Written by: Stephen Manning

It is increasingly common for immigration lawyers who lose circuit cases to get calls from lawyers offering a deal that is too good to be true. The callers say that at absolutely no cost to you or your client, they will prepare a costly petition for writ of certiorari and take over all of the work to handle the case at the Supreme Court. All you need to do is say yes, and they will take care of the rest.

Like all deals that seem too good to be true, this one requires careful thought. Yes, your client wants to stop deportation. Yes, the circuit decision was wrong. But neither one means that you should necessarily seek review in the Supreme Court or, if you do, take on the services of the first big name law firm or law school clinic that calls.

Why? It should come as no surprise that the Supreme Court is a treacherous place for litigating immigration cases. Although we have had some big wins, we have also had major losses. And even if there is a chance at a win, everyone, including your client who lost in the circuit, has an interest in having the best possible strategy pursued.

Two years ago, lawyers from leading immigration advocacy organizations (including the AILA amicus committee) came together to form the Supreme Court Immigration Law Working Group. The purpose of the group is to assist lawyers who receive calls from firms offering to handle Supreme Court cases, to develop a coherent strategy for Supreme Court intervention in immigration cases, and to plan strategies for effective presentation of relevant issues when a case is taken up by the Supreme Court. You can reach the group at clearinghouse@immcouncil.org.

Here are some basic steps that the working group follows:

First: does a client with a losing circuit case have other options? Sometimes, there is another option, for example, through consular processing or a U visa. The lawyer who calls offering to take your case to the Supreme Court probably isn’t interested in those other options. But other immigration lawyers might be able to help you sort them out. In addition, sometimes, resolution of the issue that makes your case attractive to the Supreme Court lawyers may not really help your client. Again, immigration lawyers can assist in sorting that out.

Second: is the client’s case the best vehicle for presenting the issue? There are many ways of preserving a client’s ability to benefit from a Supreme Court decision, even if another case is the one that is heard by the Supreme Court. For example, you can seek rehearing or an extension of time while other cases so forward. The key is to figure out which is the best case to go forward.

Third: if it makes sense to seek Supreme Court review, who will do the best job? It is important to look for lawyers who will work with immigration experts and who will be as interested in a good result through settlement or agency interpretation as they are in a merits argument in the Supreme Court.

Fourth: if it makes sense to go to the Supreme Court, who can take on the work of ensuring a good set of amicus briefs that will present the issues? These briefs take time to write and it is important to ensure that each serves a discrete purpose. Otherwise, there is a danger of briefs that are at cross-purposes or simply do not get read.

Finally: what is the plan once there is a decision? The lawyers calling to take on the case are probably not thinking about the possible administrative and legislative fallout from a decision. But every Supreme Court case has the potential to set off agency action or legislative proposals. As an advocacy community, we need to be prepared for these consequences.

All said, the lawyers offering you free services may be very talented and have much to contribute. But think carefully about what is being offered before you sign on the dotted line. And give the advocates with the Supreme Court Immigration Law Working Group a chance to provide you with some advice as you negotiate this terrain.

– guest blogging by Nancy Morawetz, Professor of Clinical Law, New York University School of Law. Nancy coordinates the Supreme Court Immigration Law Working Group.