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Q&A With Foster’s Robert Loughran

29 May

After serving on immigration committees and in government liaison roles for two decades, in 2014, Loughran was selected by Best Lawyers as Austin Immigration Law “Lawyer of the Year” and he has been regularly designated as a Texas “Super Lawyer” by Texas Monthly and one of the Best Lawyers in America. Loughran is admitted to practice before the U.S. District Court for the Southern District of Texas and Fifth Circuit, and is regularly invited to speak and publish on immigration issues.

Q: What is the most challenging case you have worked on and what made it challenging?

A: I handled a political asylum case in the decade between the Gulf Wars for an Iranian who was seeking to undermine the Iranian regime by spying for the Iraqi government. He clearly qualified for asylum, based on his manifested political beliefs and was in clear, personal danger. However, his ethnicity, religion and political activism created a situation where no immigration official would sign off on his release from detention. He was detained for three years. We had to overcome the immigration judge’s decision and the Board of Immigration Appeals, but we were successful in having the Fifth Circuit order the case reversed using much of the language from our brief. It was legally rewarding to have the Fifth Circuit force the BIA and court to our position, but it was even more rewarding to get the client out of detention and reunite him with his family.

Q: What aspects of your practice area are in need of reform and why?

A: Comprehensive immigration reform is desperately needed. The Senate passed a bill in June 2013 that was surprisingly well-developed and designed a fair immigration system that would benefit America for the next decade. However, the House of Representatives has refused to even discuss or debate immigration for the remainder of the Obama administration.

This is particularly troubling as we have between 10 million and 12 million individuals in the U.S. without any immigration status or with a year-to-year work authorization that does not allow them to fully integrate into American life and participate as eventual residents and citizens. With that many undocumented immigrants as a pillar of our current economy, bussing our tables, cleaning our hotel rooms, building our houses, picking our vegetables and paving our roads, we are living in a de facto apartheid society. Those without immigration status are relegated to a perpetual subservient class living in the shadows, avoiding police and other authority figures and afraid to assert their basic human rights.

Allowing this type of class division to continue for the last three decades and into the future on an indefinite basis is un-American, un-Christian and creates a class-based society which is contrary to the class mobility and meritocracy which makes our nation great.

Then there is the more mundane issue that the current immigration law was enacted in 1965, when most immigrants came to the U.S. by boat and is based on world concepts that would be quaint if they did not underpin the law under which we currently operate. The Senate recognized that the professional worker category needed to be dramatically expanded to meet the needs of our economy.

Currently, there is a lottery where only one in three petitions filed for needed workers is accepted for adjudication. Two-thirds of filed specialty-worker petitions exceed the quota and are returned, along with their substantial filing fees, to the employers that have documented a need for these degreed workers, primarily in technology-based professions. The need for specialty workers can be seen across industries as there are virtually no industries that do not require degreed professionals to leverage innovation. What has been allowed to continue year after year is a quota from a previous century whose limitation drives industry offshore.

There were also categories proposed in the bill passed by the Senate to expand immigration opportunities for innovators, entrepreneurs, inventors and others stimulating startup companies. The bill also sought to change the system from one focused on permanent immigration to one where work authorization and residency was available as needed. The century-old emphasis on family-based chain migration was reduced and the ability for industries to bring in workers to meet surge demands in rapidly evolving industries and agriculture was addressed. There was also a proposal to recapture the visas that have been wasted through annual governmental “mismanagement” of fiscal-year based quota numbers that has led to hundreds of thousands of “precious fruit” of quota numbers spoiling, unused each Oct. 1 decade after decade, because the system did not consume them in time.

All of these surprisingly well-developed ideas were allowed to expire as the Republican-controlled House of Representatives plays a run-out-the-clock strategy with the Obama administration.

Q: What is an important issue relevant to your practice area and why?

A: People are so frustrated with the lack of progress on immigration reform that state legislatures are drafting and passing laws that are at odds with the Immigration Act, while being mean-spirited in practice and not in the nation’s interest.

Recently, President Obama’s deferred action initiatives were dealt a major setback after the Fifth Circuit refused to lift a federal judge’s injunction on the program’s rollout over rule-making and publication objections. The result is that there will be even less movement from the status quo for the remainder of President Obama’s second term. Immigration courts have come to a near standstill for ordinary cases while juvenile and felony cases are fast-tracked.

With this level of inaction and uncertainty there is not a specific area of growth to point to. Family-based, litigation, consular, worksite enforcement and global immigration all have economic pluses and minuses. I continue to believe that well-rounded immigration practitioners who can adapt quickly to trends are in the best position to succeed. Those who bet the farm on one subspecialty or another can see dramatic floods and droughts. I am aware of a number of practitioners who bit off significant overhead with the expectation of dramatic demand and are now struggling under that monthly expense.

I do not worry about the academic preparedness of the attorneys with which I work, they are all passionate about the law and continue to learn the procedural changes that come down week by week. What I do concern myself with is the ability of legal thinkers to be empathetic with their clients, both individual and corporate.

As we approach the third decade of this century, I think it is critical for attorneys, and immigration attorneys in particular, to be able to put themselves in their clients’ shoes and not merely focus on purely legal answers. This generation of clients are experienced consumers of services who bring with them expectations, reasonable or otherwise. Our clients not only want a specific result, they want it within an agreed upon and projected time frame, within an agreed budget, without surprises or change orders and with proactive communication and expectation setting along the way.

Q: Outside your firm, name an attorney in your field who has impressed you and explain why.

A: Rami Fakhoury in Detroit has really impacted my thinking about restructuring workloads to achieve measurable improvement in legal work output while maintaining quality and consistency of legal work product, often while also improving quality and client satisfaction levels.

Q: What is a mistake you made early in your career and what did you learn from it?

A: Fifteen years ago, when I opened Foster’s Austin office, I was overly focused on making sure the office was viewed as profitable from the outset, and I utilized the resources that were immediately available — two law clerks from Houston and a handful of legal assistant trainees — to handle what was a pretty significant case load. I have since learned that identifying, selecting and waiting for the right candidates to become available is the best long-term strategy and that enduring the extended hours in the short-term is well worth the effort.