Cyrus Mehta

Reflections on Giuliani’s Suspension of his New York Bar License

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The  temporary suspension of Rudolph Giuliani’s bar license by a New York appellate court for making false statements on behalf of Donald Trump’s election is thought provoking for lawyers, especially those who have opposed Trump and continue to oppose him.

The court wrote that “these false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client.” The court further stated that “respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.”

Giuliani’s temporary suspension is based  specifically  on New York Rules of Professional Conduct 3.3, 4.1 and 8.4 while he was serving as Trump’s lawyer.

Rule 3.3 provides that: “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal . . . .”

Rule 4.1  provides that: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person,”

Rule 8.4 provides that  “A lawyer or law firm shall not: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, . . . or (h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

Charging a lawyer for a 3.3 violation is narrow as the lawyer must make false statements to the courts, but Giuliani was also charged under 4.1 and 8.4 for making false statements to legislators and the public. Charging a lawyer for making statements to the public under 4.1 and 8.4 is concerning as another disciplinary authority sympathetic to former president Trump may charge a lawyer for allegedly making false claims against Trump. One may argue that  Giuliani was  primarily charged in his capacity as a lawyer for Trump but the disciplinary rules are broad and allow a disciplinary authority to charge a lawyer  even if the lawyer may not be acting in a representational capacity on behalf of a client.

Many lawyers tweeted  that Trump was helped by the Russians to steal the 2016 elections and thus engaged in criminal conspiracy. The Mueller report found insufficient evidence that Trump’s  campaign “coordinated or conspired with the Russian government in its election-interference activities. “  However, the same  report  also found that  Trump engaged in  obstruction of justice, and so a lawyer  accused of making false claims against Trump can find support in the Mueller report itself  that the Russian government “interfered in the 2016 presidential election in sweeping and systematic fashion” and “violated U.S. criminal law”.    Even if a lawyer’s tweet is perceived by a pro-Trump disciplinary authority as not being entirely entirely  true that Trump criminally conspired with Russia, there probably would not be a basis to charge lawyers  under Rule 4.1 or 8.4 as they were not acting as lawyers for Clinton or her campaign. This lawyer may have a far stronger defense than Giuliani as the allegation that Trump was involved in a criminal conspiracy with Russian agents has not been entirely disproven.

Another interesting aspect of the NY court’s opinion is that Giuliani also lied that “illegal aliens” voted in Arizona. Here too he did this in his capacity as a lawyer for a Trump, but another NY lawyer Aaron Schlosberg was publicly censured  under 8.4(h) when he went on a racist rant against workers in a NY restaurant who spoke Spanish and not English, and he did not do this while representing a client. https://www.law.com/newyorklawjournal/2021/01/04/manhattan-attorney-whose-racist-rant-went-viral-is-publicly-censured/?slreturn=20210524210958. This part of the opinion brings vindication to immigration lawyers who have strenuously opposed Trump and his allies for scapegoating immigrants.

The bottom line is that the same broad First Amendment protections may not apply to lawyers who violate the disciplinary rules, especially when they  knowingly make false statements in the course of representing a client or engage in conduct that adversely reflects on their fitness as a lawyer. While Rule 3.3 is more specific as a lawyer can only be accused of violating it if they lie in court, and Rule 4.1 is triggered when the lawyer lies to third parties in the course of representing a client, a lawyer can be disciplined for just about any perceived violation under Rule 8.4 whether it is inside or outside the courtroom and even when it relates to conduct in a lawyer’s private life.

So while we rejoice that Giuliani got his comeuppance for blatantly lying on behalf of Trump that the election was stolen from him, remember the old saying that what is good for the goose is also good for the gander.

Cyrus Mehta

Sanchez v. Mayorkas: Although TPS Is Not An Admission, Justice Kagan’s Opinion Leaves Open Avenues for TPS Recipients to Adjust Status as Nonimmigrants

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By Cyrus D. Mehta and Kaitlyn Box*

On June 7, 2021, the Supreme Court decided Sanchez v. Mayorkas, holding that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. Though overall a disappointing decision, the Court’s opinion may nonetheless leave open some options for some TPS recipients who want to obtain their green cards.

Sanchez v. Mayorkas involved the plight of Jose Santos Sanchez, an El Salvadoran national who entered the United States without inspection in 1997 and was subsequently granted TPS based on a series of earthquakes in his home country. In 2014, Sanchez, together with his wife, Sonia Gonzalez, sought to adjust status after more than 20 years of residence in the United States, but the USCIS denied his application on the grounds that “[a] grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national”.

Sanchez challenged the denial, and the District Court ruled in his favor, holding that an LPR “’shall be considered as’ having ‘lawful status as a nonimmigrant’ for purposes of applying to become an LPR”. See Santos Sanchez v. Johnson, 2018 WL 6427894, *4 (D NJ, Dec. 7, 2018). The District Court further held that INA §244(f)(4) requires TPS holders to be treated “as though [they] had been ‘inspected and admitted.’” The Third Circuit, though, reversed, holding that “a grant of TPS does not constitute an ‘admission’ into the United States.” Sanchez v. Secretary U. S. Dept. of Homeland Security, 967 F. 3d 242, 252 (2020).

The Supreme Court, in an opinion authored by Justice Kagan, held that an individual who entered the United States without inspection is not eligible to adjust status under INA §245 by virtue of being a TPS recipient. The Court drew a distinction between the concept of “admission” and one’s immigration status, noting that there are several categories of individuals who have nonimmigrant status without having been admitted to the United States (alien crewmen, crime  victims in U visa status, etc.).

Though unfortunate that the Court did not consider a grant to TPS to be an admission under INA § 245(a), Justice Kagan’s opinion includes some interesting language that may leave open some avenues for TPS recipients to adjust status. On pages 8-9 of the opinion, the Court held that TPS recipients will be considered to have nonimmigrant status, which is needed to adjust status under §245. Thus, an individual who was admitted to the United States in lawful B-2 status for example, but fell out of status before being granted TPS might be able to adjust status, having satisfied both the “admission” and “nonimmigrant status” requirements.

Thus, it is unclear whether a grant of TPS “wipes out” a lapse in one’s nonimmigrant status, no matter the duration. Justice Kagan gives the more narrow example of an individual who was out of status for a few months before receiving TPS, potentially implying that TPS ends an individual’s time out of status who otherwise would have exceeded 180 days and been unable to adjust under INA § 245(k). However, a noncitizen relying on §245(k) to adjust status would not need to have received TPS, or any other nonimmigrant status, to file an employment based I-485 within 180 days of admission.  On the other hand, INA §245(k) could still potentially come to the rescue if the individual is granted TPS status within 180 days of the admission but then seeks to file for adjustment of status 180 days after the admission. The grant of TPS would have put the person back in nonimmigrant status within the 180 days from the admission, even if they file an adjustment application after 180 days.

Justice Kagan’s opinion can be interpreted even more broadly to support the idea that a grant of TPS “wipes out” a lapse in the nonimmigrant status and thus overrides INA §§§ 245(c)(2), (7) and (8), when the lack of a lawful status impedes an individual’s ability to adjust status. Under INA §245(c)(2) an applicant for adjustment of status even if admitted (other than an immediate relative) is precluded from applying for adjustment of status if they are in unlawful status at the date of filing the application or who have failed to maintain continuously a lawful status since entry into the US. INA § 245(k) allows one who was admitted to apply for adjustment of status under the first three employment-based preferences and the employment-based fourth preference as a religious worker if they have failed to maintain lawful status for not more than 180 days. But INA § 245(k) is inapplicable to one who is applying for adjustment of status under a family-based preference.  A grant of TPS at any point in time, if Justice Kagan’s opinion is interpreted broadly, should once again render an applicant eligible for adjustment of status whether they are filing an adjustment application under a family based preference or  an employment-based preference even 180 days beyond the admission and the grant of TPS.

INA § 245(c)(7) similarly precludes adjustment of status to that of an immigrant under INA § 203(b) (the five employment-based preferences) for one who is not in a lawful nonimmigrant status. A grant of TPS ought to wipe out this impediment. INA § 245(c)(8) disqualifies one from adjusting status who accepted employment while unauthorized. Under the broader interpretation of Justice Kagan’s opinion, the grant of TPS ought to also remove this impediment under INA § 245(c)(8) too.

While the Supreme Court nixed the ability of TPS applicants to adjust status if they were not admitted, there are still some bright spots if one carefully parses through Justice Kagan’s opinion. Under the broadest interpretation of Justice Kagan’s opinion, TPS applicants, if they were initially admitted, should continue to claim that they are eligible to adjust status under both the family and employment preferences by virtue of receiving nonimmigrant status.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad Is Welcome and Consistent with Federal Court Decisions

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On May 18, 2021, the State Department issued guidance broadening the path for transmission of US citizenship to a child born abroad to married parents. The guidance is reproduced below:

Recognizing the advances in assisted reproductive technology the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act (INA), which establishes the requirements for acquisition of U.S. citizenship at birth.

Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements.  Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.

This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952.

This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA.   Requirements for children born to unmarried parents remain unchanged.

At the same time, we remain vigilant to the risks of citizenship fraud, exploitation, and abuse.  As with all citizenship and immigration benefits we examine, the Department will implement this policy in a manner that addresses these concerns.

This new interpretation allows a U.S. citizen who has a child through surrogacy, an egg donor, in vitro fertilization as well as other advances in assisted reproductive technology (ART)  to transmit U.S. citizenship to their child, even if there is no genetic or gestational relationship to the U.S. citizen parent so long as such a link exists with the other married parent. As stated in the State Department’s announcement, this change in policy “takes into account the realities of modern families.” This is welcome news for a growing number of families who rely on the advancements of reproductive technologies to build their families.

For instance, prior State Department policy deprived the US citizen mother who may neither have been the gestational mother nor have a genetic relationship with the child from passing US citizenship. A US citizen mother is medically unable to bear a child and needs to use a surrogate mother overseas to carry the child to birth, and the egg is not hers and the sperm is from a non-US citizen father, US citizenship could not be passed onto the child. Thus, under the prior policy, such a mother who for medical reasons was unable to establish a biological link to her child, and also could not serve as the gestational mother herself, was unable to transmit US citizenship to her child. This was unfair for such mothers.

The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. The willingness and ability to understand parentage in a broader sense is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law and more recently a Second Circuit case, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005);   Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018).  In these cases,  so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated,  the child did not need to prove that he or she was the biological child of the US citizen parent to acquire citizenship.

Public policy supports recognition and maintenance of a family unit. The Immigration and Nationality Act (“INA”) was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members. See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir.1980) (discussing the “humane purpose” of the INA and noting that a “strict interpretation” of the Act, including an “arbitrary distinction” between legitimate and illegitimate children, would “detract from … the purpose of the Act which is to prevent continued separation of families.”); H.R.Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N.2016, 2020 (observing that the “legislative history of the Immigration and Nationality Act clearly indicates that Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united).

Solis-Espinoza, supra, at 1094.

The Second Circuit in Jaen v. Sessions did not insist on a genetic or gestational tie with the US citizen parent, and the State Department’s new policy is consistent with Jaen v. Sessions. David Isaacson’s blog, Jaen v. Sessions: The Government Reminds Us That Government Manuals Aren’t Always Right, correctly pointed out that the prior US government policy or guidance may not actually be the law, and federal courts need to step in to point this out. Fortunately, the State Department has now stepped in.  In Jaen v. Sessions, as discussed in David’s blog,  Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland.  But Jaen’s Panamanian birth certificate indicated that his father was another man named Liberato Jaen. Jaen moved to the US at the age of 15 as a nonimmigrant in 1988 and lived with the Boreland family. In 2008, Jaen was placed in removal proceedings based on controlled substance violations and he moved to terminate proceedings on the ground that he was a US citizen. The Immigration Judge denied the motion, and the Board of Immigration Appeals affirmed. The Second Circuit reversed and pointed out that  the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth.  As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father.  Jaen, slip op. at 13 & n. 5.  This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes.

Although the State Department policy is meant to cover children born through ART, it is clearly applicable to out of wedlock scenarios in Jaen, Solis-Espinoza and Scales. Levy Alberto Jaen, for example, had a genetic link to his non-US citizen mother Leticia Rogers Boreland, who was married to his US citizen legal (although not biological) father Jorge Boreland.  Consistent with the new State Department policy, Jaen had a genetic or gestational tie to at least one of [his] parents, Leticia, and she was married to another, U.S. citizen parent of his. Though born in Mexico, Solis-Espinoza claimed citizenship by virtue of the US citizenship of the woman he knew as his mother.   That woman, who was married to Solis-Espinoza’s biological father at the time of petitioner’s birth, acknowledged him from his infancy as a member of her family and raised him as his mother, though he did not in fact have a biological connection with that woman. Scales was born in the Philippines in 1977, to Stanley Scales, Sr.  an American citizen-serviceman at the time, and Aily Topaz, a Philippine citizen.   Stanley and Topaz met during the first week of September 1976, and one week later, Topaz told Stanley that she was pregnant, probably from a prior relationship.  Topaz and Stanley were married on March 13, 1977, and Petitioner was born on April 6, 1977.

Although one arguable difference is that he had a legally relevant third parent to a greater extent than generally exists in ART cases (where the egg or sperm donor is usually acknowledged not to have legal parentage rights),  it isn’t unheard of for a child to have more than two parents for immigration purposes especially in the stepparent context. The State Department’s new policy is not only consistent with the common law meaning of “parent” in the INA, especially INA 301(g), but it is also in keeping with public policy that supports the recognition and maintenance of a family unit.