Tuesday, February 2, 2016
The three interlocutory appeals of denials of law student appearances filed on behalf of Cornell Law School’s clinical programs were successfully granted by the Board of Immigration Appeals (BIA). I would like to take a moment to pause and reflect on this important development.
These outcomes should be considered in the light of several backdrops --- framed by several different and interrelated contexts and issues. I address just three here (there are many more which could be discussed and evaluated): (1) the strange animal that is an “interlocutory appeal,” (2) the interesting world of law student practice and legal education, and (3) the extreme pressures, idiosyncratic views, and difficulties faced daily by Executive Office for Immigration Review (EOIR) and its judges, in light of the current backlog and our broken immigration court and political system.
First, it should be emphasized that interlocutory appeals are rarely filed and even more rarely granted. I counseled the filing of these interlocutory appeals because in my experience practicing immigration law it is a viable (if rarely used) option. Under these circumstances, it seemed directly relevant and appropriate to righting this particular wrong. This strange animal of appellate practice, “interlocutory appeals,” is even stranger in the world of immigration litigation because of the lack of articulated rules (think, no federal rules of evidence, no federal rules of appellate procedure) but instead a practice manual and other rules which sometimes seem to encourage ad hoc application of rules and standards. The standard as you may know if you have ever considered filing one of these strange appeals is very burdensome. According to the BIA Practice Manual, they must involve “important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges.” BIA Prac. Man. § 4.14(c). In the past, the Board has entertained interlocutory appeals where an IJ has severely mishandled a case below, in some way, which may involve for example improperly allowing an attorney to withdraw without following the proper requirements, or improperly administratively closing a case. In my own practice, I have filed an interlocutory appeal in a case involving in my view an improper denial by an IJ of a motion to suppress under the Fourth Amendment, but the appeal was not successful. The important point is that one is asking the BIA to intervene before an order of removal is even issued, and this intervention obviously is disfavored and necessarily will procedurally complicate the administration of the case before EOIR. That said, in appropriate cases it is surely an important safety valve which provides some assurance that the decisions of IJs in the day-to-day operations of the court are not running roughshod over the rights of respondents, and in the cases of law school clinical programs who are trying their best to do many things well: represent their clients with zeal and advocacy, teach their students, and fulfill their obligations to the court.
The second backdrop that these decisions should be viewed against is the world of law school clinics and law student appearances. It is sometimes not appreciated or perhaps underappreciated the level of commitment these clinics have (and I would say, necessarily have) toward their many clients and students. In order to be a clinical educator working in this specialized field of immigration practice, you have to model professional and personal competence on a daily basis. Students will look to you as an exemplar of legal practice and procedure. Because the students are working under a faculty member who is a practicing attorney, we cannot let them fail. Over and above the fact that there is a fiduciary duty to teach and mentor students, in addition we cannot and should not let them make any mistake which would reflect on our bar card, and otherwise impact the ethical rules. The level of attention to detail this necessitates cannot be understated and moreover should be viewed in the context of a high (almost 100%) turnover rate of students year to year or semester to semester, as new students come into the clinical program. A friend and former colleague once commented to me as a clinical professor that there is no way he could run a practice where every several months you have a new crop of new associates who have to learn the ropes again and again, without the assurances of continuity that a firm usually provides. This continuity of course we provide and comes from the rigors of our program and the values of our professors. In these cases, one of the ironies of the IJ’s denial of law student appearances in at least one of the cases arose from the fact that students had already represented the clients in multiple proceedings, and had merely wanted the ability to continue on as counsel, considering the vast time, effort and important rapport they had built and achieved with these vulnerable clients.
A final backdrop to be considered is our broken immigration court system as an institution and the dire political context in which we find ourselves. We should not be afraid to confront and address these blatant violations such as the ones found in these cases. In a respectful and considerate way, there must be more scholarship, discussion and public airing of these cases where access to courts have been cut-off, diminished and constitutional rights tarnished or ignored. Although there is lip service paid to the “rights” of immigrants in the media, the fact remains that of the women and children currently with final orders of removal who have been prioritized by the current administration, the vast majority (86%) had no legal representation whatsoever. See TRAC Report. Moreover, we know that just having an attorney representing one of these women and children (although never a guarantee to any particular outcome) means a 14-fold increase in the person’s chances. Id. And that is why the decisions below were so troubling. Why, in the end, it was a moment for solidarity and effort. I was humbled by the outpouring of support from many different corners of the world of legal education as soon as I put out the call for signers on to the amicus briefs. To my surprise I was quickly contacted by another law school, Sheila Velez at Pittsburgh and her students, and a variety of excellent professors who offered their time and expertise to write detailed and persuasive affidavits, which were attached to the briefs and discussed, and once a draft had been created, there was a further outpouring of helpful edits from many people from all over the country. This assistance was needed and appreciated because the outcome of an interlocutory appeal cannot be predicted or predetermined. The IJ in one case issued a form or “checklist” order that was offered as the only justification for the denial of law student appearance and which showed that this judge thought this was a trifling matter of perhaps of little importance. Later, in two subsequent cases, he did a bit more to provide purported reasons for the denials which were in no way related to the issue at hand. The cited reasons, the backlog and translators, while I am sure a source of concern and pressure for the judge did not in any way justify violating the right to counsel. I am heartened that the BIA saw through the smokescreen. These decisions by the Board can be seen as a sound rejection of the IJ’s implicit, erroneous and misguided message that instead of being part of the problem, law school clinics and law students must be viewed as part of an integrated solution as we move to address the terrible plight of women and children (and in fact of all respondents) stuck in the immigration court system today.
Geoffrey A. Hoffman, Director-University of Houston Law Center Immigration Clinic, Clinical Associate Professor