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A 1996 immigration act is having the unintended effect of driving immigration lawyers away from certain cases. Some attorneys who once took cases involving the detention of immigrants are no longer willing to do so, according to lawyers in the field, although statistics are hard to come by. The result, they say, has been an upsurge in pro se litigants. That has some lawyers worried that defendants won’t have adequate counsel — and may make some bad case law. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act calls for the deportation of immigrants with criminal convictions. It requires detention pending proceedings and has caused the number of immigrants detained to swell to nearly 20,000. This includes those who have had the right to live in the United States but were convicted of crimes decades ago. The central problem is that bail, previously common for immigrants facing deportation, now is automatically denied under the statute. “The new immigration laws eliminated any discretion the [INS administrative] judges have, so you have to go to federal court to challenge it and get bail,” said Regis Fernandez, a Newark, N.J., immigration attorney. “A lot of immigration lawyers don’t have the experience in federal court, or their clients don’t have the money for a long, drawn-out case.” Assuming an attorney is willing to take on the challenge of federal court, the mandatory detention provision can still add another level of difficulty and expense. “You enter an appearance, and your client is 40 minutes away — just to meet face to face with a client can take hours,” said Carol Wolchok, director of the American Bar Association’s Center for Immigration Law and Representation. “Then clients are transferred at the pleasure of the INS, and they can be transferred not [just] within the state, but far across the country.” John Pinnix, first vice president of the American Immigration Lawyers Association (AILA) and a partner at Allen and Pinnix in Raleigh, N.C., said his firm no longer handles detention work. “Between Washington and Atlanta, I probably don’t have more than two or three attorneys to refer to for the detention work,” he said. Mitchell Wexler, chairman of the AILA’s Southern California chapter, said that compounding the problem of departures is the allure of business immigration law. “There’s a need for Spanish-speaking business immigration attorneys, and that’s a phenomenon that didn’t exist before,” he said. Immigrants represented themselves in five of 11 precedential cases that were decided by the Board of Immigration Appeals this year and posted on a Justice Department Web site. In the 10 previous cases, all of the respondents had lawyers. Judy Rabinovitz, a staff lawyer at the Immigrant Rights Project of the American Civil Liberties Union, said that trained lawyers are needed “not only to protect those individual detainees, but because these are complicated issues of first impression that need to be adequately briefed.” She said that her organization worries about pro se respondents’ preparation for cases. “Representation is critical to an adversarial system,” she said.

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