A primer for the new immigration practitioner

Issue January/February 2016 By Joseph Molina Flynn

As the old adage goes, "A little knowledge is a dangerous thing." Immigration law is very complex, and is fraught with opportunities for attorneys - and non-attorney practitioners - to commit errors. At times, these errors can be attributed to the cross-pollination, if you will, of immigration and other areas (i.e. criminal and family law). This article aims to alert new immigration practitioners about issues they may encounter and how to approach them.

Start with something simple

The stakes in immigration are incredibly high. One mistake could result in a client's removal (deportation) from the United States. The effects of removal spread far beyond the affected individual, as family members are faced with the difficulty of deciding whether to stay in the United States or join the removed individual. Two fairly straightforward processes for new immigration practitioners are renewal of lawful permanent resident (LPR) status and naturalization. The clients seeking assistance with these processes have been in lawful status for a few years and as a result are slightly less scrutinized thus contributing to the simplicity.

Reader beware: simple does not mean foolproof. Naturalization, for instance, involves the completion of a 21-page form, which must be attached to several pieces of evidence. Upon first glance, the questions on the form are easy to follow. The seasoned immigration practitioner will warn you that these questions carry with them a long and tangled history that can prove detrimental to your client.

For example, one question on the naturalization application asks for a list of the applicant's travel outside of the United States within the five-year period preceding the application. Depending on the amount of time the applicant spent outside of the United States, she could be ineligible to naturalize and be forced to wait an additional period of time prior to applying. The immigration practitioner must, in such a case, be able to identify those cases and advise the client to wait the appropriate time rather than having to go through the process twice. The wrong response to other questions on the naturalization application can have more severe consequences, up to and including, removal and a permanent bar to reentry.

To eliminate some of the anxiety, new attorneys can get involved with established pro bono projects such as Project Citizenship. Project Citizenship (and other organizations) host naturalization workshops where volunteers complete naturalization applications for members of the community. These workshops provide new practitioners with the opportunity to go through several of these applications while resting assured that someone with more experience will review it prior to being submitted to U.S. Citizenship and Immigration Services (USCIS).

Understand your client's fears

Immigration clients, at times, feel disillusioned by the way our government has treated them. Undoubtedly, some of this feeling is compounded by the rhetoric we hear daily on the news (generally from the likes of Donald Trump). But even when their experiences are not shaped by the vitriol in the media, clients experience fear and confusion when seeking immigration relief.

Lawyers need to be able to penetrate through that fear and establish a trusting relationship allowing the client to be completely honest and forthcoming. In reality, attorneys must build trust with every client. Still, the cultural nuances of immigration practice make trust building particularly unique.

At a minimum, attorneys should become familiar with the culture of the clients they represent. The tone of the intake should be geared toward each client's sensitivities. Intakes can prove far more fruitful if not handled as a question and answer session. Focus instead on the services you can provide and how you can help the client get the desired relief. Minutiae can be gathered later in the process. This approach will leave clients with the sense that the attorney cares about their legal issues and respects their emotional space.

Know when and how to say 'no'

One of the more difficult tasks I have encountered in my immigration practice is learning when to say "no." Immigration clients have compelling stories, and as practitioners we want to help them. The Immigration and Nationality Act (INA) is both comprehensive and limited in its reach, which, unfortunately, means that not every client has a ground for relief available.

The following (oversimplified) dialogue is common in immigration intakes: "I have been in the United States without documentation for the past 25 years. I entered without inspection; I am tired of living in the shadows, and all I want is to have some sort of work permit." These stories are so pervasive that our instinct is to help whatever way we can. It is imperative to understand that charging a client legal fees for something we cannot, in fact, accomplish is unethical and can leave clients in worse positions than they began. In practice, the attorney should take the client's information and promise to call the client back should a ground for relief become available at a future date.

Decide how you will structure your fees

Fee structure is fear-inducing, particularly early in practice. I am no expert; I was admitted to practice in the commonwealth in June of this year. Gauging the breakeven point for my cases has proven difficult. Thus, the fee-setting conundrum.

In order to eliminate some of the uncertainty, I have structured my immigration practice as a flat fee practice. I keep track of the amount of time I spend on each matter as a barometer for whether my fees are too high or too low. Because I am careful when setting my fees, when a client simply does not want to pay the flat fee charged, I decline representation. For those clients who cannot afford the fee, I analyze whether I can accept the matter on a pro bono or partial pro bono basis. If it makes economic sense, I take it; if it does not, I refer the client to other providers within the community who may be able to provide more affordable representation.

Know the landscape and sell yourself

Immigration clients are savvy. They communicate with others within immigrant communities, they talk about the merits of their cases with each other, and they price shop. Price shopping can lead clients to seek the services of unlicensed individuals ("notarios") and non-attorney practitioners who are accredited by the Board of Immigration Appeals (BIA).

As an immigration practitioner, you'll need to learn to deal with this competition. Notarios and non-attorney practitioners alike will often promise to do the same work as an attorney for a portion of the price. Notarios, however, will often leave their clients in worse situations due to shoddy work. Therefore, the client may eventually end up having to pay an attorney much more than the initial quote to resolve the issue the notario created; make sure your client is aware of that possibility and use the opportunity to sell your credentials.

Not all non-attorney practitioners can be painted with the same brush though. Many religious institutions are licensed by the BIA to represent individuals in immigration proceedings. These institutions fill the gap by providing low-cost or pro bono services to those individuals in the community who are most in need of assistance. To that end, these institutions can be our allies; they can recognize when cases go beyond their level of expertise and can become a plentiful referral source.

Ultimately, immigration work is both challenging and rewarding. Receiving good news for immigration clients is a great source of pride for the immigration practitioner. Approach immigration practice carefully, start with the basics and build from there. Most importantly, know when to look to your mentors for assistance.