Two of Cornell Law School’s clinics, the LGBT Advocacy Clinic supervised by Susan Hazeldean, and the Farmworker Legal Assistance Clinic supervised by Beth Lyon, filed with the immigration court in Buffalo, New York motions requesting that law student interns be permitted to represent three clients in removal proceedings. All three clients were Central American and included a young gay man who feared for his life and was seeking asylum in the United States, an unaccompanied youth with a pending guardianship action in state court, and a mother in proceedings with her ten year old son.
All three motions were denied by Immigration Judge (IJ) Philip Montante, Jr. One was denied with a “checklist” order, and the other two were denied in written decisions stating that the court was too backlogged because of a new translation service that had been implemented and was causing delays. The IJ clearly implied that law student representation would slow down the process, contrary to all the evidence published about the need for such clinical program representation. In one decision, the IJ went so far as to reason that the court was “not a law school clinic.”
Given the importance of the issue, Professors Lyon and Hazeldean decided to file interlocutory appeals, and I agreed to handle them on the clinics’ behalf. This was an essential issue for me as well as the clinical law community since my organization, the Erie County Bar Association Volunteer Lawyers Project (VLP), has referred many cases to the LGBT Clinic, including the one in this matter, and the need for the clinic’s expertise and proven success is invaluable to our clients.
In addition to my work on these cases, Professor Geoffrey A. Hoffman, Director of the Immigration Law Clinic at the University of Houston Law Center agreed to author an amicus brief in support of all three interlocutory appeals. Professor Hoffman also consulted with the Cornell clinical programs and collaborated with them regarding trial court and appellate strategies. Professor Sheila Martinez Velez of the University of Pittsburgh agreed to assist on the amicus and her students did research on the brief, contributing to the brief extensively. The brief was submitted by both Professors Hoffman and Martinez Velez in all three cases. Approximately 40 law professors signed on to the Amicus brief.
In all three matters, an interlocutory appeal was the appropriate remedy since the issues in these cases involved prejudice to the constitutional right to counsel of the respondents and raise a recurring question in the handling of cases by an immigration judges as set forth in the BIA Practice Manual §4.14(c) and Matter of K-, 20 I&N Dec. 418 (BIA 1991) and Matter of Guevara, 20 I&N Dec. 238 (BIA 1990). We also filed a motion for the Board to consider these appeals concurrently pursuant to the BIA Practice Manual at §4.10(b).
The interlocutory appeals, which have only recently been filed and remain pending, raise three issues. First, IJ Montante’s orders denying Cornell’s motions for student practice orders deprive the respondents of their due process right to counsel of their choice as required by Immigration and Nationality Act (INA) §240(b)(4)(A). This provision states that an alien in removal proceedings shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings. See also Matter of C-B-, 25 I&N Dec. 888 (BIA 2012). Persons entitled to represent respondents in removal proceedings are set forth at 8 C.F.R. §1292.1. The regulation includes attorneys admitted in the U.S. who have duly registered with EOIR, as well as law students and law graduates. For the latter group to be eligible to represent a respondent, s/he must meet specific requirements listed in §1292.1(a)(2) and s/he must attest in writing that those requirements have been met. 8 C.F.R. §1292.1(a)(2)(ii). Consequently, we argued that there is no discretion to prohibit any representative from appearing on behalf of a respondent. In these three cases, it appears the IJ denied the law students’ appearance solely on impermissible discretionary grounds.
Second, while the IJ is authorized to consent to the appearance by law students, due process dictates that his rationale for denying the motion made by Cornell’s clinical programs, assuming it is even permissible under the regulations, be fundamentally fair. In one of these matters, as stated above, no rationale was given. In the other two, the denials were based on impermissible speculation that law student practitioners, under the supervision of an experienced clinical law professor, would delay the process, as well as a concern that the court’s new translation services were already causing delays in the IJ’s docket. Neither justification is legally correct. There is no evidence that permitting the law student interns who had worked diligently on the cases to appear would have caused any delay, and any concern about the availability of interpreters is wholly irrelevant to the motion for law student appearance.
Third, the Executive Office for Immigration Review through various measures (hereOPPM 08-01, at 2Permanent Commission on Access to Justice (Report to the Chief Judge, p. 1, November 2014; and the Second Circuit in the “Katzmann Report” See “Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings” at 3, 19-21 (December 2011), have implemented several commendable initiatives recently to extend pro bono legal services to the poor and indigent, who, like these three respondents, are facing dire legal consequences from potential removal from the United States and seek to apply for relief but cannot afford counsel. IJ Montante’s decision in this matter wholly contradicts the policies expressed by such entities.
Sophie Feal, Supervising Immigration Attorney, Voluntary Lawyers Project, Inc.
UPDATE (Jan. 20): Here is the brief. Download AMICUS brief.Hoffman (redacted)
KJ