Let’s not kill all the lawyers — Removing Barriers to Effective Legal Representation in Immigration Matters

The famous line from Shakespeare — “The first thing we do is, let’s kill all the lawyers” (Dick the Butcher, Act IV, Scene II,?Henry VI, Part II) — is interpreted in?widely divergent ways. My handy AI assistant offers these examples:

1. An expression of frustration with the legal system and the perceived corruption or incompetence of lawyers.
2. A call for the dismantling of the legal system in order to create a more just society.
3. A satirical comment on the way society often scapegoats lawyers for its problems.
4. A reflection of the character's desire for lawlessness and chaos, as the line is spoken by a character plotting a rebellion.
5. A critique of the excessive power and influence that lawyers can have in society.

The line about “attorney-cide” came to me as I pondered how the federal courts and immigration agencies interact with lawyers. Although Section 292 of the Immigration and Nationality Act (INA) provides that a noncitizen in removal proceedings shall have a right to counsel "at no expense to the Government," and regulations of U.S. Citizenship and Immigration Services (USCIS) at 8 C.F.R. § 292.1 authorize attorneys to represent noncitizens in a variety of immigration benefits requests, federal statutes and immigration officers often plant barriers that impede effective legal representation.

Consider these examples:

• The Supreme Court will soon decide United States v. Hansen and interpret the scope of 8 U.S.C § 1324(a)(1)(A)(iv). This statute makes it a felony if any person “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” According to the Pew Research Center, there were 10.5 million unauthorized noncitizens in the U.S. in 2017, and few knowledgeable observers believe that the number has shrunk in the ensuing years. Unsurprisingly, unauthorized noncitizens often seek counsel from immigration lawyers. Will the lawyers be barred from informing them about several legal avenues that authorize relief from removal or lawful status if the Supreme Court decides Hansen to mean that by providing such guidance the lawyer is “encourage[ing] or induc[ing]” a noncitizen to reside in the U.S. “in violation of law”? Will the lawyer be prohibited from explaining the path to a green card through cancellation of removal or asylum, or about the avenue available to unauthorized workers who are victims of worksite exploitation? We’ll know once the Supreme Court decides Hansen.
• There is no right to be represented in person by counsel at the border or a port of entry. As a practical matter, the State Department takes the same approach by allowing consular officers to decide if all visa interviews conducted by consular interviews be with counsel present. State provides in its Foreign Affairs Manual, at 9 FAM 602.1-2.b: "Whatever policies are set must be consistent and applied equally, either all attorneys at post must be permitted to attend consular interviews or none can." Not surprisingly, virtually no consular posts allow attorneys to be present during consular interviews. The American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) tried to change that by submitting a May 24, 2017 ““Petition for Rulemaking to Promulgate Regulations Governing Access to Counsel” (for which I served as a coauthor), as allowed by 5 U.S.C § 553(e) of the Administrative Procedure Act. Needless to say, the Trump Administration did not embrace the proposal. AILA and AIC should refresh the proposal based on intervening experiences and ask the Biden Administration to adopt it.
• USCIS has provided a method for electronic filing of applications to extend or change nonimmigrant status but only in situations where the noncitizen applicant “will not require legal or accredited representation at any point in your request.” What USCIS does not say is that noncitizen e-filers must comprehend and comply with 17 pages of dense text in the instructions?to the application form and that the form’s instructions are as binding as agency regulations.

I offer an additional view on the “kill-all-the-lawyers” line beyond those offered by my handy AI assistant. I don’t speak for all attorneys, but my take is that by eliminating, if not killing off, immigration lawyers, federal immigration agencies get away with infringing the legal rights of noncitizens and the American businesses and families who care about them.