PLUS, BONUS POLICY ALERT: Trump administration issues proposed regulations to severely restrict eligibility for asylum and other forms of protection for those fleeing persecution and torture. Immediate court and political challenges are expected.
As of counsel and on behalf of Solow, Isbell & Palladino, LLC (SIP), welcome to the second of an ongoing series of blogs exploring a wide array of issues concerning the nation’s Immigration Courts. Following my first blog’s introduction, history, and description of the current political and structural challenges facing the courts, I now move on to tackle some of the crucial challenges to preparing for the various stages of the hearing process.
Critical to effective representation and prevailing in Immigration Court (or on appeal) is thorough, creative, and persuasive advocacy. For those of you who appeared in front of me during my tenure as an Immigration Judge or have been represented by SIP’s attorneys, you know that effective preparation begins on the first day that a client meets with the attorney and not in court before an exasperated Immigration Judge (even one kind enough to soften the moment with a bit of encouraging humor).
Trust and Truth
So how do the attorney and the foreign national client (and family) forge a bond and develop over time mutual respect and a relationship rooted in trust? This is a critical challenge in light of cross-cultural differences, personal trauma, experiences with other attorneys and with authority figures in the home country as well as myths, rumors, and existential fears; all of this could trigger unwarranted assumptions impacting the thoroughness of due diligence by the attorney and fears of disclosure by the client. The attorney (like a judge) can also be impacted by prior experiences with clients, creating an implicit bias that could taint or misdirect the ongoing fact gathering so essential in preparing for trial.
Although an attorney’s reputation undoubtedly has led the prospective client to meet for that initial consultation and then retain the firm, that is just the first step in a developing relationship. Especially in the field of immigration law, improving and expanding upon one’s country and client-specific cultural awareness is a necessary and ongoing prerequisite to a strong attorney-client relationship. Over time, new facts unique to a particular country or subculture may be revealed as the relationship deepens. This in turn frequently leads to new areas of inquiry and sometimes changes in advice and strategy. Flexibility and patience are critical to these early stages of the relationship.
But despite an attorney’s best efforts, there are still times when clients may be reluctant to be truthful or delay such disclosures, often to their detriment. They may not understand certain concepts while claiming otherwise due to language or literacy barriers. They may be too ashamed to admit confusion or past conduct. Additionally, they may have entrenched fears of authority rooted in trauma and/or feel the need to shade the truth in light of their culture’s norms. Moreover, community-driven myths and rumors might cause them to limit what they reveal to their attorney in light of the alleged experience of those who have been successful despite withholding uncomfortable parts of their personal history. Also, there are those clients who have had prior relationships with unqualified or dishonest attorneys or unauthorized non-attorney “consultants” or “agencies” that have warned them against the disclosure of certain truths or the correcting of prior fabricated or exaggerated statements made to government officials. As their new attorney, your challenge and duty are to persuade your clients that any previously suggested “cure” is always worse than the “disease.”
Of course, the best advice and the only ethically permissible course of action for an attorney is full disclosure and the development of a proactive or corrective strategy. As an attorney-client relationship matures, more often than not, the full truth or even new facts that actually strengthen an application will emerge. One of the keys to success in each case is a careful and thorough study of the client’s history, family, country, particular subculture, and ethnic background. Such a “cultural awareness” will generate clues and lead to lines of inquiry not always readily apparent from an initial intake questionnaire and consultation.
Preparing for Hearings-Factual History, Document Review and Supporting Evidence
In advance of master calendar hearings, the attorney must review not only the factual allegations contained in the Notice to Appear (NTA), but also the specific circumstances that may have triggered the initiation of proceedings. Of course, such due diligence includes any pending or completed criminal proceedings, a full review of a client’s criminal record (including any juvenile dispositions), family court records, driving records, tax records, and essentially any contact with law enforcement in the U.S. or overseas.
Likewise, it is critical to review with each client (filing FOIA applications as necessary) the procedural history of their current case and any cases they or their family members may have had in the past. This includes a review of all documents in all files including those retained by USCIS, CBP, DOS, etc. Such a review may sometimes reveal the existence of multiple “A” files, each of which should be reviewed as well.
Whether in the pending or any prior cases, reviewing the tapes or digital recordings of prior hearings is often helpful in refreshing a client’s recollection and essential to avoid surprise at trial and to develop a thorough and realistic litigation strategy.
Additionally, along with FOIA applications, obtaining the files from prior immigration attorneys and criminal defense counsel is essential to developing a complete history in preparation for all stages of the Immigration Court hearing process. Sometimes it is even possible to obtain records from non-attorney agencies or consultants.
Another critical area of inquiry involves a review of any prior trips to the U.S., their length, any visa status violations, border encounters, and non-immigrant or immigrant visa applications. Such a thorough review of a client’s travel history may reveal issues that need to be addressed or will otherwise assist in the gathering of supporting documentation to prove eligibility for certain immigration benefits.
As the client’s history and background come into clear focus, it is essential that the attorney analyze the potential for all forms of relief even if not currently ripe for consideration. Early on, and throughout the duration of the case, it is likewise critical to discuss what may be considered key, central, and material forms of corroboration and the necessity to document efforts, even if unsuccessful, to obtain such evidence. Along this line and to the extent possible, there should be efforts to authenticate certain foreign documents, often through letters and sworn affidavits as well as establishing the chain of custody of those documents to prove how they were obtained and mailed or brought personally to the U.S.
Preparing the Client and Other Witnesses to Testify
Whether in court during my years as an Immigration Judge, teaching, or in private practice, I have always viewed the preparation of witnesses as a critical yet often underappreciated and too often ineffective component of case preparation. The following represents a compilation of essential pointers and suggestions for preparing witnesses to testify. While there may be client-specific challenges for attorneys as they undertake such preparation, it is their responsibility to serve as an effective teacher, role-playing as necessary, offering reassurance, and demonstrating an empathetic awareness of just how monumental and nerve-rattling the approach of an Immigration Court hearing can be. After all, clients’ lives in America, that of their families, communities, and future generations are on the line.
- TELL THE TRUTH—A lie may lose the case. In a trial (as in other matters), honesty is the best policy. Telling the truth, however, means more than refraining from telling a deliberate falsehood. Telling the truth requires that a witness testify accurately about what he knows.
- DON’T GUESS—If a witness does not know the answer to a question, he should say that he does not know.
- BE SURE THAT A WITNESS IS INSTRUCTED TO NOT ANSWER A QUESTION UNTIL OR UNLESS HE UNDERSTANDS THE QUESTION.
- WHEN POSSIBLE, A WITNESS SHOULD GIVE POSITIVE, DEFINITE ANSWERS, and avoid saying “I think,” ‘I believe,’ or “In my opinion” when he actually knows the facts or, alternatively, there is nothing wrong with saying “I don’t know.”
- A WITNESS SHOULD NOT EXAGGERATE AND SHOULD BE WARY OF OVERBROAD GENERALIZATIONS THAT HE MAY HAVE TO RETRACT.
- IF AN ANSWER IS WRONG OR UNCLEAR, A WITNESS SHOULD CORRECT IT IMMEDIATELY.
- TAKE ENOUGH TIME TO UNDERSTAND THE QUESTION BEFORE FORMULATING AN ANSWER.
- ANSWER THE SPECIFIC QUESTION POSED AND THEN STOP, INDICATING IF ANY PORTION OF THE ANSWER IS AN APPROXIMATION OR ESTIMATE.
- A WITNESS SHOULD TALK LOUD ENOUGH TO BE HEARD, FOLLOWING THE INTERPRETER’S INSTRUCTIONS AND, IF TESTIFYING IN ENGLISH, SHOULD GIVE AN AUDIBLE ANSWER AND NOT NOD HIS HEAD “YES” OR “NO.”
- DON’T LOOK AT THE LAWYER FOR HELP WHEN TESTIFYING OR WHEN QUESTIONED BY THE GOVERNMENT ON CROSS-EXAMINATION.
- BE AWARE OF KEY QUESTIONS INVOLVING DISTANCES AND TIME, INDICATING WHEN ESTIMATING OR EXPLAINING THE FOUNDATION FOR A DEFINITE ANSWER.
- A WITNESS SHOULD KNOW HIS NAME, ADDRESS, AGE, ALL BIOGRAPHIC SPECIFICS ALONG WITH THE FACT PATTERN, EQUITIES, AND NEGATIVE FACTORS ASSOCIATED WITH HIS APPLICATION FOR RELIEF.
- DON’T ARGUE WITH OR BE SARCASTIC, EVASIVE, OR DISRESPECTFUL TO THE GOVERNMENT LAWYER.
- ALTHOUGH OFTEN CHALLENGING, A WITNESS SHOULD NOT LOSE HIS TEMPER.
- BE COURTEOUS, ANSWERING “YES, SIR,” AND “NO, SIR” WHILE ADDRESSING THE JUDGE AS “YOUR HONOR.”
- A WITNESS SHOULD AVOID UNDIGNIFIED AND DISTRACTING BEHAVIOR.
- A WITNESS SHOULD DRESS NEATLY BUT SHOULD NOT OVERDRESS.
- WHILE ACKNOWLEDGING CROSS-CULTURAL DIFFERENCES, THE LAWYER SHOULD BE REASSURING AND ENCOURAGE THE WITNESS TO LOOK AT THE JUDGE DIRECTLY AS MUCH AS POSSIBLE.
- THE LAWYER SHOULD MAKE SURE THAT THE WITNESS UNDERSTANDS THE JUDGE’S INSTRUCTIONS, PARTICULARLY THOSE RELATING TO ANY INTERACTION WITH THE INTERPRETER.
- THE LAWYER SHOULD PREPARE THE WITNESS FOR ALL FORESEEABLE QUESTIONS ON CROSS-EXAMINATION. IN FACT, THE WITNESS SHOULD BE ASKED AS MANY OF THOSE QUESTIONS AS POSSIBLE, PROACTIVELY, ON DIRECT EXAMINATION.
- A LAWYER SHOULD NEVER ASK A WITNESS A QUESTION WHOSE ANSWER IS UNKNOWN TO THE LAWYER.
- PREPARING FOR HEARINGS—IT’S NEVER TOO EARLY TO RETAIN AN ATTORNEY AND OBTAIN SUPPORTING EVIDENCE
Well qualified immigration attorneys know, and their clients soon learn that exhaustive efforts must be undertaken to obtain a wide array of documentation in support of applications for relief in advance of Immigration Court hearings. Even if a final hearing is not scheduled until sometime far into the future, now is the time for clients to begin to gather proof of events or health conditions from the past as well as present circumstances including tax returns.
Additionally, court dockets and scheduling can change unforeseeably, advancing different categories of cases while delaying others. Whether due to the COVID-19 virus, changing political priorities, or changes in the law, both attorneys and clients need to be vigilant and always with an eye to preparing for the next step in a case. While it is true that some types of evidence will need to be updated as a far-off hearing date approaches, there will always be a need to document present events and circumstances. Therefore, it is advisable for attorneys (and staff) and their clients to remain in contact and working together.
Moreover, especially in this era, in which the Trump administration has ramped up enforcement initiatives, issued restrictive Proclamations, Executive Orders, and new regulations, all foreign nationals without permanent resident status, whether or not scheduled for an Immigration Court hearing, need to obtain the advice of a qualified immigration attorney. Moreover, if possible, all such at-risk immigrants should retain an attorney to assure that they have an advocate ready to represent them at a moment’s notice even if there is no case currently pending against them. We are all living in dangerous times, especially immigrants who are the unfortunate targets of a desperate administration in fear of the upcoming presidential election.
BONUS POLICY ALERT:
ON JUNE 15, 2020, THE DEPARTMENT OF HOMELAND SECURITY AND THE JUSTICE DEPARTMENT’S EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR) PUBLISHED LENGTHY AND WIDE-RANGING PROPOSED REGULATIONS IN AN EFFORT TO REVISE AND SEVERELY RESTRICT ELIGIBILITY FOR ASYLUM, WITHHOLDING, AND PROTECTION UNDER THE CONVENTION AGAINST TORTURE (CAT).
THE PUBLIC, INCLUDING IMMIGRANT ADVOCACY ORGANIZATIONS, HAVE 30 DAYS TO OFFER COMMENTS, FOLLOWING WHICH THE GOVERNMENT WILL PUBLISH A FINAL REGULATION THAT WILL IMMEDIATELY BE CHALLENGED IN COURT.
THROUGH THIS BLOG AND THE ATTORNEYS AT SOLOW, ISBELL & PALLADINO, LLC, WE WILL KEEP CLIENTS, PROSPECTIVE CLIENTS, AND THE COMMUNITY AT LARGE APPRISED OF DEVELOPMENTS CONCERNING THIS PROPOSED REGULATION. SHOULD YOU HAVE ANY IMMEDIATE QUESTIONS OR CONCERNS, PLEASE FEEL FREE TO SCHEDULE A CONSULTATION WITH ONE OF OUR ATTORNEYS.
Thank you for taking the time to consider the important issues and suggestions discussed in this submission.
Hon. Charles M. Honeyman (Retired) joined Solow, Isbell & Palladino, LLC as Of Counsel in March 2020, after more than 24 years of service as an Immigration Judge. Following his retirement, Judge Honeyman has remained active in the field of immigration law through writing, speaking, teaching at CLEs, and offering strategic litigation counsel, and advising academic scholars conducting research on immigration-related topics. Judge Honeyman is a retired member of the National Association of Immigration Judges (NAIJ), a member of the prestigious Roundtable of Former Immigration Judges, and has rejoined AILA. Judge Honeyman is a member of the Maryland (active) and Pennsylvania bars and was formerly a member of the New Jersey bar.
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