Immigration Litigation: Fighting the Good Fight

In each and every one of us, when faced with conflict and danger, we are hard-wired to stay and fight, or to flee to safety. In the world of immigration, practitioners are faced with the same battle. The days of routine filings requesting immigration benefits are long gone.

Today, more and more practitioners (be it private, corporate or non-profit attorneys) are finding themselves busier and busier preparing for immigration filings that require more documentation, or requesting basic humane treatment of their clients. USCIS adjudications are increasingly requesting more documentation and placing onerous requirements on petitioners and applicants alike.

Meanwhile, ICE enforcements strategies have increased the number of detentions while not necessarily moderating humane treatment of those who have been detained. Kenny Rogers sings, “You got to know when to hold ‘em, know when to fold ‘em.” Are we as a collective group of immigration practitioners “folding” too easily? When clients come to you, with good facts and qualifications, yet are routinely issued RFEs or denials, aside from counseling clients on the risks, are you counseling them on the potential benefits of pursuing legal action? (Yes… I’m talking about actually using pleading paper to file a case in Federal Court!) What if you won and force the government’s hand into abiding by regulations in a reasonable manner. Sometimes, zealously advocating for your client means stepping outside of what is routine (i.e.: your comfort zone), and trying something a bit different.

Take the recent case of the Isenberg Center for Immigration Equality, who recently sued ICE for its use of ankle monitors as a form of “cruel and unusual punishment.” Read more of the storyhere. Victories happen and we, as a collective community, ought to share more of our victories, not just our challenges. So how does one figuratively dip one’s toes in litigation waters?

THE BASIC FACTS

Are your facts strong? What resolution is your client seeking? The reticence in most practitioners is because their clients are concerned about becoming the poster child for a certain cause, which may bring them additional, unwanted attention. If you take a step back to look at the forest though, the collective we are probably experiencing the same challenges across the board. Your specific case denial has been issued 1,000 times, but received by other law offices and organizations across the U.S. At the very least, inform your clients of this option (if indeed it is viable) and let them make an educated decision.

FIND AN EXPERT (OR BECOME ONE)

Branch out and speak with your colleagues. Utilize your legal professional list serves to locate experiences attorneys who have litigated these types of cases. This is where all those conferences, seminars and CLEs you attend will come in handy. (This is how you network!) Retain their services as co-counsel or seek pro-bono assistance. Prepare your client for a long and protracted “battle.” Obviously, not every client would have the resources for litigation, but this is where your skills of zealous advocacy come into play.

FIGHTING THE GOOD FIGHT

Remember that scene in “A Christmas Story” when Ralphie finally stands up to the local neighborhood bully? Now, I’m not saying that certain government agencies are necessarily bullies … but when faced with denial after denial, it can surely feel like it at times! When enough practitioners decide to put up a good fight and pursue legal tactics that zealously advocate for clients, the government may finally be more amenable to listening to the chatter.