In the Googlean sense, immigration lawyers likewise have their “circles” (if a noun can become a verb, I guess it can be an adjective as well). We lawyers of the immigration arts congregate privately in many places including local bar associations, on IMMLOG (a practitioners’ list serve run by Kevin Dixler) and IMMPROF (a list serve for professors of immigration law, hosted by Hiroshi Motomura), through the American Immigration lawyers Association (the national immigration bar), which has a New Members Division, a group for Senior Lawyers (known as the Silver Foxes, led by Ken Stern), and numerous AILA Interest Groups. There’s even “Cool Immigration Lawyers,” a private meeting place on Facebook “for cool immigration attorneys who think it is awesome to help people and to insist on justice for everyone.”
My prime immigration tribe is the Alliance of Business Immigration Lawyers (ABIL). It’s expanded wonderfully over the last 10+ years since I founded it; but it still performs its original mission very well. ABIL was established on the principle of “competitive empathy,” the notion that although we operate in separate law firms, “none of us is as smart as all of us.” I liken it to a 12-Step Group for battle-weary immigration practitioners who acknowledge we’re “powerless” over the ever-crashing waves of change washing over our chosen field of law.
The most recent tsunami — the Obama Administration’s program of immigration enforcement abatement, known as DACA (Deferred Action for Childhood Arrivals) — has flooded the immigration tribal counsel with challenges and questions since August 15 when U.S. Citizenship and Immigration Services (USCIS) released DACA forms, instructions and FAQs. These include Form I-821D, Consideration of Deferred Action for Childhood Arrivals, with nine pages of instructions, Form I-765WS, a work-need worksheet, and a DACA web page with FAQ.
The challenges include concerns among DREAMers and immigration community-based organizations that lawyers may price-gouge to handle DACA cases, reflected recently by perhaps the most-famous DREAMer, Jose Antonio Vargas, who tweeted from @Joseiswriting on August 16: “I try to be positive, but there is a special place in hell for lawyers who take advantage of #DACA by overcharging, etc.” (I tweeted back to Jose, who is my client: “[Jose]: Please don’t jump to conclusions. You need to know the facts of the case to know if the fee is fair or foul.” He responded by kindly urging his Twitter followers to follow: “@angelopaparelli: a great lawyer who’s been advising me and, in turn, keeping me sane. [T]hank you for the help and support!”)
The flip side of this concern is the difficulty individual immigration lawyers have had setting an ethically proper and reasonable fee in a practice area where fixed, project-based fees are the norm. Outside observers without an institutional history of how immigration-benefits programs have been (mis)managed might naïvely assume that the task must not be too complex, just three forms, the I-821D, the work permit application and the corresponding worksheet to show economic need, supported by written proof of a few “simple” facts (entry to the U.S. before age 15, five-years of continuous presence as of June 15, 2012, presence in the country on that day, no older than 30, and no serious criminal history.) They would be mistaken.
USCIS knows that Congress, the Media, the Presidential campaigns, and the pro- and anti-immigration interest groups will be watching closely to see whether the agency can handle the estimated 1.7 million youth potentially eligible for DACA, whether fraud will infect the program or be minimized, whether the agency will act with humanitarian compassion under law or ICE-like negativity in exercising prosecutorial discretion, and whether employers who help a DREAMer acknowledge physical presence and past or current employment in the U.S. will face investigation and enforcement actions by USCIS’s Fraud Detection and National Security Directorate (FDNS) or by ICE.
The immigration bar, electronically-transmitting the 21st Century equivalent of tribal smoke signals over these last frenetic days, knows that immigration confusion and complexity will flourish like a Chia pet on growth hormones as USCIS’s implementation of DACA unfolds. Witness the many unanswered issues and concerns that DACA has generated as reflected in the notes of the USCIS’s DACA Public Engagement on August 14, provided courtesy of Sally Kinoshita, an immigration lawyer and Deputy Director at the Immigrant Legal Resource Center (ILRC), the ILRC’s DACA Criminal Bars Chart, and postings of the American Immigration Council by its Legal Action Center (DACA Practice Advisory) and Immigration Policy Center (Deferred Action for Childhood Arrivals: A Q&A Guide [Updated]).
Even the most mundane issues involve significant costs that clients or lawyers must bear unless answered soon. Attorney Marty Rosenbluth, Executive Director at the North Carolina Immigrant Rights Project asks of Facebook’s “Cool Immigration Lawyers”:
I know that some questions USCIS/DHS/ICE will answer with “it depends on the totality of the circumstances”, but I think we can get a clear answer to a few questions before we start filing hundreds of these things. If we go through all the trouble of tabbing the appendices, are they going to be stripped off so the documents can be scanned before the person who will be deciding actually reads it? We thought it would make the [applications] easy to follow, but if they are just going to be stripped off beforehand we won’t bother.
Also, we were thinking of using color coding, but if the scans are [black & white] there is no point there either.
* * *
Thank goodness for immigration-lawyer tribes. Besides “help[ing] people and . . . insist[ing] on justice for everyone,” while trying to keep our staffs paid and doors open, we also dedicate our time and talent to advise and represent DREAMers as they wade through DACA’s treacherous waters. Were it not for these collegial tribes, many of us (probably myself included) would have thrown in the towel years ago, mirroring the fate of Murray Burns, the protagonist in Herb Gardner’s A Thousand Clowns.
Played by Jason Robards in the classic 1965 film, Murray explains why he finally had had enough and quit his job as TV personality, Chuckles the Clown. While ordering a martini one evening after work, he was asked by the bartender if he wanted an onion or olive with it. Murray responds: “Gosh and golly, you betcha!” We are not clownish robots with pens and swords. Our immigration tribes help remind us of who we are and why we do what we do.
Although I’d seen the film and loved it, I couldn’t find the Chuckles the Clown quote on the internet except in stray chats and a web-published book, The Robot’s Pen and Sword, by an unnamed author whose site is the source of the photo above.
[Blogger’s post- postscript]
My last blog post, Immigration D-Day for DACA: Get Protection!, generated a thoughtful, heartfelt critique by a good friend, and fellow immigration tribesman, Gary Endelman. Gary took me to task for my “use of the Holocaust as a standard of comparison” to the plight of the DREAMers. On reflection, I was wrong, and apologized to Gary, and now do likewise to anyone else offended by my inapt metaphor. Gary, who is not only an immigration scholar of well-deserved repute, but also a Doctor of History, gave me permission to follow up on my blog to communicate a larger point, which he eloquently laid out, and with which I fully agree:
I would simply urge that we all respect the historical integrity of each experience and not use any incident or event as a catch phrase to describe something that, while horrible, may be fundamentally different. The historian in me.
I think you might want to follow up this blog with another one that perhaps can capture the larger point, which is that whenever any nation denies those who live there the human right to become all that they are capable of being, whenever we violate the essential human decency of our friends and neighbors, whenever we ignore what unites us to focus on what divides us, that is the seed corn for intolerance and hate.
I also apologize to any Native Americans and others who may have been offended by my fondly recalled participation in the Indian Princesses, a Girls-Dads group sponsored by the YMCA’s Indian Guides. No offense is intended; only admiration for the Indian nations’ wholesome, natural and eco-friendly way of living on the earth.