My border practice is probably the weirdest version of practicing law that exists. I practice all kinds of employment-based immigration, but none is quite as unusual and satisfying as accompanying my Canadian clients to the border to apply for admission to the U.S. to work temporarily. Some cases are straightforward, but many, if not most, of the cases I take to the border are for people who have previously been refused entry at other border crossings.These cases are time-intensive. When a call comes in for me to take one of them, I feel like a dancer starting her number. The whole process, from the first phone call to the sound of the CBP officer's stamp clicking its approval into my client's passport, is a series of occasions during which the spoken word becomes a thick mental medium in which decisions are made.
I make the first decision: the decision of whether to take the case. That choice is pivotal. Once I say yes, I have already seen the strategy, the path through the thicket, seen myself explaining it to an officer, hearing that approval stamp click in my brain. Once I commit to a case, there are no more choices I have to make.
Getting to that point takes time, lots of time. My clients who have been refused admission have endured a very emotionally traumatic experience. They had pinned their expectations on a US job and thought they were coming in to start work, only to be refused. Their entire livelihoods have been threatened. I start by reviewing the paperwork they submitted, and then I go straight to asking the client to recount to me, blow by blow, what happened when they walked into the CBP office, what the officer said, what they responded, etc. I lead them through an exercise of visualizing the scene and telling it like a novelist, word for word. I do this both because I can glean information about what the officer's problem was with the case, even if the client conveying it to me did not understand it, and because I think it's therapeutic for the client to recount the experience with the aim of strategically reshaping it-- of correcting something in the course of their lives that should have gone another way. It's like backing up time so that we can reverse an event that should not have occurred. But I have to be really convinced that it should not have occurred. If I am not convinced, I can't untie the knots of time properly to correct them.
The next decision is made by the officer: whether to approve or deny the case. Between my decision to take the case and the officer's decision on whether to approve the case, a couple of things happen. First, I write a new support letter for the employer to sign based on the conversations we have had. I work closely with the employer and the foreign national to make sure that everything said factually is accurate and consistent with what was said in previous letters, yet advances the theory of the case more effectively. Usually these letters go through numerous drafts by my suddenly very detail-oriented clients. I understand this response to a prior refusal and suffer it silently. EVERY previously refused client nitpicks obsessively at details. Second, I go over the finalized package of documents with the client in great detail. Third, I meet the client at the Duty Free Store on the Canadian side of the Peace Bridge to sit down and discuss the case again. I show them the application we're submitting and then I do a mock interview where I pretend to be a CBP officer and give them a hard time questioning them about their case. I make sure they make sense and that they don't talk about the facts of their case in a manner that will be confusing. I teach them how to answer questions directly (think: the opposite of the way politicians answer questions). I have used this advice so many times that I say it in the exact same words every time: "Answer any questions the officer asks you as briefly, honestly and accurately as possible. Do not guess what the officer is trying to ask you but answer the exact question. Let the officer lead the interview. He will have a line of questioning he wants to pursue and your job is to answer the questions only." It's amazing how many highly educated people are incapable of doing this. Some get it though -- usually the ones who are not overly impressed with themselves-- and I love them.
(The worst clients are the ones whose idealized version of themselves is so important to them that they cannot deviate from their own egotistical narrative about their abilities in order to realize what the officer's actual concerns are and how to address them. Their argument seems to be, "I'm so wonderful; how can you deny me?" I have to break these people down. It is painful.)
When we finally get to the CBP office, the officer, of course, makes the decision. I am pretty familiar with the officers that typically handle these cases in Buffalo, and I know their style. First of all, some will allow me to stand there for the entire adjudication while others will promptly ask me to sit down. Some officers blow hot and cold on this point. There is no right to attorney representation at the port of entry, so they do not have to allow me to stand there. But inevitably, if the officer is having a hard time making a decision (as is often the case with prior refusals), he or she will call me up to discuss the case. Then there are some officers who ask what the person is applying for and then ask you to sit down while they review the paperwork. Some of this group do so quickly while others labor over it. Some even approve cases without asking any further questions; this is weird. Then there is the very small group of very seasoned officers who start out by sizing up the situation through a few pointed questions. From this little cluster of questions I see that the officer has already honed in instinctively on the weak points in the case and is prodding it like a surgeon prods a tumor with his scalpel. These are the coolest officers; they smell a case like a dog.
I often feel like a stand-by interpreter for someone who speaks passable English. The officers speak in the language of the law and of their particular set of concerns and the client speaks in the language of his profession. They use two different sets of jargon. I try to teach the client immigration jargon well in advance of the interview with CBP so that they can speak the officer's language; this seems to work the best. I keep my mouth shut for the most part, until I see that there is a breakdown in language; that the officer and the client are speaking past each other and not catching the other's meaning. Then I jump in. But as I explain to the client beforehand, I don't explain things to the officer directly unless he asks me to do so. I just facilitate conversation, prompt the client to give the information that the officer is trying to elicit.
All in all, I only take a case with a prior refusal when I believe that the reason for denial was a communication failure. In order to get a better decision on the second (or third or fourth) try, I have to dissolve myself into a non-presence that silently facilitates a conversation. I try to be a medium to help conduct the flow of thoughts. I try to be perfectly ignored even as I'm shaping the event. It's a fun role to play.