Apparently, it is now fashionable to blame immigration lawyers for the ills of the U.S. immigration system. It started in October when Attorney General Jeff Sessions, railed against the “dirty immigration lawyers,” baselessly charging that they are exploiting loopholes (also known as “the law”) to game our so-called “generous” asylum system. More recently, law professor Benjamin Edwards opined along similar lines in the Wall Street Journal. Promoting an upcoming law review article in which he purportedly argues for mandatory disclosure of immigration lawyers’ wins and losses, Professor Edwards essentially argues that immigration lawyers who lose a large percentage of cases are either incompetent or “predatory” “scoundrels.”
Talk about fake news. Professor Edwards’ opinion piece is so full of false assumptions, it’s hard to know where to begin.
Assumption #1: Bad outcomes = bad lawyering. Professor Edwards’ argument is predicated on the assumption that a lawyer who loses must be incompetent. But as any Atlanta immigration attorney can tell you, even the second coming of Thurgood Marshall couldn’t be guaranteed a win on an asylum claim in that jurisdiction. It’s not about bad lawyering; it’s about a jaded, overworked and understaffed bureaucracy that too often denies due process. According to the Department of Justice, the asylum grant rate is 48% nationally; in Atlanta, it’s only 2%. Is Professor Edwards suggesting that Atlanta’s immigration lawyers are all bottom feeders filing frivolous claims? Come on. Where an immigrant happens to be located geographically can determine his fate – no matter how meritorious his claim, and no matter how competent his attorney. But if the professor had his way, attorneys who practice in locations where the judicial deck is stacked against them, in locations where they are arguably needed the most, would be driven out of business.
Assumption #2: Bad lawyers cause higher detention rates and clogged court dockets. With zero evidence, Professor Edwards states that the reason the immigration courts are backlogged and detention has increased is because unscrupulous lawyers are filing meritless asylum claims, an assertion reminiscent of AG Sessions’ equally unsupported remarks last month. It is absurd to suggest that lawyers helping clients access justice somehow impedes the system. The system is not backlogged because lawyers help immigrants file claims, but because our government chooses to invest heavily in immigration enforcement and the detention of mothers and children without any comparable spending to improve our dysfunctional and under resourced immigration court system.
Assumption #3: “Good” immigration lawyers are leaving the profession because of “corner-cutting” competitors. Professor Edwards notes that only 37% of people in removal proceedings have counsel and implies that this is because unscrupulous lawyers drive down legal fees and cause the “honest” lawyers to quit the profession, leaving a deficit. Again, no support for this baseless theory is offered. While it is certainly true that there is not enough representation for immigrants in removal proceedings, this is often due to a lack of financial resources, language barriers, or because immigrants are often detained in remote locations where there are no attorneys. And while some lawyers leave the profession when they can no longer stand to witness the affronts to justice on daily display in our immigration courts, many more are stepping up and digging in for the long hard fight against this administration’s mass deportation machine.
Assumption #4: In many cases, immigrants are better off without an attorney. Added to all of the above, Professor Edwards smears all immigration lawyers based on the incompetence of a few, stating that “immigrants would be better off without an attorney than entrusting their fate to the bottom 10% of immigration lawyers.” Yet, he neglected to mention that immigrants represented by counsel are more likely to be released from detention; more likely to appear in court and more likely to win their removal cases.
Is the immigration bar perfect? No. Like any other profession, the immigration bar is not immune to practitioners whose performance falls below acceptable standards. This is a problem in medicine, the judiciary, accounting, finance, and many other fields. But instead of falling prey to the false assumptions espoused by Professor Edwards, we must confront this challenge head on. We must identify ways to encourage and lift up the best and brightest of our profession while weeding out those who do a disservice to our cause and shun the incredibly important responsibility we have to protect those we represent.
Frankly, the last thing we need right now is baseless attacks and mudslinging. We need solutions. We all need to work toward a system that follows the basic rules that our Constitution requires. A system that provides due process and equality before the law. A system that respects the role of lawyers and judges in reaching the correct decision through zealous representation and thoughtful deliberations based on all the facts. I don’t think that is an impossible dream. Let’s work together to make it a reality.
A reply from the author, Jennifer Minear:
Thanks to you all for such thoughtful engagement on this important issue. As I mentioned in my post, of course there are some immigration practitioners who are incompetent and/or unscrupulous. And while I tend to disagree that it is a problem more prevalent in the immigration bar than in other areas of law, I do concur that malfeasance and fraud are harmful to the image of the immigration bar as a whole and, more importantly, to the immigrants who receive inadequate representation. However, the “solution” Professor Edwards proposed – mandatory reporting of wins and losses – does nothing to address that problem for the reasons I mentioned in my article, and that some of you reiterated in your comments. So, it seems we are in agreement that there is a problem and that Professor Edwards’ idea doesn’t solve it – what now? As you may be aware, AILA provides extensive legal training and support for its members to enable them to be the best and most zealous advocates possible for their clients. We also promote and support efforts to end notario fraud (http://www.aila.org/practice/consumer-protection/notario-fraud-resources/want-to-end-notario-fraud) and to protect consumers of immigration services (http://www.aila.org/practice/consumer-protection/notario-fraud-resources/why-consumer-protection-pro-bono-service-matter), and to examine the ways in which our profession is changing and how to adapt while still maintaining the highest standards of ethical practice and legal excellence (http://www.aila.org/practice/consumer-protection/notario-fraud-resources/the-future-of-immigration-law-practice). That doesn’t mean we can’t be doing more. I welcome constructive dialogue and ideas on this topic and appreciate you taking the time to engage.
Thank you for this article. I do think that Edwards’ article was predicated on some assumptions that were rightfully challenged. Although bad lawyering will assuredly result in bad outcomes, excellent lawyering can result in bad outcomes as well. Sometimes the law just does not provide the relief we (our clients) need. Although geographic location is an irrefutable factor in asylum cases, I don’t think it’s a bad thing to acknowledge that some of our clients come to us with weak (not frivolous) cases that have little signs of hope. I have read many an opinion where the alien loses, but the appellate judge commends the able effort by Counsel. I also agree that lawyers leave the profession for any number of reasons, and I have also not seen any study or evidence that purports to show “bad” lawyers are driving down legal fees. Finally, while bad lawyering can devastate a case, the statistics are clear on the success rate for aliens handling their case pro se.
However, I do disagree that bad lawyers cannot contribute to clogged court dockets. The evidence for bad lawyers clogging the courts can be obtained from IJ Noel Brennan’s 2009 article “A View from the Immigration Bench,” and Robert A. Katzmann’s article, “The Legal Profession and the Unmet Needs of the Immigrant Poor” (2008). Still, the court backlog does not exist solely because of bad immigration lawyers – not even close.
I believe the root of these flawed assumptions can be determined by looking at Edwards’ background – he never practiced immigration law. From the viewpoint of Edwards or the AG it may seem like immigration lawyers are a detriment to a seamless immigration (removal) system. But there are things we learn by actually practicing in the field that allow us to identify flaws in the casual observer’s assumptions. The difference between a weak asylum claim and a frivolous one is a good example, with only the latter being “bad” lawyering. What pains me the most is that both the AG and Edwards are lawyers and should understand the duty of ZEALOUS representation.
But one thing the other commenters are correct about is that, even from the inside, it is clear that some unscrupulous individuals have snuck into the profession. Whether its bad ethics or bad lawyering, it does reflect poorly on our area of the profession. Judge Posner noted: “The judge groups…agreed that immigration was the area in which the quality of representation was lowest.” A few years ago I read a study published in the Cardozo Law Review, “Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings” (2011). It almost moved me to tears when it confirmed that what I was seeing at my immigration court was reflective of other jurisdictions as well:
Close to half of the representation in immigration courts was judged to fall below basic standards of adequacy in terms of overall performance (47%), preparation of cases (47%), knowledge of the law (44%), and knowledge of the facts (40%). Between 13-15% of representation in all these categories was characterized as ‘grossly inadequate.’ The only area where representation seemed to be better was in SIJS, VAWA and T/U visas cases, where the report simply assumed that these cases are more likely to be held by nonprofits and pro bono clinics. On a scale of 1 to 10, private immigration practitioners were rated a 5.22 by New York immigration judges. Not only is underrepresentation a serious issue, half those who are represented get inadequate services.
A 5.2 score by the judges? 🙁 This is not AILA’s fault – they regularly try to increase the knowledge and professionalism of its members. But what else can be done? Or, more importantly, what is it about immigration law that is attracting sub-par lawyers? Until we can have an honest discussion about the latter question, the immigration bar will remain the laughing stock of the legal profession.
Thanks to you all for such thoughtful engagement on this important issue. As I mentioned in my post, of course there are some immigration practitioners who are incompetent and/or unscrupulous. And while I tend to disagree that it is a problem more prevalent in the immigration bar than in other areas of law, I do concur that malfeasance and fraud are harmful to the image of the immigration bar as a whole and, more importantly, to the immigrants who receive inadequate representation. However, the “solution” Professor Edwards proposed – mandatory reporting of wins and losses – does nothing to address that problem for the reasons I mentioned in my article, and that some of you reiterated in your comments. So, it seems we are in agreement that there is a problem and that Professor Edwards’ idea doesn’t solve it – what now? As you may be aware, AILA provides extensive legal training and support for its members to enable them to be the best and most zealous advocates possible for their clients. We also promote and support efforts to end notario fraud (http://www.aila.org/practice/consumer-protection/notario-fraud-resources/want-to-end-notario-fraud) and to protect consumers of immigration services (http://www.aila.org/practice/consumer-protection/notario-fraud-resources/why-consumer-protection-pro-bono-service-matter), and to examine the ways in which our profession is changing and how to adapt while still maintaining the highest standards of ethical practice and legal excellence (http://www.aila.org/practice/consumer-protection/notario-fraud-resources/the-future-of-immigration-law-practice). That doesn’t mean we can’t be doing more. I welcome constructive dialogue and ideas on this topic and appreciate you taking the time to engage.
There was a reply from Ms. Woods but it isn’t appearing on this page. In any case, it asks: what now? As I said before, bad lawyers are not the fault of AILA, which provides plenty of opportunities to improve skills and ethics. AILA was not set up to be the immigration lawyer police. Lawyers are supposed to police their own: ABA Model Rule 8.3.
Generally, we don’t police our own. I don’t even know if AILA has a place to report malfeasance. I didn’t report another lawyer when I felt I should have because I was young and was scared I’d never be hired by another firm. Others may give the lawyer the benefit of the doubt, because we all make mistakes from time to time and don’t want to be disbarred for it. Maybe others just don’t care – for all of us practicing employment-based immigration there is practically no oversight (certainly no judge from the EOIR is going to reprimand a lawyer for a clearly botched H-1B filing) and not a lot of opportunity to watch other attorneys actually practice before an arbitrator.
My suggestion, and this may not work, is for AILA to create a place where other attorneys can submit an anonymous complaint about a bad lawyer. The complaint should specific in the shortcomings. If the same lawyer collects a certain number of complaints, maybe 5 or 7, then AILA needs to contact that lawyer, and seriously consider filing a bar complaint or taking other action. They need to investigate what in the world is going on to cause a lawyer to have five separate complaints and drag down the professionalism of our bar. That may preserve confidentiality, allow for a reasonable amount of natural mistakes, and would encourage AILA, as a group specifically for immigration LAWYERS, to police their own membership.
Here’s the unpleasant part: We all recognize that immigration law is complex and difficult. But it has been my experience, when observing other lawyers in court or receiving case files for employment-based cases, that if they are foreign-RAISED (meaning they reached maturity in a non-western country and entered a profession there before coming to the U.S. for an LLM), they TEND to perform worse on all fronts: knowledge of the law, knowledge of their case, and most especially basic ethical practices (including trust fund handling). Of course this is not always the case, but I do see it a lot. I cannot explain the reason for this, and my vantage point may be far too limited to make such an accusation. But if other people are reading this and silently thinking the same thing, then this may merit discussion. We are not in the business of excluding anyone – so what can be done to improve the lawyering skills of those who are used to a system where ethics are not put on the same pedastol as in the U.S.? Can AILA require/encourage additional ethics training for those who only hold LLMs but not a JD? Better yet, why would anyone be encouraged to change or adjust their sense of ethics to the U.S. bar if immigration lawyers and AILA don’t police their own?
Make no mistake, U.S. born and bred immigration attorneys can be just as terrible. I’m making an observation as to what I see as an unfortunate prevalence. But in any case, its not AILA’s fault that bad immigration attorneys exist. But since AILA has halfway admitted the problem, they do have a responsibility to do SOMETHING now. After all, it is the American Immigration LAWYERS Association. I would think AILA would have a vested interest in improving the quality of the immigration bar.
And this is why incompetent deceptive immigration lawyers continue to get away with the rip-offs and malpractice that at least half of my clients over the past ten years had been victimized by before they ended up in our office: because too often AILA and other immigration lawyers will NOT acknowledge how many immigration lawyers are deficient in both ethics and competence and do little more than post generic warnings that do not protect clients. Lawyers have an obligation to report this kind of malfeasance. I for one have tried but for all the reasons Benjamin Edwards — whom I do not know — identified and more, the victimized clients are inhibited or unavailable. It wouldn’t matter if they weren’t, however, because disciplinary authorities hardly ever act against immigration attorneys. Immigration law is so obscure and complex it’s easy to claim that something like a “ten years law” bad joke claim is at worst an honest error.
As I have written at greater length in other forums, I don’t agree with all that Professor Edwards wrote, and his proposal is highly problematic — although let’s just note that most professionals, including law professors, are evaluated on the basis of all kinds of anonymous computerized ratings and rankings that depend on metrics far more subjective and even less informed than a win-loss list. But at least he recognizes the depth and breadth of the problem and the extent of damage to immigrants, and wants to do something about it. None of this, by the way, has anything to do with the Attorney General’s ignorant and calculatedly vicious remarks. I wear my “Dirty Immigration Lawyer” T-shirt as proudly as anyone, but the defensive piling-on against Edwards does nothing to enhance the credibility or reputation of the immigration bar, which could better be accomplished by straightforward acknowledgement of the issue and meaningful, effective action to prioritize the needs of injured clients.
Oh, and by the way, “When Law Professors Attack”?? If I get the subtext of that title — inaccurate for starters, the Edwards piece was neither an attack, nor a statement of “law professors” — it suggests that all law professors live in privileged luxury with no grasp of the pressures and exigencies of the “real world” and therefore have no valid observations to offer. Not hardly, as the several hundred detained clients in removal proceedings I and my office have represented, and the tens of thousands who have benefited from the brilliant and creative litigation for immigrant rights prosecuted by law school clinic professors all over this country, could tell you.