I said, this is an immigration law issue. This is not just a removal issue, because we see it on the USCIS side as well. So I think there are some, you know, some efforts on that end as well to try and put it in front of the administration. Yes, I agree with you, I think that attorney general Garland could very easily and very quickly, at least, change course by taking Lazada or some other case on certification and kind of reassessing whether this framework still works Rekha and a half decades away from what had whatever was happening in the eighties. So that can happen. The other piece of this, when you asked me about, about litigation. Now here's the problem with litigation. I think we're a little bit stronger with Chevron deference gone, because I think now there can be arguments made to the court to say, look, it's not in the statute, it's not consistent with anything else, reevaluate. But, you know, it's if it was hard to get Rekha and a half decades worth of of baking in, if you will, within the practice, you know, cleansed out. I think think about courts who have precedent after precedent after precedent of saying, we think the administration is absolutely reasonable in doing this. Boy, to try and now put that forth again and say, can you relook at this again? It's gonna take a little time to get us there. There's so much water under that bridge that it is gonna take a little bit of time, I think, to to go up the proper channels. I mean, that doesn't mean those efforts are being abandoned. I just think that it's a long road.

James Pittman: Which way do you think is is the way it's ultimately gonna get resolved? Can you tell? I mean, do

Rekha Sharma-Crawford: I think we'll know more from the election.

James Pittman: Do you think it's a partisan issue? Or

Rekha Sharma-Crawford: It's not a partisan issue, but, unfortunately, immigration and the political climate are so tied together in the United States that I think it's gonna be very difficult to say that that it can completely be divorced from the political climate.

James Pittman: I could see the whole issue getting twisted into and used in a sound bite somehow if if, the attorney general decides to to change it. I mean, I guess that's just, you know, my worries about things, because, you know, that's happened with some other issues. But, anyway, so it's too early to tell exactly, you know, how we're gonna win this win this battle, but you've got several irons in the fire in congress in with the, with the Department of Justice and DHS, petitions circulating, and then potentially the Chevron deference going, perhaps the the litigation route as well. Has you may have said it, but has, has any litigation been started, or it's something which, you know, you you y'all you think it needs to be contemplated, you know, moving forward?

Rekha Sharma-Crawford: So that's the difficulty. Right? I think that part of the problem is is, I mean, Lazada is still good law. And so, you know, we can alternatively make the arguments that say, well, we think that the record is clear, and therefore, you know, we don't think that a bar complaint is necessary. Rekha the problem becomes is one attorney is not going to file the bar complaint and now face a bar complaint because they didn't comport with the framework. Right? It almost becomes that that, snowballing effect. That's why I say it's just that you're almost trapped in that box a little bit, because until Lazada is amended, you're stuck with the framework as it exists. So the only thing we can now do is kind of make the alternative arguments, but understand that really in those jurisdictions where maybe substantial or strict compliance is not there, that may be certain jurisdictions that are more fertile for some of these new arguments.

James Pittman: If changes are made and the bar complaint requirement is removed, how do you think that's gonna impact the overall quality of legal representation in immigration?

Rekha Sharma-Crawford: I mean, I think that we're going to see, people Rekha. You're gonna see representation increase. Not because of any other reason, but because people are not going to decline rep representing people in some of these that have some of these issues. I don't think any immigration attorney is afraid to stand up and say, look, judge, there was a problem here. We need to look at it again, and can we fix it? I think what they get weary of is this idea of having to turn on a fellow immigration attorney for the sake of meeting this mandatory requirement. I've declined representation. I'm still not gonna do it. I because, again, I know what it feels like to undergo this stress of having to file a board complaint because, like I said, I did it to myself.

James Pittman: So is it something that you're publicizing heavily within AILA? Are there any other ways that you can think of that could get the word out? You know, maybe, you know, if it's if it's something that how are people encountering, you know, the the petition and and the movement? Is it something that's being circulated to all members, or have you made a video about the issue? Or are you giving talks about the issue, giving sessions at conferences about the issue?

Rekha Sharma-Crawford: Yeah. I, I you know, all of those things. All of those things are going on. We're also you know, the ABA has come forward and recognized that the bar complaint requirement is problematic, and it does serve as a barrier, and it is a problem. It impacts due process. So I think the ABA has come forward. The roundtable has come forward. So you are like I said, you are seeing some of this now amplify, with regards to various different entities coming forward, Usain. We recognize this doesn't this isn't working. I think all of us realize that if you eliminate the bar complaint requirement, whether you're on the government side or you're on the respondent side, you are going to build a better, stronger system because you're going to open avenues to due process. And I've never met an attorney who says, yeah, I really don't like that whole due process thing. I've just never met that attorney. So I think, you know, I I do think that most of us want to see justice prevail. We want to see due process protected, and I think that by eliminating it, you start to see a system that is far more durable and a far more, stronger system.

James Pittman: Now do you think there's any value in having input from the state bar authorities? Any letters from them saying, like, we've reviewed, you know, claims relating to, you know, alleged, misconduct or ineffective assistance, which, you know, have we found, you know, not not or we found meritless or not rising to the level. I mean, is there any input that you can get from state bar authorities?

Rekha Sharma-Crawford: 100%. And that is an effort that is still continuing. I will tell you that there are some jurisdictions who will say, we treat every bar complaint require we have bar complaint filing exactly the same. It does not matter. There are some jurisdictions, especially in the the non strict compliance areas, where we've heard from disciplinary counsels, and we say, you know what? When we see Lazai, we just kind of put it aside. Okay. Well, then now really why are we doing? Right? If even the FARC themselves says, why are all this is it's one of those Lazada things. We won't really pay much attention to it. Well, then, again, it is more formover substance, and and that's what it's proving. So, yeah, I mean, it's it's literally across the board. Those are the conversations that are happening to say, you know, especially in those jurisdictions where, the disciplinary advisors is I mean, I don't know if they'll come forward and say, we'll just kind of throw it aside. I don't know that they'll feel comfortable to say that, but where those conversations are are happening, there are people who say, look, we don't really pay much attention to it. The minute we see Matter of Ozawa, we set it aside because now we know that you all have to do that.

James Pittman: What are some actions that listeners can take? So someone who's listening to this and they wanna support your movement, what can they

Rekha Sharma-Crawford: do? They can do a couple of things. Number 1 and this is in particular with the petition, of course. We'd ask people to sign the petition. It is it's out on my LinkedIn. It's I mean, I can forward it to to you all so that you could put it in the the notes. But, also, I think this is a this is one of those times where if someone is not an immigration attorney, we need to hear from them. Right? Because I think that attorneys from every discipline should be stepping forward to say, this is really not normal. And I think the more people hear that and the more other people from other disciplines come forward to say that, I think we really then start to show that this is an anomaly, this is not normal, and it should not be treated as it is normal. And so I think the work is is, you know, work like you're doing, where you're helping to amplify the movement, you're helping to kind of get the message out. I think people should, if they have a vested, or, you know, an interest in this, then I think that is the best thing they can do is to kind of help amplify the efforts, because, you know, there's the old adage, right, that says the squeaky wheel gets the oil. And the question is, is is how much squeaking can we make it before the administration says, yeah. This is really a problem. Probably have

James Pittman: to squeak pretty loudly.

Rekha Sharma-Crawford: Well, and that's gonna require all of us then. Right?

James Pittman: It is. And we will and and and whatever links you send us so that people can access any materials that you've developed or signed the petition, get involved. Send us those links, and we'll post them along with the video. And, very good, we've got a couple minutes left. So let me just ask you a couple questions so people can get a better idea about you and your profile.

James Pittman: I mean, you mentioned that you came from criminal or you came from, actually, for being an assistant DA. You came from criminal law. How how'd you then segue into immigration law? What keeps you passionate about this field?

Rekha Sharma-Crawford: You know, it's a funny you know, I have always said that the law picks you. You don't pick the law.

James Pittman: That's right.

Rekha Sharma-Crawford: And it's kind of how this happened is is I thought I was gonna be a career prosecutor.

James Pittman: That's it.

Rekha Sharma-Crawford: And, when you are an immigrant yourself, what you find is everybody asks you immigration questions. And so I ended up kind of saying, I don't wanna commit malpractice, so let me get some some mentorship, and I'm mentored with somebody who who said, look, you know, here's what's going on. And in so doing, what I realized is they said, oh, you have a lot of trial experience. Do you wanna handle our removal cases? And I said, absolutely. And then I spent my early years, I kid you not, getting thrown out of, the INS office because I couldn't understand what they were doing. Like, they would say things like, we're going to go talk to your client, and then we'll be right with you. I didn't know what that meant. I I was like, I don't understand. I am his the lawyer. You're telling me you're gonna go talk well, yes, but this is civil. And I literally spent the first two years of my practice just absolutely beside myself because I couldn't understand what they were doing. And I thought, this is crazy. This is not how this works. And then, of course, I started trying cases in removal proceedings, and they told me, well, there's no rules of evidence. And I said, what do you mean? Then they said, there's no rules of procedure. I said, what do you mean? And then they said, by the way, you have the burden of proof. And I said, what do you mean? I'm not the government. And I literally spent that much, like, the early years of my immigration practice, just being apoplectic and coming home and saying, do people know this is how this functions? And I think it ignited something in me to go, this doesn't make any sense to me, and so I'm going to go try and do what I can because I feel like immigration court is trying a case with one hand tied behind your back and one leg tied to a tree. Like, this is just kind of how you are. And, you know, I started really kind of bringing best practices to immigration court and trying to change the culture of immigration court to say, you're a judge. These are real rules. This is real life. Like, you're this is a huge impact on this family. And, I think I probably drove back then to INS counsel crazy because I was I'd file motions and do you know, I was treating it like real court. And what that did is I think it moved the needle in a way to say, okay. We can use real tools that lawyers have to push the boundaries of immigration court, to force people to play by the movement. And so this is kind of what ignited it. It's kind of kept me going all these years, but that's what I'm passionate about and what I keep coming back to is is that, you know, these are real life decisions, and that have profound him, and I don't feel like we should just simply normalize how how normal or unlacking in or how how lacking in due process immigration court can sometimes come across. And I think as a zealous advocate, our job is to keep reminding both the government and the judge that, due process is a constitutional right, and we have, regardless of what anything else comes about, that, justice prevails when justice system

James Pittman: Yeah. There's so many reforms that are needed. I mean, a couple of years ago, I interviewed, former immigration judge, retired immigration judge, Charles Honeyman, and we were talking about, you know, whether immigration court should be an article 1 independent court. And, you know, with the consequences of it of it being an administrative court system within the DOJ, you know, it's it's there's there's so many structural issues, with it, and the consequences are so, you know, huge for the participants, for the respondents. It's certainly something I mean, we'll definitely have you back, and we could talk, you know, more in another episode about some of these structural issues. I'm sure you'll have plenty to say about that. Also love to talk to you as we get closer to the election. I'm looking forward to, let's say, the Democratic Party coming out with its immigration platform and and hearing in in specifics, you know, what they would like to do with the immigration system. And then, hopefully, we can have you come back and give some more commentary on on the election and and on the platform. But, I definitely hope you'll join us for that as we get closer to November.

Rekha Sharma-Crawford: Of course. I appreciate the time. I appreciate, you reaching out so that, and helping us amplify this issue. I think it's very important. I think it is about strengthening the practice, and and really giving new attorneys an opportunity to do something that is more normal, across disciplines than what has been taught generation after generation.

James Pittman: Yeah. I definitely agree with you on that point. Well, it's been great. And this, is Rekha Sharma Crawford, and she is the treasurer of AILA and a partner and cofounder at Sharma-Crawford Attorneys at Law. Rekha, thanks so much for your time, and, we I enjoyed it very much.

Rekha Sharma-Crawford: Thank you so much. I appreciate it.

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