The Fog of War (In Immigration Court)

by Gary C. Frost

Several years ago, a documentary entitled “The Fog of War” was released about the life of Robert McNamara who had served as the Secretary of Defense under Presidents Kennedy and Johnson. The film tells his story and how he believes the United States should conduct itself in future wars through several lessons he came to realize as the result of the country’s involvement in conflicts such as Cuba and the Vietnam War. While no one equates the terrible consequences of actual armed conflict with the conflict in an immigration court, to say that there are no similarities is a bit simplistic.

Immigration court, no less than any other, presents an adversarial setting in which reaching the “right” or “just” outcome can be exceedingly fleeting. So whether it is your client being ordered deported when you are convinced the IJ got it wrong, or from the government’s perspective your client being granted relief in a situation in which he “may be undesirable, but not deportable,” to an IJ struggling with whether the Respondent’s horrible asylum story is credible or not, there is much opportunity for conflict and questioning as to whether justice is accomplished. But as Justice Holmes is alleged to have famously said, “Justice? We don’t do justice here. We just follow the rules of the game.”

Sure, actual armed conflict may have theoretical rules in which combatants may or may not aspire to follow, but litigators who fail to follow both the written and unwritten rules of the immigration court do so at their (and their client’s) peril. This article is about some of those unwritten rules of the court as adapted by the lessons proffered in the “The Fog of War.” On a very basic level, these lessons can easily been seen as a Do’s and Don’ts, but hopefully you may see them in as a “bigger picture” guide to how you approach cases in the immigration setting.

Empathize with your enemy

From the outset, let me be clear: this lesson does not imply that the government attorney or the immigration judge is or should be seen as “the enemy.” If you practice in immigration court long enough, you will create relationships with some of the government attorneys and judges that go beyond (even if it is just a little) mere working relationships. In some cases the parties may consider the other actual friends. In others, it may not reach “friend” level, but may be the respect that one colleague affords another from trying cases against each. Regardless, the government lawyer is not on your side and the IJ is ostensibly on no one’s side. In immigration

* Gary Frost practices immigration law exclusively with the law firm of Chavez & Valko, LLP, with a concentration on deportation, family-based and naturalization cases. He has been a presenter at the 2008 AILA Spring Conference and the 2009 AILA Fall Conference. He is the current Dallas EOIR liaison and served as the liaison from 2008-2009 as well. He is a graduate of the University of North Texas and the University of Tulsa Law School. He has been published in the Tulsa Law Review and among other clients, has represented a Grammy-nominated singer and NHRA race car driver.

court, “enemy” is probably too strong of a word to describe the trial lawyers and IJ, but let’s face it, by definition, they certainly are not your allies. No doubt all the parties in the court (practitioners, government attorneys and IJ) have come across someone that they have no respect for and could view as the enemy in some sense. So, at the risk of it sounding too harsh, I’ll continue to use the word “enemy” to keep in the spirit of this lesson.

Understanding that the government lawyers and IJ are necessarily the enemy should not prevent you from trying to understand the role they play, the client they represent, the goals they hope to accomplish or the individual idiosyncrasies of each. You’ve probably heard this most often as “knowing your enemy.” Having such a knowledge will help you prepare your cases and not only give your client the best chance of obtaining relief, but will also increase your reputation in the eyes of the court – a beneficial aspect you should never underestimate.

From my experience, immigration judges take their role extremely serious and strive to reach the right decision to the extent they can. They are human though and are susceptible to the same feelings of bias, frustration, anger, and sympathy. It is imperative that you learn these aspects about the judges with whom you practice. This will come through the everyday hard knock lessons of being in front of that judge but you should not hesitate to contact other practioners for their experience either.

With one judge you may learn never to file an application for relief that isn’t complete, because if you appear at the merits and seek to make wholesale changes to the document, you may find the application pretermitted or just as bad, the judge may require you to proceed with what you have on the application (incomplete answers and all). With one judge you may learn to submit a written summary from a doctor describing the medical conditions of a qualifying relative regardless of whether (and maybe especially if) you submit voluminous medical records. With another judge you may learn that it is better to have the doctor available to testify, even if that means the doctor does so by telephone. Knowing that one judge takes the bench five minutes earlier than the time set for the Master Hearing, while another purposely takes the bench as much as thirty minutes late to allow time for practitioners and trial attorneys to confer, is valuable information about your enemy.

This is the same for government lawyers. If you know that the Office of the Chief Counsel (OCC) has a specific procedure on how to broach the idea of them joining in a Motion to Reopen or whether they should use their prosecutorial discretion, it does absolutely no good, at least in the short term, to attempt to accomplish your goal by going outside those procedures. You don’t have to like their procedure, but understanding that the OCC at least believes the procedure is necessary or efficient in their eyes, will help you choose how you approach the issue. Never forget that the OCC has a client that they represent as well and that their client starts the process by viewing your client as someone who has no business being in this country. For you to break through this initial wall, you’ve got to know who your enemy is. Is the attorney that will be sitting at the other table a “crusader?” Is the attorney just keeping a seat warm while they

collect a paycheck? Is the attorney a true professional doing the best they can and not taking things personally? If you know your enemy has a financial or tax background, you better double and triple check the tax returns you’re submitting to show a history of physical presence or good moral character. In almost all cases, you know who your judge is long in advance of the merits, but you may not know who you’ll be facing from the OCC. Take the time to either call their office to discuss the case or review the duty schedule that is often published by the OCC’s office. The duty schedule for the Dallas OCC can be found at www.keyvisa.com.

Rationality will not always save your client

An attorney I worked for and have a great deal of admiration for, once told me that “rational thought and the immigration system should not be in the same sentence.” We have all experienced episodes in dealing with CIS, the OCC or even IJ’s in which the illogic of their actions is so stunning, you almost expect to see Steve Kroft from 60 Minutes walking in the door to do a story. We are taught on the first day of law school the role of logic and reason in the law. In Latin the phrase is, Lex semper intendit quod convenitrationi (The law always intends what is agreeable to reason). If it were only so simple!

This lesson teaches that you cannot rely solely on the logic of your argument to win your point. By the same token, where you see an obvious lack of rationality in the law, you must fiercely challenge the presumption or status quo. Remaining unemotional and detached may work for Spock in Star Trek, but there may be times that you need to bang your fist on the table and express your outrage. In some cases, what do you have to lose? If you client is in removal because of a INA §204(c) finding and you are seeking a continuance to permit the adjudication of pending I-130 from a new spouse, rest assured, everyone from the IJ to the government lawyer will view the fraud finding as death sentence.

Yet, depending on the circumstances, the “rational” thought (or in this case conventional wisdom) that §204(c) findings are death sentences can absolutely be wrong. So when you stand up and argue that the regulations require an affirmative showing by DHS that there is substantial and probative evidence that the marriage was entered into to evade the immigration laws and that the evidence must be in the alien’s file and that the evidence must be given to the new petitioner for an opportunity to rebut the finding before DHS can deny the new I-130

, you will see eye brows raised throughout the court – and it won’t be because you took the rational path that so many have bought into.

There’s something beyond one’s self

In the context of the battle that occurs in immigration court, this is one of those lessons that is so obvious it is almost absurd to mention. It is easy to see your client as the “something” beyond yourself. After all, if it weren’t for the bad luck or poor choices of your client, you

8 CFR §204.2(a)(1)(ii); Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990)

wouldn’t have the opportunity to save your client. The feeling of accomplishment or success in having the IJ grant relief is often eclipsed by the worship your client has for you. Yes, there are some clients that see themselves as victims of the system and that the granting of relief was owed to them, which manifests itself in ingratitude for the work you have done, but such reactions come with the territory.

If you have never practiced other areas of the law, you may not realize how supremely unique immigration law is. Outside of criminal law, virtually every conflict in any area of the law that you can envision always boils down to one thing: Money. The other party broke a contract? Money solves the problem. Someone injure you in a car wreck? Money solves the problem. Your boss sexually harassed you? Money solves the problem. A corporation cooks its books to prop up a stock price? Money solves the problem. Your lawyer commits malpractice? Money solves the problem.

Not so with immigration law. If you commit malpractice by incompetently representing someone in court or prepare an application that prevents their adjustment of status or prevents them from getting a visa to come to this country, there is no amount of money that you can pay to the client that is going to make it “ok” that they will be deported, not get their green card or not come to this country.

Immigration law is one of those rare areas of the law that you see an immediate impact on an individual’s life that money cannot make better. Heck, criminal defendants almost certainly will be released from jail at some point and will be permitted to continue their lives with their families. Even wrongfully convicted criminal defendants can be compensated for their unlawful detention. Your removal client will have no such luxury. In a system in which a voluntary departure order does not overcome an unlawful presence bar, try explaining to your client that he’s free to seek a visa in ten years or a hardship waiver in the meantime, knowing full well that the chances of your client getting a visa in ten years is slim to none or that they will have to remain separated from their loved ones in a country where they have no home.

As an immigration lawyer, you may take pride in a job well done in having an IJ grant relief in court, but you must constantly remind yourself that the fog of war that surrounds the conflict in immigration court should not cloud the reason why you are there. A real human being has decided that being in this country with whatever hardships that may entail is monumentally better than being in their own country. This sort of thinking is fundamentally alien to Americans because most of us cannot imagine a scenario in which we would view giving up everything we have, know and love to go and live somewhere else. Such a thought is astonishingly powerful and if the law permits a path for your client to accomplish their quest, it is your job to help them accomplish it. It is not just about winning a court battle so you can hang another “skin” on the wall.

4. Maximize efficiency

One beneficial aspect of practicing in immigration court is how formulistic cases can be. In many cases, you know within a very short period of time (often by the end of your initial consultation) whether your client is eligible for relief and how good their case will be. Since there are so few forms of relief, there are relatively few requirements to keep up with. Almost immediately, you should be envisioning what evidence you will need to meet each requirement and how you will overcome the pitfalls in the case – both legal and factual. Creating a trial notebook can help keep your arguments and evidence organized. Thinking about where the case needs to go and how you will get there from the very beginning will maximize your limited resources.

With regard to a trial notebook, one method is to start with a legal outline of the form of relief. Over time, you will create an outline for each form of relief and will simply update them as new cases or changes in the law are made. Since the goal is for the judge to grant relief, an outline of the requirements for that relief is an ideal roadmap for how to work the case. By checking off each requirement and writing a few notes on the outline of the facts and the evidence you intend to introduce, you will quickly see the strengths and weaknesses of the case.

Another section of the trial notebook should include your notes and research regarding legal issues that you anticipate will be raised against your client’s eligibility or deserving of relief. The next section includes copies of the documents that you intend to introduce in support of the relief application. This section can be subdivided by each requirement of relief. Since you’re required to provide a table of contents with the evidentiary submission, organizing your evidence by the general requirement of the relief not only provides a visually benefit for the IJ, but will keep you on track on preparing your client’s testimony. The final section of notebook should be reserved for your notes or script of anticipated testimony. Of course this section should be subdivided as well with sections for each witness.

Each of us wants to be as busy as we want to be. A trial notebook will help keep the interconnected elements of your removal cases organized and in turn you will see the case develop in terms of the big picture instead of jumping back and forth between (or even repeating) the same tasks.

Get the data

When it comes to removal cases, the government lawyers hold virtually all the cards in the deck. There is a reason that they can dispose of so many cases, almost without lifting a finger, because the vast majority of people make the government’s case by admitting to the factual allegations in the Notice to Appear and concede to removability as charged. At that point the only thing left is arguing about the eligibility for relief and whether your client warrants positive discretion. In this aspect, you may possess the one trump card in the deck: knowledge of the facts.

It is imperative that you be, head and shoulders above everyone else in the court room, an expert on the facts of the case. By the same token, you should at least be on par with the IJ and the government regarding the law. Do your homework – often you will be surprised that you are aware of an obscure provision, case or memo that has bearing on your case.

Obviously to be the expert on the facts, you must spend a great deal of effort to obtain relevant information and then spend an equal amount of time scrutinizing the documents. You don’t ever want to be the last to know that the tax return your client provided to you shows several different social security or tax identification numbers or that your client lists a depreciation expense on a company van that he does not own. By the same token, it is crucial that you know what your client will testify to before filing your relief application with the court. For example, if the first time you learn that the 42B says your client is not the beneficiary of immigrant visa petition when he just testified that his brother filed for him three years ago, try not to let that tightness in your chest be obvious to everyone in the court room. Nothing will get your client a faster negative credibility finding than a conflict between the facts alleged in the relief application and their testimony.

Digging, and then digging some more into your client’s story minimizes surprises in court. Forcing your client to answer the tough questions accomplishes two important goals: first, it permits you to frame the story (and your client would certainly prefer to answer hard questions from you than the questions from the IJ or trial attorney); second, you potentially cut off entire lines of questioning from the IJ or trial attorney. If you have spent enough of time going through all the facts – good and bad – what more is there to ask of your client? At worst, the trial attorney or IJ pulls out a few insignificant facts from your client. At best, they spend their time rehashing the same facts. If this happens, don’t waste time with unnecessary objections to their questions – let them reemphasize the facts you wanted to bring out anyway!

Belief and seeing are often both wrong

Many of us are “show me” people. In other words, don’t tell me how things are, show me how things are. There are countless instances in immigration court in which the belief in how a law or procedure is interpreted forecloses a contrary position. For instance, the REAL ID Act has almost become sacrosanct among IJ’s and its requirements are routinely tossed into opinions to justify negative discretionary decisions (especially those involving credibility findings). Make no mistake, the reasons for requiring a respondent to back up their verbal testimony may make sense at first glance, but its import is due to the difficulty that comes from determining how credible or incredible a witness’ testimony may be. Don’t ever forget that testimony is evidence and just because an IJ has difficulty distinguishing between a truly credible horrific asylum case and one that sounds equally horrific but may not be credible shouldn’t mean they get a free pass to make a credibility finding merely because the respondent doesn’t have a video of the torture they suffered. The REAL ID Act is not some holy grail and you should not permit such a belief to proliferate.

Another example involves cases in which your client appears to have admitted to committing a crime involving moral turpitude (CIMT) or some drug offense, both of which may be a ground of inadmissibility under INA §212(a)(2)(A)(i). Your client may have been put into removal after appearing at an adjustment of status application interview in which she “admitted” to possessing crack cocaine. From the trial attorney’s perspective, the case appears to be open and closed because she even introduces the written transcript that your client signed at the interview admitting to possessing the drugs. As a practioner, you can clearly see that your client admitted to possession and you can see that §212 only requires your client to admit to committing acts of the drug offense to be inadmissible. You may even believe that your client did possess the drugs. If you are a “show me” person, your first reaction may be to not accept the case in the first place. But this is an obvious example of believing and seeing are wrong.

Regardless of what your client may or may not have done, if DHS is going to hold your client inadmissible, then it should at least have to play by the rules. A review of the “rules” will show you that all admissions aren’t equal and that only after the Government jumps through several hoops can they use a supposed admission as a basis for inadmissibility. Surprisingly, even in cases where an alien flat out says that he committed a CIMT or a certain drug offense is not an admission that can serve as a ground of inadmissibility. Why? Because the law requires the alien to admit to the specific elements of the crime (the trees) and does not accept the simple admission to the crime (the forest). See, e.g., Matter of C, 1 I&N Dec. 14 (BIA AG 1940). In this case, for the admission to be held against your client, the government would have to, among other things, provide your client the legal definition of “possession of a controlled substance.” Se eMatter of K, 7 I&N Dec. 594 (BIA 1957).

Seeing and believing may be a good starting point in most cases, but . . .

. . . Be prepared to re-examine your reasoning

As discussed above, because removal cases can be formulistic, it is easy to follow a well- trodden path. You may come to have a great deal of understanding and experience in certain types of cases and thus have a great feel for what will and won’t work. The trick is not to fall into the trap of assuming that for a given case all you have to do is A, B and C to win or that because X, Y & Z facts exist that the case is a loser before you walk into the first master hearing. Conventional wisdom may be right much of the time, but when accepting a removal case there should always be at least a moment in which you re-examine your approach.

Without question, one of the more common aspects of removal cases is that your client invariably has a potentially case killing discretionary fact in their background – often it is the very reason they are in removal in the first place. For instance your client may have served 7 years in jail for committing bank fraud to the tune of $200,000. It will take no time for you to figure out that your client has committed an aggravated felony and that his alternatives for relief just went from “not many” to “almost none.” Even withholding of removal might initially

appear out of the question since the crime appears to be a “particularly serious crime.” Challenging that conventional wisdom could lead you to argue that purely financial crimes are not the types of particularly serious crimes contemplated by the Act – and you’d probably win the argument.

One common approach in addressing criminal convictions is to confront this fact on direct examination. In such a case, you have probably pounded into the head of your client that they must not minimize or excuse their conduct and that they must accept full responsibility without reservation so that they can demonstrate proper rehabilitation and remorse. Of course up to this point, your client has repeatedly attempted to explain the facts to you so that you will understand that they really didn’t do it! If you practice long enough, you will come across a case in which the facts on their face appear to particularly egregious and yet, even though they plead guilty to the offense, there is something in their tale that seems to indicate that they really didn’t commit the crime. Now what? Accepting full responsibility on the stand may lead to the judge granting relief (for instance, if the crime occurred a very long time ago and it is the client’s only offense). However, if you are convinced that your client truly did not commit the crime, despite their plea, and you have your client deny responsibility, this will, generally speaking, lead to things going bad for you client very quickly.

Challenging the reason for confronting the existence of the conviction from the beginning may be the only card you have to play if the crime is extremely horrible. If your client plead guilty to recently raping a family member in which a child was born of the crime, suffice to say a removal order is already in the works. But what if the victim has recanted the accusation under oath and DNA test results conclusively prove your client is not the father? You may be faced with one of those rare cases in which you are forced to re-examine your approach and argue that your client did not commit the crime and that he is a victim of the most insidious lie – one that leads to a criminal conviction. Under the circumstances, you may have few alternatives. Do you continue with an apparent travesty of justice or face the wrath of denying responsibility? The choice for your client will be difficult.

In order to do good, you may have to engage in evil

Let me be clear once again: this lesson does not require or even remotely imply that sometimes you have to bend the rules or do something unethical to be successful. There is no client on this planet, no matter how redeeming their value to society may be, that is worth your law license. What this lesson tells you is that sometime you will represent someone whom you despise or despise what they did in their life. You may not even be entirely convinced that such a person deserves to remain in this country. Many may view your representation of such a person as an endorsement of the alien’s conduct – seeing your actions as engaging in evil furtherance of the alien’s life. However, as a practioner you may find that in these cases you are not so much representing the client as much as you are serving the integrity of the system as an officer of the court.

As I’ve stated before, for the most part, the Government has most of the cards in the deck in removal cases and if your client has enough bad facts in their background, there will be little that you can do to prevent their deportation. Even in these cases, holding the Government to the few burdens they may have is essential to maintaining a fair and unbiased proceeding. Unless a client is absolutely ineligible for relief, every IJ will give that alien their day in court. If you are going to appear for seemingly loser cases, you owe it to the removal system as much as your client to provide zealous representation. While I have yet to come across an example of illegal or unethical conduct to ensure a removal order is made, there certainly have been examples where one or more of the participants “mailed in” their appearance in court. If you are not advocating for your client to the extent you can, then you are helping the system slide to a position where the requirement that aliens be given a full and fair hearing becomes a bad joke. You would be allowing the government to simply go through the motions of a hearing.

If others see your efforts as an evil attempt to keep real bad people in the country, let them. You will know that what you are really doing is keeping the most powerful litigant in the courtroom on their toes and playing by the rules. If the government knows you will do that in the real tough cases, think about how they will see you in the few cases where you actually have a couple of aces in your hand.

You can’t change human nature

If you haven’t already, you should give thanks for the fact that your clients make bad choices. Without their poor decision making, you may rarely get to see the inside of a courtroom. This means that you cannot burn too many calories fuming over the ridiculous decisions that your clients make. If you are one that gets upset at their conduct and want to continue taking removal cases, then you should be prepared to spend the rest of your life upset. If you are one that feels the need to constantly lecture your clients about their wayward lifestyle, then at least accept the fact that you are almost certainly screaming into the wind.

The anger or patronizing feeling you may have toward your client does not help the preparation of the case. It will not clarify your thoughts or your strategy. In fact, the opposite may result. You may create an inherent barrier to the proper representation of your client because you may not see this client as worthy of your efforts as compared to another client with better facts. Your job is to remain objective and nonjudgmental and if you find these tasks difficult, maybe removal work isn’t for you. The clients have their life and you have yours. Regardless of what the outcome is, you get to walk out of court and go back to your family. The important thing for you is to know that you did the best you could. As for the client, they have made their choices and they have to live with the consequences of their conduct. Despite your desire, you will not change the fact that clients do incredible dumb or bad things. I say thank you.