Judicial Thoughts on Immigration Matters in 2006 By: Nicole C. Dillard, Esq. 在2006年1月30日，我们参加了一项名为“Immigration Appeals and Judicial Review” 的移民讨论会议。这次会议主要是关于各界法律人士对目前美国移民情况讨论及意见。以下是这项会议的摘要。 On January 30, 2006 , members of Fan, Fitzpatrick, and Thompson LLP attended an immigration symposium entitled, “Immigration Appeals and Judicial Review.” This symposium provided insight to the inner thoughts of Judges (specifically from Board of Immigration Appeals (BIA), and Circuit Courts), law school professors, and trial attorneys from the Department of Justice, Office of Immigration Litigation (OIL) and other immigration law experts as to the current status of immigration law today. The symposium culminated with a Keynote Address from the Honorable John T. Noonan, Jr., Senior Judge of the United States Court of Appeals for the Ninth Circuit. Judge Noonan, whose legal brilliance and notoriety was compared to the likes of Judge Learned Hand (for you legal pundits) clearly articulated on the perception of immigrants by Americans and most notably by the American legal system. In his address, Judge Noonan, noted the ambivalence of Americans towards immigrants. On one hand, Americans do not want immigrants to take their jobs, but on the other hand, they realize that places such as hotels and restaurants cannot work without them. It is difficult to resolve the U.S. ’s issue of ambivalence as immigration law is designed to both keep immigrants out as well as to let them in. Judge Noonan asserts that lawyers are key factors in working out Immigration Law. Real lawyers help make the laws work. While blame can be laid upon Immigration Judges, foreign language interpreters and even the alien herself, it is the lawyer’s responsibility to fulfill his responsibility to the client. Despite the fact that are many people who claim to be an “immigration specialist” or in some communities, a notario, they are not lawyers and depending on the extent of their “practice” or counsel of clients, they are possibly engaging in the unauthorized practice of law. Therefore, while often mistaken, lawyers are not all fungible: meaning, a lawyer is not easily substituted while standing at the bench. Clients who personally retain lawyers (or have them otherwise appointed in criminal matters) expect their lawyer to take an interest in their legal matters, be an advocate on their behalf; thus, being somewhat irreplaceable on the spot. A client represented by counsel has sought out an ally who knows the law, knows your case and who can speak on your behalf. Judge Noonan further asserted that “real” lawyers not only advocate on behalf of their clients, but are not afraid to tell their clients that they are wrong. Moreover, “real” lawyers counsel their clients that, in some cases, it may not be beneficial for a client to seek the type of remedy they seek. Despite the fact that Judge Noonan may have appeared to come down on private attorneys, he also challenged the government (in this case, the Department of Justice) to allow their attorneys to exercise prosecutorial discretion. If Department of Justice attorneys were free to exercise prosecutorial discretion, they could change the face of immigration. Judge Noonan asserted that there are plenty of instances where matters were referred to the courts that did not need to be. But because a Department of Justice attorney working on behalf of the United States Citizenship and Immigration Service pursued a case, even in some cases with the presumption that the Immigration Judge would later grant the immigration benefit ultimately sought, the Immigration Courts, Board of Immigration Appeals, and ultimately the Federal Circuit Courts, would otherwise be less congested. Furthermore, attorneys for the Department of Justice have the authority to acknowledge mistakes made by the Immigration Judge, and the discretion NOT to prosecute the cases based on these mistakes. This too would limit the amount of cases presented at the appellate level, both within the Board of Immigration Appeals and at Court of Appeals with the Circuit courts. Judge Noonan noted that a colleague had once stated that the then Immigration and Nationality Service was the only agency that did not use prosecutorial discretion. Judge Noonan’s speech was, if anything, a reminder to lawyers, regardless of the side of the law we stand on, of the responsibility to the client (whomever it may be) and to the law. While we were reminded that we cannot enforce the law by avoiding it, both private and government attorneys were reminded that regardless of where they came from, our clients deserve our most zealous representation in more than name only. ______________________________________________________________________________ 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.Fan-Law.com CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: 626-799-3999 Fax: 626-799-9966 MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: 301-251-2636 Fax: 301-251-0313