Small changes, my mother taught me, can sometimes make the biggest differences.
As a Riverside immigration attorney, that’s how I view a procedural change being proposed for immigrant bond and custody hearings.
In late September, the Executive Office For Immigration Review announced a proposed amendment to its court rules which would now allow a lawyer, attorney, or legal representative to appear on behalf of an immigrant defendant solely for custody and bond proceedings.
On the whole, the proposal is a relatively minor procedural change, certainly not earth-shattering news by any stretch of one’s legal imagination.
As a result, it received scant attention from major media sources.
It is, however, a potentially life-saving shift for the families of many detained immigrants.
Under the suggested revision, a lawyer who agrees to help an immigrant try to obtain a reasonable bond and release from detention would no longer be bound to represent him or her at future non-bond related hearings.
Current regulations require that once a legal representative enters an appearance for custody and bond proceedings, he cannot automatically withdraw from the case. Rather, he must file a motion to withdraw from the case – and it must be approved by the immigration judge before he is relieved from handling additional hearings.
The Impact Of Over-Zealous Detention Policy On Immigration Court Case Backlogs
The EOIR’s proposed alteration is not entirely benevolent.
The switch is related to the massive overload of deportation and removal cases at immigration courts, and the psychological burdens it imposes on immigration judges who are assigned to handle the detained cases calendar.
Although not explicitly stated, the current Central American Refugee influx has probably also affected the immigration courts’ new outlook towards separate representation for bond and custody hearings vis-a-vis regular hearings.
Without such a change, the judicial backlog will grow worse if attorneys do not help move the immigrant youth cases forward.
In my view, the rule change for attorney appearances is a good move.
For years, when it comes to bond and detention, as a deportation defense lawyer, I have been torn between my desire to pursue justice for individuals from other countries facing separation from their families and my obligation to feed my own family.
Allow me to briefly explain.
For many immigrant families, when they initially contact a lawyer’s office, the question is simple. Not trained to look ahead, they focus on the here and now. They want to know:
“Can You Help Me Get My Spouse Get Out Of Immigration Jail On Bond?”
Unfortunately, for most immigration defense attorneys, the legal and business aspects require more complex calculations.
The reality is that many immigrants cannot afford to pay an attorney to represent their detained family members and a bond amount to secure their release from custody at the outset of cases.
Often they offer to pay for the bond representation. But they cannot guarantee any payments for additional hearings.
When the detained individual is also the main wage-earner of the family, the financial burden is even greater.
In such cases, putting up a fight to secure a reasonable bond is critical to the long-term defense of many immigrants. If the wage-earner can be released and returns to work, the family has a better chance of paying for high quality legal assistance.
Yet, due to the inflexibility of present EOIR rules, venturing into cases involving immigrants in custody without a retainer sufficient to cover court appearances after the bond hearing is not only a financial, but also a time risk for lawyers.
Unlike other courts, immigration courts have not allowed attorneys to make limited appearances. As noted above, once an attorney appears in a case, the lawyer may be mandated to handle the entire matter, even if the case takes several years.
This places lawyers, however well-meaning, between a judicial rock and legal hard place.
The proposed amendment alleviates this dilemma.
Separate Representation For Custody And Bond Proceedings
The Federal Register, September 17, 2014
“Permitting such separate appearances is expected to encourage more attorneys and accredited representatives to agree to represent aliens who would otherwise appear pro se at their custody and bond proceedings, which, in turn, will benefit the public by increasing the efficiency of the Immigration Courts.”
New Rule Promotes Family Unity
In its commentary to the proposed regulation modification, the statistical basis for the change was provided by EOIR:
- Of the 265,708 cases involving detained aliens from FY 2011 to FY 2013, 79% (210,633) were unrepresented.
- By contrast, of the 214,506 cases during the same time frame for immigrants who were never detained, only 23% (50,075) were unrepresented.
If the change goes into effect, detainees will have an easier time obtaining counsel to represent them on a limited basis to fight bond and custody issues.
An additional byproduct is that many lawyers will be willing to handle such hearings on a reduced fee basis, hoping to secure an agreement for more work later.
In short, the proposed change is a win-win-win.
The immigration courts benefit by more expeditious processing of cases.
Immigration lawyers could represent such individuals without having to take a risk that their limited fees representation will last several years.
Most significantly, detained immigrants are likely to obtain favorable family unity decisions more often.
By Carlos Batara, Immigration Law, Policy, And Politics