Trials and Immigrations
Rafael Maldonado came to the United States from Mexico to attend high school in Oxnard, California, in 1985. He received a temporary green card in 1990 when he married an American woman, but his card expired in 1992, and he divorced a year later. Maldonado was afraid that he might be deportable, but he didn't have money for a lawyer. Finally, in 1997, on the advice of a friend, Maldonado went to see a popular immigration attorney, Dan Boyle -- but it turned out that Boyle was on the verge of being suspended from the bar because he had misrepresented several clients. His practice had recently been purchased by Brandon Marinoff, and Marinoff assured Maldonado that he was the best litigator the state of Colorado had ever seen. Maldonado hadn't been that impressed with Dan Boyle, anyway -- he thought Boyle was a money man, but Marinoff seemed "hungry for success" and would fight hard for him.
Marinoff charged him a straight fee of $2,100 to handle the matter. It seemed like a lot of money to Maldonado, but he figured it was better to pay up than to spend the rest of his life in Mexico.
He paid Marinoff's office an initial $1,000, and Marinoff told him not to worry. A year went by, and Maldonado says Marinoff never asked him to produce any paperwork explaining his situation. Other than calls from Marinoff's office asking for the rest of the money, Maldonado says he had little contact with his attorney. Though Marinoff dealt with a largely Spanish-speaking clientele, the lawyer didn't speak Spanish and instead relied on clerks and secretaries to translate, Maldonado says. By September 1998, he'd had enough. He went to Marinoff's office and asked him, "What am I paying you for if I don't see any evidence you're trying?"
By the second week of September, Maldonado was finally able to meet with an Immigration and Naturalization Service attorney -- but he says Marinoff had prepared him only a few days beforehand and then showed up late to the meeting. The INS erroneously believed that Maldonado had previously been deported, he says, and Marinoff didn't try to correct the error. "He had no clue what the INS thought of me," Maldonado says. "He never bothered himself to look up my file."
Maldonado remembers that the INS attorney looked at his file quickly, then closed it and said she wasn't going to deal with the matter that day because Marinoff wasn't prepared.
Maldonado had three months to get his paperwork in order; he left Marinoff and found another attorney who was able to resolve his problems. Maldonado is now a lawful permanent resident, working as a supervisor at EchoStar satellite company, but he believes he was close to being deported, and he describes himself as "embarrassed" by Marinoff's representation. "Marinoff's shortcomings put my freedom in jeopardy."
Marinoff refuses to speak about representing Maldonado. Beyond that, he says, "my response is, I don't want to talk about clients or former clients." Attorney-client privilege does, in fact, inhibit a lawyer's ability to freely discuss the specifics of his representation of a client. Besides, Marinoff points out, every attorney has a few disgruntled clients.
And it's easy for illegal immigrants to turn into disgruntled clients when they're fighting deportation. Until 1996, most immigrants who had been living in the United States illegally could try to stay in the country by going through a process called "suspension of deportation." They had to prove they'd been living in the U.S. for at least seven years, had stayed out of trouble with the law and would suffer "extreme hardship" if they were deported.
But in 1996, a Congress bent on curbing illegal immigration passed controversial legislation known as the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA. It replaced the suspension standard with a tougher one called "cancellation of removal." Now, immigrants must show that they have lived in the U.S. for ten years and that the hardship -- which can now apply only to the applicant's parents or children, not the applicant himself -- must be "exceptional and extremely unusual." The law also enabled immigrants who had minor crimes on their records to be reclassified as "aggravated felons," denied hearings and tossed out of the country. Suddenly, a guilty plea on a DUI twelve years ago could be deemed grounds for deportation, immigration attorneys say. "I, in effect, become a judge," says INS district director Joe Greene, who oversees Colorado, Wyoming and Utah. "I can basically issue a final order of deportation without a hearing."
Since 1996, several members of Congress have proposed new bills to take some of the harsh sting out of IIRIRA. Colorado senator Wayne Allard, for example, has supported recent efforts to make it easier for immigrants to get specialized visas. Last year he voted for a bill that raised the number of visas available for technical workers, and this year he's behind a follow-up bill that would raise the number further. He also supports a proposed bill that would streamline the visa application process for agricultural workers.
But the bottom line is that it is still more difficult for people to enter the United States and get green cards than it was earlier this decade. Most immigrants receive green cards by being married or related to American citizens or lawful permanent residents, says John Good, a supervisory deportation officer with the INS; they can also obtain green cards through their employer or by receiving political asylum.
It is also more difficult for illegal immigrants to stay. The INS's most recent figures, from 1997, report about 45,000 illegal immigrants in Colorado, the majority having come from Mexico. (Greene says part of that increase has to do with California's passage of Proposition 187, the 1994 measure that barred undocumented immigrants from receiving public education and health services.) In fiscal year 1999, between 4,000 and 5,000 immigrants were involved in deportation proceedings through Greene's office. Of those, 3,000 were deported; the majority, about 1,800, were convicted criminals. While IIRIRA gave INS officials like Greene more tools to deal with criminal aliens, it also robbed them of discretionary powers to, for example, grant "indefinite voluntary departure," in which an immigrant agrees to leave the United States but has no timetable placed on that departure. So an elderly woman with terminal cancer could remain in the U.S. to die among family, or INS officials could keep informants in the country for as long as they wished. "[IIRIRA] was a mixed bag, from my point of view," says Greene.
Immigration attorneys take a more critical view. Jeanne Butterfield, the executive director of the American Immigration Lawyers Association, an organization of 6,000 attorneys nationally, describes IIRIRA as the "most restrictive and far-reaching legislation in decades. I'd say since the 1920s."
"It's 100 percent political strategy," adds local attorney and AILA member Ann Allott. "President Clinton is not processing legal immigration papers. They don't want to give anybody green cards. They don't want the political rhetoric. But they have to keep the back door open. There are no warm bodies left in this town to go to work. We're using illegal labor to keep the price of labor down."
"This IIRIRA stuff is ridiculous," says Marinoff, who was starting his immigration practice just after IIRIRA passed. "If this stuff were applied to American citizens, there'd be a civil war." The law, he says, is "draconian, unconstitutional and mean-spirited."
And in Marinoff's case, it's good for business.
In Denver, thousands of illegal immigrants work through deportation proceedings each year, and many of them work with one of Colorado's 79 AILA attorneys, who say that their specialty is not particularly lucrative. These lawyers fall into two camps. The first camp is cautious and conservative. When clients come knocking on their doors, attorneys politely turn them down and send them on their way.
Then there's the Brandon Marinoff camp. That camp, made up largely of Brandon Marinoff, is the one that fights. Marinoff says he doesn't back down from litigating cases against an unforgiving law. He'll tell you he stares IIRIRA in the face and finds a way to keep his clients living in America -- and that is what separates him from almost every other immigration attorney in Denver: The others would rather turn away potential clients than risk turning them in to the INS on the chance they could survive deportation proceedings. Jim Salvator, a supporter of Marinoff's who has his own reputation as a tough and aggressive lawyer, says this is the favored response of the American Immigration Lawyers Association: "You roll over and put your tail between your legs." The mantra of immigration attorneys, Marinoff says, is to not upset the status quo and the INS.
"I'm very aggressive," Marinoff says of rumors circulating through Denver's small community of immigration attorneys that the INS is investigating his practice. "I've gotten a lot of people out of their custody. As a result, we're constantly under their scrutiny."
Marinoff's critics say he overcharges his clients and often comes to court unprepared.
"Everyone knows he's a bad apple," says immigration attorney Laura Lichter. "I had someone who had previously discussed cancellation with Mr. Marinoff's office, and he was excited about applying for it. But there was nothing unique and compelling about his case. In my judgment, no matter how hard I fought for him, he didn't have a high enough chance of success. I spent a half an hour talking him out of it."
Marinoff sees such attorneys as cowards.
"I brought the first cancellation cases to Denver," says Marinoff. "When I did that, I won them. And I kept winning them." He says his success rate in cancellation cases is about 50 percent, that he has won fifteen to twenty such cases and lost the same number.
A search of 38 recent cancellation cases Marinoff has handled at the U.S. Immigration Court revealed that only ten clients were granted relief from deportation (one client was granted asylum, and nine were granted cancellation of removal). Most of his clients were either ordered removed from the United States or given voluntary departure -- a less serious order of removal in which an immigrant agrees to leave the U.S. by a set date. One case is still pending; three are on appeal to the Board of Immigration Appeals in Washington, D.C., which sometimes reverses cancellation-of-removal cases. And sometimes a "voluntary departure" may be considered a victory, since an immigrant's record doesn't show that he was ordered deported, and he still has an opportunity to return to the States one day.
"[Marinoff is] viewed as an attorney who tends to file things at the last minute and always asks for a continuance," says Alec Revelle, administrator of Denver's immigration court, who handles about 5,000 immigration cases every year. "Things happen, but when it happens with a fair amount of frequency, it raises a flag."
"I'm not one of their most popular people," Marinoff admits.
Before entering the immigration arena, the 37-year-old Marinoff spent five years as a prosecutor with the Weld County District Attorney's Office, where he handled numerous drug cases. But then he got the bug for private practice and bought Boyle's immigration practice in June 1997. The two worked together for a few months before Boyle was suspended for two years in August 1997 for "engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and being convicted of aiding and abetting aliens in obtaining entry into United States by willful misleading representation."
The published opinion of the Colorado Supreme Court indicates that Boyle committed transgressions with five clients. In 1991 he advised a British couple moving to the U.S. to tell immigration officials that they were visitors and not mention their intentions of working here. In 1987, a Syrian immigrant filed a petition for asylum, but Boyle, the court ruled, failed to adequately prepare for the hearing and failed to present readily available evidence supporting the asylum petition. In 1992, Boyle failed three times to correctly prepare a labor certification application for an Israeli immigrant who worked at a Jewish ministry in Aspen; that same year, he completed an application for a Brazilian client that stated his visa had expired when Boyle knew that his client had no visa. Finally, he failed to competently represent an Albanian immigrant applying for asylum, and the immigrant was deported. Boyle, who declined to speak with Westword, was ordered to pay restitution to two clients before he could be reinstated.
That mess was Marinoff's introduction to the world of immigration law, one he admits he knew little about. But in just a few years, Marinoff says, his practice has grown from a few hundred clients to roughly 1,200. And it's a particularly vulnerable group of clients: Many are here illegally, are sometimes uneducated, don't speak English or have committed crimes.
Moises Capule, for example, sits in a room at the Wackenhut Detention Center, the lockup for INS detainees, and wonders how he got there.
In February 1996, Capule came to Colorado from the Philippines. He found a job as a security screener at Denver International Airport and later found an American wife, his supervisor. The couple lived together for half a year, then married in December 1996. Wedded bliss was short, however. Capule discovered that his wife was cheating on him, so he moved out of their Westminster home in July 1997.
Things got worse when Capule's wife accused him of molesting her daughter. She took her complaints to the police, the police filed charges, and Capule went looking for a lawyer.
A friend told him about Dan Boyle. But Boyle was about to be suspended and referred Capule to Marinoff, who charged Capule $5,000 to handle the molestation defense. Capule paid him, and the charges were eventually dropped.
But Capule's wife was dissolving their marriage, and immigrants like Capule count on their spouses to file petitions sponsoring them for green cards. Without a marriage, Capule might be without a petition -- and he would suddenly be illegal. Marinoff offered to fight back by filing a "battered spouse" suit against Capule's wife, a measure designed to protect immigrants who are dependent on their spouses from being abused. Capule agreed.
Cost: another $5,000.
Capule began making payments that eventually totaled $2,500, but he says Marinoff never filed the suit. "Every time I asked about the case, he said he's going to file," Capule says.
But Capule wasn't wearing an orange jumpsuit yet. Things really started to go bad for him at the end of the 1998, when he left the country for a month to visit his mother, who was ill. And unless an immigrant has received an exemption from the government, leaving the country causes him to forfeit his green-card application. Capule says Marinoff obtained this exemption but failed to tell him that it meant the loss of certain rights, including the right to bail out of jail should he find himself there.
But Marinoff says his clients always know where they stand. "I inform all my clients so clearly, so specifically, that that's not even an issue," he says.
Capule made the trip anyway. Then his wife withdrew her petition to sponsor his green card. Yet, Capule claims, Marinoff sent him in to renew his work permit, even though without the petition and with his marriage on the rocks, he was virtually ineligible. At the work-permit review, INS inspectors asked Capule if he was living with his wife. Capule said they had split back in 1997.
Soon afterward, he was in custody -- and because of his trip to the Philippines, he was unable to bond out -- and was facing deportation. He says Marinoff was asking $3,000 to clean up the latest mess. Capule's new girlfriend, a bank employee, shelled out $1,300 -- bringing the grand total up to $8,800 -- for Marinoff.
Marinoff did nothing, Capule says. "For one month, he didn't call me, didn't talk to me. It was like he didn't care."
"I have a lot to say, but I can't say a word," Marinoff says of Capule's case, again citing attorney-client confidentiality. "Whatever problems he has have nothing to do with any representation he's had."
Marinoff has also run afoul of trial attorneys and a judge at the INS for filing documents and exhibits late and for frequently requesting continuances that drag cases on and on. On August 10, INS attorney Dani Lisa Page appeared in court twice in one day, first to handle a case by Marinoff, then to handle a case brought by his partner, Lance Wiessenberger. In Marinoff's case, documents from his clients were filed with the court only four days before a hearing; the court requests that documents be filed fifteen days ahead of time.
When Judge David Cordova asked Marinoff what the problem was, Marinoff responded:
"Your Honor, we had trouble getting all the exhibits together within the fifteen days. But we got them in as early as we can, and I apologize that we couldn't get it in on time, but some of it was out of our hands."
Page was not convinced. She blasted Marinoff's documents for being incomplete as well as late. "This counsel has been representing these folks for a year now. There's been no progress as to why it's taken a year to get documents."
Nevertheless, Cordova agreed to hold the case over until next March. That same afternoon, Page was back in Cordova's courtroom, this time against Wiessenberger. The previous January, Wiessenberger had asked Cordova for a continuance, and when an obviously irritated judge asked him why he should consent, Wiessenberger responded, "I don't have a specific, consuming reason to give you, other than [the clients] live far away and we've had some things we've been dealing with with them...Call it attorney preparation or what have you, we just haven't had enough time to tie this thing together in a nice, neat bow."
Cordova reluctantly agreed to continue the case, telling the court, "I won't continue it again."
Wiessenberger had filed documents the day of the hearing, which meant Page had no time to review them. "The Service is opposed to the documents being submitted into evidence," Page told Cordova.
"Well, I was going to anticipate Ms. Page's position and apologize, as I've done in the past," Wiessenberger answered. "This happens. As you know, it's not intentional...I frankly am not ready to proceed on this case myself. I have not reviewed the documents." Again he requested a continuance.
"It seems inappropriate that the courts should continue to condone the behavior that happens from this particular office," Page responded. "The entire day has been set aside for one office. The entire day has been blown away because the documents have not been submitted correctly."
Cordova then chastised Wiessenberger: "Let me tell you what the problem is, and the problem's beginning to resurrect itself all the time...This hearing has been continued on two prior occasions for purposes of getting ready, and that bothers me."
Page said she wanted Wiessenberger's clients questioned to see whether the delay in documents was their fault or their attorney's.
"That puts me in a terrible position," Wiessenberger argued. "If Ms. Page's intention here is just to cast a shadow of doubt on what is the guilty party..."
But the judge cut him off and addressed his clients: "I'm convening this matter over one more time, and this is it. So if you people don't have your act together next time, I don't care. We're going to hearing."
Marinoff says that late documents are a reality -- INS attorneys file them late, too, he says -- but Page is the only attorney who complains. He says that the exhibits she complained about would have taken only a few minutes to read through and that other attorneys in the office don't mind getting them the day of a hearing. And, he says, the numerous continuances aren't a matter of incompetence or a lack of preparation. "Sometimes it's in the client's best interest to delay the case if you have reasonable grounds.
"I can't be doing bad things," he insists, adding that rival lawyers who criticize him are jealous. "The 200 cases that guy had when I took over his practice were the envy of the immigration community. What did they think? The 200 clients just die?
"There are probably some immigration attorneys that probably would say to you, 'He's a bad guy,'" he continues. "These folks wouldn't have the guts to try a cancellation of removal. Ninety-nine percent wouldn't do something like that. They don't have the skills."
Marinoff says that's because immigration attorneys mainly are used to doing administrative law, such as dealing with documents and paperwork and securing green cards for professionals immigrating to the United States -- not preventing uneducated working-class illegals from being deported. Unlike him, a former prosecutor, they're not comfortable in court.
He says he refuses seven out of every ten cancellation cases that pass his desk because he doesn't think he can win them. But Marinoff may also be the only immigration attorney in town who regularly surrenders his clients to the INS. Usually, when illegal immigrants are arrested, deportation proceedings begin; if an immigrant is lucky enough to get a lawyer, the lawyer may file a cancellation of removal as a defensive, last-ditch effort. With Marinoff, clients willingly turn themselves in. If Marinoff is lucky, his critics say, his clients can get a voluntary departure. "He can get them a work permit," says Lichter. "He can buy them literally two to three years, on average, for the appeal to run its course. I don't think he's being fully clear with people. People are suckered into this. A lot of people would be better laying low."
Even Jim Salvator won't turn in his clients to the INS. "I think it's too risky," he says. Yet Salvator doesn't criticize Marinoff for taking that risk. "As long as they know the risk is there, I can't say he's done anything ethically wrong."
Marinoff says it's not possible for his clients to enter into deportation proceedings without their knowledge, that the forms they sign are very clear. "At that moment, they know they're in proceedings."
Not everyone agrees. Eleni Sarris, executive director of the Denver-based Justice Information Center, an organization that provides translators for immigrants in court proceedings, says one former Marinoff client she encountered "was unaware he was in deportation proceedings. People would come in and seem somewhat oblivious to their predicament."
And on top of that, there's the matter of money. "He charges a lot. That's his Achilles' heel," says Salvator.
"I don't know what other people charge," Marinoff says. "I'm definitely not cheap." But he says he does more for clients than other lawyers. For instance, when clients with minor crimes on their records (like a DUI charge) come before him as "aggravated felons" under IIRIRA, Marinoff often will try to file a motion with the jurisdiction where the guilty plea was made to have it overturned. "I'm not ashamed of what I charge," he says. "I have a right to charge what I charge. People don't have to hire me. Isn't it analogous to a doctor who's a specialist?"
Joe Sosa is one of Marinoff's satisfied customers. Sosa and his wife had been in the United States illegally for more than a dozen years; they had lived in California and moved to Colorado in 1991 when Sosa's company relocated. In 1996, Sosa's son was born with a serious heart condition that required medicine and physician care not readily found in Sosa's native Guatemala. A year later, he acted. "We wanted to do things right," says Sosa. "We were going to find a way to get our legal documents here in order."
Sosa called lawyers from the Yellow Pages, but none would meet him in person. "Everybody else was suggesting maybe I needed to marry a U.S. citizen." Dan Boyle did agree to meet him. "They felt they could do well with it," says Sosa, adding that Boyle warned him of the risks. But like Maldonado, Sosa arrived as Boyle was stepping down, so Marinoff took over.
They filed the paperwork, and then Sosa received a letter from the INS ordering him to turn himself in. Sosa says he was very nervous -- and the fact that Marinoff was late to the hearing didn't help. Sosa says he had to be proactive with Marinoff. He had to go to the attorney's office when he had questions rather than just ask them over the phone. And he says that Marinoff's staff was sometimes rude to him, treating his questions and concerns indifferently. But Sosa's cancellation of removal was granted in August.
"We are talking about the life of my kid," Sosa says. "There's nothing that can pay for that."
Sosa says Marinoff was "very knowledgeable. "When he didn't have an answer, he would say, 'Let me find out for you.' I appreciated that. I feel that he put an effort into it."
Sam Kalam, who came to America from Bangladesh in 1981, is similarly pleased with Marinoff's representation. Kalam's son was born with a bad lung, and he contacted Marinoff to represent him in 1997. "He said, 'I am new in the arena. Give me a chance; I'll fight for you for free.'" They settled on a fee of $2,000, and last year Kalam was granted cancellation of removal. "I'm very, very happy with his service and what he did for me. He did put up a very good fight."
But Sosa and Kalam had sick children, which increased their chances of fitting IIRIRA's "exceptional and extremely unusual" definition of hardship to avoid deportation.
Not so lucky was M. Arif, a Pakistani with a degree in finance and no children. He hired Boyle several years ago to handle his application for political asylum. When that was denied last July, Arif turned to Marinoff to file an appeal. Arif liked Boyle and was hoping his replacement would be equally solid. He says he paid Marinoff $2,000, but the lawyer failed to show up for a meeting at the INS. Arif was placed in custody, and only a last-minute visit by Wiessenberger got him out.
"I felt like he really played with me," Arif says. "The night before, he tells me he's ready to fight everyone, and the next day he doesn't show up."
But Marinoff does show up at U.S. District Court on October 22 at eight in the morning. Boulder businesswoman Lisa Fraser's German boyfriend, Elmar Wilmes, a developer of recycling technologies, has overstayed his visa and was nabbed two weeks earlier by INS agents. Wilmes says he thought he had a multiple-entry visa instead of a temporary one, but what he thought is irrelevant. In two hours he will be on a plane to Germany -- unless Marinoff can intercede.
Marinoff is pacing up and down a hallway, on his cell phone with a U.S. Attorney. The animated conversation is mostly legal minutiae, but it's punctuated with Marinoff's casually bold assertion: "This is what I do every day..."
A moment later: "I do this every single day..."
Then: "I've handled twenty or thirty of these cases..."
As Marinoff spars on the phone, Fraser tries to keep her composure. "We wanted to get married New Year's Eve," she says, tears welling up. Instead she married Wilmes in jail, to prove to the INS that their relationship is not a sham, which is the only thing that could keep Wilmes from flying the friendly skies. She could move to Germany, but she has a daughter in high school here. She could try to get her boyfriend back by working through the American Consulate, but who knows whether that will work? Marinoff has filed a motion, and a hearing is hastily scheduled for 9 a.m. with U.S. District Judge John Kane, who is apparently the only available judge, since many of the others are away at a conference. But Kane doesn't have time to hear the case, so he grants Marinoff's temporary restraining order to prevent Wilmes from being deported -- for 72 hours. Then Marinoff must appear before the judge assigned to the case, Edward Nottingham, and make his stand.
It goes without saying that no other lawyer in town has the skills to be here right now. At least that's what Marinoff says. "They would have said to Elmar, 'You're a visa overstayer. There's nothing we can do for you. Go back.' I'm going to try and do something."
"When you stop an airplane..." Marinoff begins, then loses the thought. "What you saw today is an accomplishment."
Seventy-two hours later, the judge denies Marinoff's motion, claiming the court doesn't have jurisdiction. Marinoff files an appeal the following day with the Tenth Circuit Court of Appeals. For the moment, Wilmes remains in the country.