Fighting the government is a time-honored tradition for removal attorneys, and often a motivation for joining this field, right?? None of us daydreamed in law school of triumphantly signing joint motions to terminate without prejudice to pursue adjustment of status.
Nonetheless, successful practice in the past often involved strategic cooperation with the government in the best interests of the client. Joint motions to terminate, reopen, or administratively close were key tools, and agencies were receptive to arguments of judicial efficiency and effective use of resources. In some cases, we could advocate successfully by appealing to the reason or humanity of government agencies.
Now, however, the agencies are overseen by a President who expresses sympathy for white nationalists and makes anti-Mexican and anti-Muslim statements. These stand as stark examples of the beliefs which have led to the seismic shift in agency relations, not to mention the travel ban, RAISE Act, and dramatic rise in detention.
Like many others, immigration attorneys have responded to the challenges of the new administration in a variety of ways, often including yelling or a desire to stay home with covers pulled over our heads. Thankfully, immigration attorneys also have an additional option, which strikes at the root of the problem, and ultimately benefits the client while also providing therapeutic help to us: beating the government in court.
While the President’s policies have harmed many of our clients, we also have very powerful tools to protect them. Despite some attempts against them, the protections built into our immigration laws and the Constitution remain. If we cannot get justice in immigration court, a venue overseen, ironically, by the Department of Justice, we still have federal courts.
In this new environment, however, winning cases involves new strategies. We need to prepare for new tactics used by this administration, which often shift with little or no notice.
Identifying new agency tactics also requires another strength of immigration attorneys – working together. Immigration attorneys have a great tradition of sharing strategies and information, even with nominal “competitors” in their area. The immigration agencies have become much less transparent than before, and sometimes seem to be making things up as they go along. Therefore, we need to rely on each other to identify the case examples that bring to light the policies that agencies will not share.
AILA recognizes this new environment and has built a Fall Conference around this work. “Fearless Lawyering: Mobilizing in the New Era of Removal” addresses the unprecedented changes immigration attorneys are facing, and has the resources to help. Panels include an update on Immigration and Customs Enforcement (ICE) actions, a session on advanced bond topics, presentations from experts on burdens of proof, how to be a zealous and ethical advocate, and a congressional update on what’s happening in DC. There’s more too – motions to reopen, developments in the categorical approach and the changing nature of asylum practice.
While this is a challenging time for immigration attorneys, our jobs are now more important than ever. It is also even more vital than ever to commiserate, share stories, and suggest strategies. This fight is bigger than one client and one attorney. We can’t do this alone, but we can do this together.
Hear more from Jesse about specific sessions included in the Fall Conference program in this video.