Towards Better Organizer-Attorney Collaboration on Deportation Defense
In deportation defense work, immigrant rights organizers can work most effectively to stop a deportation when they collaborate with a reliable immigration attorney. Viewed from another perspective, an attorney can often better serve his or her client with the help of organizers. However, complications can arise with this type of collaborative work.
In recent years, collaboration between organizers and attorneys has most commonly involved Education Not Deportation (END) campaigns to stop the deportation of undocumented youth. END cases were rare before the summer of 2009. Now the federal government routinely agrees not to deport undocumented youth who would qualify for the DREAM Act, were it to be enacted, and who reach a certain threshold of visibility and public support. (The government routinely deports tens of thousands of DREAM-eligible youth who remain invisible to the public--and even some who have strong public support.)
I have worked on several END cases since 2009 as an immigration attorney. In my experience, an END case has the best chance of success when an attorney works closely with organizers and the client's existing support network. Attorneys have access to and relationships with immigration officials that organizers and family members usually lack. Organizers have the trust of the community and are not afraid to directly challenge the government. Organizers, attorneys, and others worked together on the early END cases and created the existing END model. Organizers and attorneys are better able to stop deportations when they work together.
Unfortunately, this does not always happen. Communication between the attorney and organizers sometimes breaks down, to the detriment of the client. Attorneys sometimes have a limited view of what is possible in a given jurisdiction, failing to acknowledge successes in similar cases elsewhere. Attorneys can be too cautious, apprehensive of damaging delicate relationships with Immigration and Customs Enforcement (ICE) attorneys or deportation officers. Out of habit, attorneys can shut supporters and organizers out of the case, foregoing the collaborative model for a "what I say goes" approach. It's worth taking a closer look at how and why these problems arise, and what can be done to address them.
An attorney's primary professional obligation is to zealously represent a client and protect the client's interests. Immigration attorneys are accustomed to managing every aspect of a deportation defense case and can be wary of outside influence, even--or sometimes especially--from close family members. Activists working without compensation may be overstretched and not able to consistently work on an individual case. (The same concerns can be raised about attorneys, especially when work is done on a pro bono basis.) Activists may have broader political objectives that can diverge from the interests of the client. Ideally, an attorney stands in the place of the client and acts as the client would if the client had the expertise and resources to represent himself.
In practice, however, legal representation typically falls far short of this ideal. At the extreme, some immigration attorneys openly cheat their clients with little fear of reprisal. Tahir Mella is the most egregious offender in Philadelphia, where I practice. Prosecution of immigration attorneys, or even censure by disciplinary authorities, is rare.
More common than outright thievery is neglectful or substandard representation. Immigrant clients and their families often have limited means, may not speak English, and are generally excluded from the protections offered to citizens by the criminal justice and civil law systems. They are actively targeted by law enforcement at all levels of government. They cannot work or travel without fear of imprisonment and exile.
In this environment, it is easy for even competent and well-meaning immigration attorneys to let some cases slip through the cracks. I wish I were blameless in this regard, but I am not. I wish attorneys employed by nonprofits were exempt from this criticism, but they are not. Attorneys rarely face meaningful consequences when a case goes wrong due to poor representation. I have never heard of an immigration attorney being sued by a client for malpractice. I have, however, had clients tell me of immigration attorneys who have sued or threatened to sue them. Sadly, the only people less trusted by the immigrant community than immigration lawyers are immigration officials and judges.
END cases provide lawyers with the opportunity to use the latent strength of the undocumented community to help our clients. Some best practices for working with organizers on public or quasi-public deportation defense campaigns are:
- Maintain open communication with organizers and family members. Be available when they call or email. Join conference calls, even after normal business hours
- Share filings and other case documents with organizers, and solicit feedback from them about legal strategies.
- Embrace humility. I have had my share of disagreements about case strategy with organizers, and have been proved wrong by events more often than not. I have applied tactics and practices I've learned from END cases to other casework. Remember that, on an END case, the attorney is only one member of a team.
- Keep an open mind. The immigration bar never imagined that deportations for an entire class of people could be stopped by nothing more than public support. We cannot anticipate what lies ahead as the immigrant rights movement grows stronger.
- Step out of your comfort zone. Don't let fear of damaging relationships with ICE or judges drive decisions. Hear organizers out when they propose novel or aggressive strategies. By the same token, use your legal expertise to inform and strengthen the organizing approach.
We attorneys work in an unjust legal system situated within a fundamentally anti-immigrant society. It is easy enough to fool ourselves into believing we are representing a client's best interests when sometimes we are not. Unlike our clients, we are protected by and benefit from this system. If we take seriously our obligation to zealously represent our clients, we must become better informed about the needs of our clients and the challenges they face. Undocumented activists and organizers often have a better understanding of our clients' struggles than we do and can inform our legal work to help us provide better representation. They have built a national network to win cases that would otherwise be hopeless. We do our clients a disservice when we fail to recognize these realities.