Hard Work Out West

Roy B. Ferguson and his attorney wife, Pene, started their careers in Houston, but in 1999, they moved almost 600 miles to one of the state’s least-populated regions, a place with high-desert vistas of the Davis Mountains and Big Bend where both of them have family roots. Their law office in Marfa, which they opened years before the tiny town became a tourist destination, has been the only full-time practice in Presidio County for more than 13 years. In 2012, Ferguson was elected judge of the 394th Judicial District, which encompasses Brewster, Culberson, Jeff Davis, Hudspeth, and Presidio counties and covers more of the U.S.-Mexico border than any other district in Texas. Here Ferguson talks about shooting it straight, staying on the judge’s good side, and letting clients cry.

This is the fourth installment in a series of blogs on the lives and careers of small-town lawyers. For more, go to texasbar.com/smalltown.


photo by Carolyn Miller/Fort Davis, TX

The way to make it.

The skills and traits most helpful for lawyers seeking to succeed in the small-town setting are, I think, a strong work ethic, personal integrity, and empathy. Lawyers are retained based on word-of-mouth. Your reputation—personal and professional—determines your level of success. The community must trust you not only to work hard for them but also to treat them fairly. Because everyone knows where you are at all times—they recognize your car, for example—you must put in the hours at the office. You must act professionally, both in the courtroom and at the local bar. Stories spread quickly. If you act like a buffoon or fall asleep in court even one time, your business will suffer. If you get drunk in public, or flirt openly with a married woman, your clientele will quietly taper off.

In rural areas, you get the clients that you earn. If you are seen as abusive or “Rambo,” you will get clients who are looking to fight or hurt the other side. If you are perceived as unscrupulous, you will get clients who expect you to do anything to win. If you don’t pay your bills, then you will get clients who never intend to pay you for your services.

The relationship with your district judge is crucial. Unlike in areas where you might only see a particular judge once every few years, you will see a rural judge in every case you take. If you lie, he or she is likely to remember it for a long time.

The listening and the learning.

My goal as a lawyer was that every person who came in to see me would feel better when they left. My legal assistants half-joked that not a day went by that someone didn’t cry in my conference room. Be patient, and let people talk. I typically spent three hours a day listening to people whom I did not represent as they unloaded their problems and asked for reassurance.

It was not uncommon to spend an hour with an elderly person who received a spam email, telling her that she had won a nonexistent lottery, or explaining to someone that a bill collector could not have them arrested or take their house no matter what they claimed on the phone. To succeed as a community lawyer, you must dedicate yourself to the needs of the community. It is emotionally taxing on you, but you can and will make a real difference in their lives.

Family law and real estate are the most common legal needs of citizens on the civil litigation side. Wills and probate are increasingly important. Criminal defense is also important in the 394th, which contains over 400 miles (20-plus percent) of the U.S.-Mexico border. But you will practice in legal areas outside of your comfort zone. Take cases that stretch your skills, so you don’t get complacent. Hit the books. You must be conversant in every area of general practice, and you must be able to assure clients that you will be the most educated person in the room when their case goes to court.

Don’t pretend to know it all. They don’t expect you to know everything, but they expect you to be able to find out. “I don't know as we sit here today, but I’ll find out and then we’ll both know,” is a powerful phrase. And you must not promise what you cannot produce. Give them a realistic expectation of outcome, and then if they demand better, send them to a competitor.

The misconceptions.

The hours are long, and clients have the same expectations regardless of the stakes. Remember, $150,000 to a Dallas corporation creates less of an impact than $10,000 to a small-town resident. To many of your clients, the money they pay you is almost impossible to absorb. They will mortgage their lives and borrow from everyone they know to pay your $5,000 retainer, and they will be shocked and suspicious when it's gone in 60 days. They will put their families, their businesses, and their homes in your hands. It is a great responsibility, and the weight of it can be overwhelming if you are not prepared for it.

Participation and visibility is crucial, but it must be sincere. Rural communities want someone who shoots straight and works hard. You will be given countless opportunities to help those in need and the community at large. In small towns, everyone must do everything. People who join civic organizations do so because they are devoted to the cause. Do not join charitable organizations for marketing purposes. Insincerity will be recognized, and you will pay the price.

Attending local community meetings is crucial, however, as it shows you are truly interested in the community. You don’t need to take the dias or dominate the discussion. Just be there and pay attention. Do not align yourself politically with the people or persons in power in the hopes of speeding your ascension. Today’s leaders are tomorrow’s pariahs. Local power figures come and go, but you want your professional success to last a lifetime.

Meet everyone you can. Walk everywhere you go. A smile and a wave, or a quick friendly word at the post office, is fantastic marketing. The more comfortable people are with you, the more likely they are to tell you their troubles and ask for your advice.

The changing numbers.

The 394th makes up an area larger than West Virginia. In two of these counties, excluding the county attorney, there are no lawyers in local private practice. In another, there is one lawyer in full-time local private practice other than the county attorney. In the fourth, there are a couple of part-time practices, but no full-time law firms. In the past few years, we have had an influx of young attorneys into Alpine, the most populous county seat, who travel among the counties. And lawyers from Odessa and El Paso travel the two hours for cases that justify the cost. But for the day-to-day needs of local rural residents, the options are few.

There are not sufficient numbers of attorneys in the area. And in these rural ranching or border communities, they usually can't afford to bring out-of-town lawyers in. They either do their best with whatever they can find, or they simply don't assert their rights.

Being a lawyer in a rural setting is practicing law the way it was meant to be done. You care for the community, and fight for justice. You make a real and personal difference in people's lives. And in return, you are financially rewarded and personally fulfilled beyond your hopes or expectations, in a way often absent from city practice. Moving to West Texas was one of the best decisions I ever made, and in over 15 years, I have never once looked back on that decision with regret. I encourage each lawyer to examine their goals - both personal and professional - to determine whether he or she is on the career path toward personal fulfillment. You don't have to wait until retirement age to move to a small town. Go where you want to be. Work hard, and success will follow.

A Texas attorney's perspective on the unaccompanied minor crisis along the South Texas border

Linda A. Brandmiller, chair of the State Bar of Texas Committee on Laws Related to Immigration and Nationality and director of ASI, Asociacion de Servicios Para el Inmigrante, recently answered questions via email from the Texas Bar Journal about the current humanitarian crisis on the Texas-Mexico border. Any opinions featured in this article do not represent the position or an official policy of the State Bar of Texas.

 

The State Bar Committee on Immigration and Nationality Issues visited the South Texas border during this past year and toured some of the immigrant facilities and shelters. How would you describe what you experienced?

We observed the system from both the enforcement perspective (U.S. Customs and Border Protection) as well as the unaccompanied minors perspective (the South Texas Pro Bono Asylum Representation Project receives indirect federal funding to assist the children caught in the immigration system at the border and without parents). Our visit in the fall of 2013 was at a time when border crossings and apprehensions are lower due to weather conditions and other influencing factors. We witnessed firsthand the extensive technology being utilized by CBP officials, including cameras, night vision goggles, and heat sensors, to locate people in the brush along the border. We also saw the detention facility, including the helera (“ice box,” a nickname stemming from its cold temperatures) where detainees are interviewed and processed. We took a tour of the border fence that weaves in and out along the border with vast spaces separating it and at times a significant distance inland from the actual border with Mexico. Lastly, we visited the La Posada Providencia shelter to witness its humanitarian efforts.

How is the current humanitarian crisis in the Rio Grande Valley different from other cases of undocumented immigration in the U.S.?

The Office of Refugee Resettlement is not efficiently moving unaccompanied minors through the system to be reunified with family in the U.S., which is what current law requires the government to do when dealing with non-Mexican children whose court cases are awaiting completion (we have a separate agreement with Mexico that requires turning children over to the Desarollo Integral de la Familia after screening them for being victims of crime and/or human trafficking). Though ORR, in 2012, opened emergency shelters in San Antonio after the number of unaccompanied immigrants doubled that summer from the year before (from about 6,700 to 13,600), ORR processed twice as many children in 2013 as in 2012 without any additional shelters or systems necessary, and this year’s numbers were projected and planned for as early as the winter of 2013—so they are not a surprise. The agency is inconsistent in its “requirements” for reunification, leading to some children being unnecessarily detained months after having determined where the family members are in the U.S.

This has effectively created a funnel that directly impacts the “warehousing” of these minors in emergency facilities. The majority (85 percent) of the unaccompanied minors entering the U.S. have family here to reunify with while their cases are pending so it becomes a question of processing them rather then keeping them in long-term detention. That is not the situation for the adult immigrant—a Congressional directive requires that 34,000 immigrant detention beds be filled every day, despite that many have no criminal history and have equities such as having U.S. citizen children or years living in the U.S. and legitimately could be released to their families until their cases are completed so that there is a final resolution.

What legal options are available to the immigrants for permanently staying in the U.S. under current law?

The most well known relief is asylum, which might be an option if the immigrant is afraid to return to their country for fear of persecution and they fall into one of the “protected” classes of race, religion, political opinion, nationality, or another particular social group. A U visa is an option if the immigrant is a victim of crime in the U.S, and a T visa is available for those immigrants who are victims of human trafficking. Children have the additional legal remedy of obtaining status as a special immigrant juvenile, which blends both state and immigration laws for minors who have been abused, abandoned, or neglected and cannot reunify with at least one parent.

What are the legal concerns for these immigrants?

The most pressing concern of the recently arriving immigrant is survival. They are confused by officers that drill them with questions and overwhelmed by a system that they don’t understand. Many are fleeing life-threatening violence and abject poverty. In fighting to remain in the U.S., whether detained or released, the primary concern of the immigrant is finding an affordable, honest, and trustworthy attorney who will listen to their story and assist them to stay in this country if they qualify for a legal remedy.

Many of these children and adult immigrants will eventually go before an immigration judge to make a case to remain in the U.S. Are they entitled to legal representation?

Perhaps “entitled” is the wrong word since they can certainly hire an attorney to represent them—but at no cost to the government. It is particularly disconcerting to see children sitting alone at the table in front of the judge, attempting to defend themselves against a government trial attorney. Although some nonprofit agencies get federal funding to assist with legal orientation programs, they are often severely restricted in their abilities to provide direct representation. To that end, in an effort to provide some assistance but not officially sign on to represent the child, there was a “friend of the court” model created by some, which State Bar Ethics Opinion 628 clarifies does create an attorney-client relationship as a result of the age, language, and likely perception of the child. Recently, House democrats introduced the Vulnerable Immigrant Voice Act of 2014 (HR 4936) to provide the same legal counsel for unaccompanied minors and mentally challenged individuals during immigration proceedings that current laws provide to criminals.

What is the current state of the immigration court system charged with handling this situation? Why is there such a backlog?

The immigration courts have not directly been affected by the increased number of immigrants apprehended at the border and will not be affected for some time due to the number of people already in system along with inefficiencies. The immigration court backlog is influenced by myriad factors, including judge vacancies that have not been filled, inefficiencies in docketing, lack of legal counsel at the start of a case, and length of time to defend various legal remedies.

There is a 90-day delay in issuing the Notice to Appear, which actually initiates the court proceedings with the expectation that the immigration court in the jurisdiction where the immigrant is residing will be the court that will hear the case. In that way, there is no expectation that the immigration courts along the border will be disproportionately impacted by the increased apprehensions. (And the current average length of time between the issuance of the NTA and the first court hearing is approximately 577 days.) Both children and adults are being moved around the country and are not remaining on the border. What you are seeing in these photos of children with silver blankets are at border patrol stations; they are not staying at these facilities. In Texas, immigrants are being detained around the state, including in Houston, Taylor, Waco, Amarillo, San Antonio, as well as some border towns.

Is there a way for Texas attorneys to help the immigrants through volunteering their legal advice or to help the state deal with the crisis?

Yes, even Texas attorneys who do not practice immigration law have a role to play, especially those who practice family law and criminal law—the two areas with the most overlap in immigration cases.There are many immigration attorneys as well as nonprofit agencies willing to mentor attorneys through these cases. Though access to detained children is strictly regulated, once released, they and their families are desperate for legal assistance. Attorneys can check with the U.S. Department of Justice’s Executive Office for Immigration Review for a list of free and low-cost service providers by state and city to narrow down the search for attorneys and programs already serving this population in their community [justice.gov/eoir/legalrepresentation.htm]. The Laws Related to Immigration and Nationality Committee of the State Bar of Texas stands ready to assist any attorney interested in helping the immigrant population.