Zealous Advocacy: Pushing Against the Borders in Immigration Litigation

This article examines the forces that undermine zealous advocacy in the context of immigration court, and connects the context-specific issue of immigration defense to debates in the ethics literature about the possible justifications for zealous advocacy. As state bar rules and legal cultures and sub-cultures de-emphasize or remove the duty of zealousness, zealousness becomes increasingly counter-cultural. The article explores those trends, and shows (drawing on existing criminal defense ethical literature) why zealousness is justified in the adversarial and consequential immigration context. The article examines why a broadly understood and well-elaborated standard of zealous advocacy for immigration lawyers would be useful, and shows how it would affect important decisions that are made by immigration lawyers throughout the course of litigation. The article also exposes the untenable dilemmas pitting duties of confidentiality against duties to the court, and frames the ways in which zealousness needs to guide decision-making when those dilemmas arise