A version of this article first appeared in the Side Bar journal for the Litigation…
A review of all I-864 enforcement cases filed in the federal court system shows that most claimants go to court without a lawyer. Out of all publicly available cases, 54% of plaintiffs tried to represent themselves.
Self-representation – also called “pro se” or “in pro per” representation – is extremely challenging. Successfully representing yourself requires not only knowledge of federal law, but also the complex procedural rules of federal courts.
Our review of federal cases shows that I-864 plaintiffs are more than five times more likely to represent themselves than other civil plaintiffs. Studies show that approximately 10% of plaintiffs are self-represented in the federal courts. With 54% of plaintiffs self-represented in I-864 cases, these individuals are far more likely to have no legal assistance.
Why do I-864 plaintiffs have such a hard time finding lawyers? Although it is hard to know for sure, we believe there are two main factors.
1 – SUBJECT MATTER EXPERTISE.
I-864 cases require a very uncommon combination of legal skills. First, the lawyer obviously needs to understand the law specific to the I-864. He or she needs to understand how a court will calculate the damages (money) that is due to a client. She also needs to know what does and does not qualify as a legitimate defense to liability. It is also very hard to do a good job in these cases without a good familiarity of U.S. immigration law generally.
Second, the lawyer has to understand how to prosecute a civil lawsuit. There are many strategic and procedural considerations to take into account.
The problem is that lots of law firms have knowledge of one of these areas, but not the other. Immigration lawyers may know immigration law backward and forward. But few immigration lawyers are experienced in adversarial civil litigation of this sort. Likewise, there are many general civil attorneys out there. But most of them have never even looked at the immigration statute in their professional lives.
So when most lawyers are approached in these cases, they simply don’t have the experience to take them on. Now, lawyers are sometimes willing to take the time to learn a new skill except that…
2 – MOST LAWYERS DON’T WANT TO WORK FOR FREE.
If you have a legal claim under the Form I-864, by definition you don’t have much money. (Your income has to have dipped below 125% of the Federal Poverty Guidelines). If you don’t have any money, how are you going to pay for a lawyer?
The answer is what’s called a “contingency fee” – the lawyer gets paid from what he wins for you in the case. That is how lawyers work in areas such as personal injury. It is also how we work here at Immigration Support Advocates.
Pretend that you are a lawyer who does contract litigation. A recent immigrant comes in the door. She wants you to work for three months to a year. She can’t pay you. You’ve never heard of the immigration thing that she’s talking about. There has never even been one of these cases in your part of the country.
Would you take that case, or say “no thanks, I’d rather not work for a year unless I know I’m going to get paid.”
In order for a law firm to take a contingency case, it has to be very, very confident that it is going to win. Law firms simply can’t afford to do huge amounts of unpaid work – that’s not the way it works. When Immigration Support Advocates takes on a new case, that’s our vote as a team that we believe that we’ll win our client’s case. Defense lawyers get paid no matter how bad of a job they do. We get paid for results.
It is our guess that this second factor is the real reason that I-864 claimants often cannot find good lawyers. That’s why our law firm ends up working with clients all over the country – because no one else will take their case. (And hopefully because they think we are the best law firm in the country for this work).
SELF-REPRESENTED I-864 LITIGANTS RUN INTO SERIOUS BARRIERS.
In another post, we will go into some of the specific legal problems that I-864 plaintiffs have faced in federal court.