Tag Archive for: Competence

Cyrus Mehta

Ethical Dimensions of Patel v. Garland

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By Cyrus D. Mehta and Kaitlyn Box*

On May 16, 2022, the Supreme Court issued its decision in Patel v. Garland, a decision that has devastating implications for the reviewability of U.S. Citizenship and Immigration Services’ (“USCIS”) actions in federal court. Federal courts, according to the Supreme Court, will no longer be able review factual errors of the USCIS that result in the denial of an application. As there has been plenty of  analysis of this decision, see here and here and here, our blog will instead  address the ethical implications that Patel v. Garland will have on immigration practitioners.

The factual background of the case is strikingly sympathetic. Pankajkumar Patel and his family entered the United States without inspection in the 1990s, and Mr. Patel applied for adjustment of status some years later under § 245(i) of the Immigration and Nationality Act (INA). USCIS, however, became aware that Mr. Patel had checked a box indicating that he was a U.S. citizen on a Georgia driver’s license application, and found him inadmissible under § 212(a)(6)(C)(ii)(I) for falsely misrepresenting himself as a U.S. citizen. Mr. Patel was placed in removal proceedings and renewed his adjustment of status application in Immigration Court, testifying that he had checked the wrong box on the driver’s license application by mistake. In fact, under Georgia’s law, it did not make a difference regarding his eligibility for  a license whether he was a citizen or not. He was eligible because he had an application seeking lawful permanent residence had a valid employment authorization document.  The Immigration Judge denied Mr. Patel’s adjustment application and ordered him removed. The Board of Immigration Appeals (“BIA”) denied his appeal. Mr. Patel sought review of the decision at the Eleventh Circuit, but the court held that it  § 242(a)(2)(B)(i), a statutory provision which prohibits judicial review of “any judgment regarding the granting of relief” under § 245, prevented it for exercising jurisdiction over his claim.

By the time the Supreme Court heard the case, Mr. Patel had lived in the United States for some 30 years and his children, now adults, had become lawful permanent residents. Despite Mr. Patel’s plight, the Court held that it lacked the jurisdiction to review facts found as part of adjustment of status proceedings under INA § 245. The majority opinion, authored by Justice Amy Coney Barrett, focused on the meaning of the word “judgment” in § 243(B)(2)(B)(i), the statutory provision preventing federal courts from reviewing “any judgment regarding the granting of relief”. Mr. Patel argued that this provision, called the jurisdictional bar, applies only to an Immigration Judge’s ultimate decision of whether to grant relief.  The Government argued that the use of “judgment” refers exclusively to a decision that requires discretion. The majority was not persuaded by Mr. Patel’s or the Government’s arguments, and instead adopted the interpretation asserted by attorney Taylor Meehan, acting as an amicus, who defined a “judgment” for §1255 purposes as “any authoritative decision—encompassing any and all decisions relating to the granting or denying of discretionary relief”.

Finding that it did not have the jurisdiction to review his adjustment of status claim, the Court’s decision not only leaves Mr. Patel potentially vulnerable to removal, effectively eviscerates the ability of federal courts to review USCIS errors. Justice Gorsuch emphasized this issue in a surprisingly forceful and stirring dissent, stating: “Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court will even hear the case.” Justice Gorsuch, whose dissenting opinion was joined by Justices Breyer, Sotomayor, and Kagan noted that the Immigration Judge who heard Mr. Patel’s case mistakenly asserted that only U.S. citizens and lawful permanent residents are eligible for driver’s licenses in Georgia, a mistake that informed his conclusion that Mr. Patel must have intentionally held himself out to be a U.S. citizen on the application in order to obtain a license. In fact, as noted, a broader group of individuals who are not U.S. citizens or LPRs can obtain a driver’s license in Georgia. Despite the devastating consequences of this error and others like it, federal courts are powerless to intervene after Patel.

Practitioners following Patel v. Garland need to be aware of various ethical considerations when representing a client on an I-485 adjustment of status application. ABA Model Rule 1.1 requires the practitioner to provide competent representation to clients.  ABA Model Rule 1.3 requires the practitioner to act with reasonable diligence and promptness in representing the client. There are also parallel grounds for disciplining practitioners who practice before the DHS or EOIR for failing to represent the client competently and diligently at 8 CFR §1003.102(o) and 8 CFR §1003.102(p) respectively.   If the USCIS makes a mistake on an applicant’s I-485 adjustment application resulting in a denial, every effort must be made to convince the USCIS to correct the error as the practitioner will no longer be able to rely on a federal court to correct it. In an adjustment of status proceeding, there is no administrative appeal after the USCIS denies the application. Therefore, the practitioner would need to file a motion to reopen or reconsider the denial within 30 days of the decision. Although the applicant can seek review of the denial of the I-485 application in removal proceedings, the USCIS does not routinely place the applicant of a denied I-485 application in removal proceedings. While an applicant can request the USCIS to initiate removal proceedings when an I-485 application is denied through a Notice to Appear, the USCIS may choose not to do so. In this case, the practitioner can potentially file another I-485 application and request the USCIS to review its prior determination in the context of a new I-485 application. Alternatively, when removal proceedings have not been initiated, filing an action under the Administrative Procedures Act in federal district court may still be a possible avenue under Pinhoe v. Gonzales, 432 F.3d 193 (3rd Cir. 2005) which has likely not been impacted by Patel v. Garland.

If the applicant is placed in removal proceedings following the denial of an I-485 application, the practitioner must continue to competently and diligently represent the client before an Immigration Judge. Every effort must be made to convince the IJ that the USCIS’s denial was based on a factual error. The practitioner must ensure that all evidence is submitted that would convince the IJ to render a favorable decision. If the IJ still denies the application, the respondent in removal proceedings can file an appeal to the Board of Immigration Appeals. Here too, in this proceeding, the practitioner must continue to competently and diligently represent the client and ensure that the record contains evidence and arguments that were submitted in support of client’s position. If the BIA affirms the denial, although Patel v. Garland forecloses judicial review of factual errors, INA §242(a)(2)(D) makes an exception with respect to judicial review of constitutional claims or questions of law. Therefore, every effort must be made to explore whether there was a constitutional claim or question of law when seeking review in a court of appeals following the dismissal of the appeal by the BIA. See, e.g. Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir 2005)(there is no bar to reviewing a non-discretionary decision of whether person is eligible as a matter of law under §245(i)); Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (permitting review of legal error where IJ looked behind application to deny I-485 based on a police report).

If the practitioner has acted competently and diligently in representing the client, and the I-485 application still remains denied, the practitioner cannot be held responsible for the denial. On the other hand, if it can be demonstrated that a practitioner’s representation constituted ineffective assistance to the client, the client can seek to reopen a removal order by following the procedure under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) as set forth below:

  • The motion must be supported by a declaration from the respondent attesting to the relevant facts. The declaration should include a statement of the agreement between the respondent and the attorney with respect to the representation.

  • Before the respondent files the motion, he or she must inform counsel of the allegations and give counsel the opportunity to respond. Any response should be included with the motion.

  • The motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.

  • The respondent must show that the representation was ineffective and prejudiced the respondent.

Therefore, practitioners must maintain a record in their files that they had acted competently and diligently in representing the client notwithstanding that there was a denial of the I-485 to insulate themselves against ineffective assistance of counsel motions under Matter of Lozada.

Another ethical consideration is whether disclosure must be made in response to questions on the I-485 application, and this obligation continues even after the I-485 application has been filed and prior to the conclusion of the proceeding. Thus, if a client has made a false claim to citizenship on another application such as for a driver’s license, disclosure must be made on the I-485 application at Part 8, Question 66.  In Patel v. Garland, Patel was prosecuted by Georgia, although the state dropped its prosecution after concluding that it had insufficient evidence that Patel committed a crime. The driver’s license application incident arose after Patel filed the I-485 application, and it is not clear whether Patel voluntarily made disclosure or whether the USCIS asked for it after Georgia prosecuted him. Of course, when there has been a criminal prosecution, Part 8 Question 25 also requires a response in the affirmative whether the applicant has been charged, cited or arrested or detained by a law enforcement official for any reason.  Under ABA Model Rule 3.3, the practitioner shall not make a false statement or fail to correct a false statement to a tribunal. If a false statement has been knowingly offered, the lawyer is obligated to take reasonable remedial measures, including if necessary, disclosure to the tribunal. In case there is any ambiguity whether USCIS is a tribunal under ABA Model Rule 1.0(m), 8 CFR 1003.102(c) contains an analogous sanction for immigration practitioners that does not distinguish whether any DHS agency is a tribunal or not, as follows:

Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures.

If a practitioner confronts a similar situation with a client who made a false claim to citizenship on a driver’s license, would there be an obligation to disclose this on the I-1485 application when the claim was not material to the benefit being sought as in Patel’s case? INA §212(a)(6)(C)(ii)(I) renders a noncitizen inadmissible “who by fraud or willfully misrepresenting a material fact seeks to procure (or has sought to procure or has procured) a visa, or other documentation, or admission into the United States or other benefit provided under this Act.” The Supreme Court in Patel cited the BIA’s decision in Matter of Richmond, 26 I&N Dec. 779 (2016), which held that INA §212(a)(6)(C)(ii)(I) is only applicable when a noncitizen 1) makes a false representation of citizenship, 2) that is material to a purpose or benefit under the law and 3) with the subjective intent of obtaining the purpose or benefit.

If the client met the standard under Matter of Richmond, and it is determined in good faith that the client did not implicate INA §212(a)(6)(C)(ii)(I), would there be a duty to disclose on the I-485 application that the client made a false claim to citizenship? While not disclosing under these circumstances might be defensible,  it would be more prudent to disclose and then explain why the applicant should not be found inadmissible under Matter of Richmond.

Hundreds of thousands of noncitizens have filed I-485 adjustment applications based on family and employment-based petitions. Immigration practitioners must be even more vigilant in representing a client competently and diligently in ensuring that the USCIS does not make a mistake when rendering a decision on an I-485 adjustment application, and if that happens, must continue to represent the client competently and diligently in seeking to redress the mistake under the limitations imposed by Patel v. Garland. The stakes have never been higher.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Ethical Dimensions to Federal Court Litigation in Immigration Matters

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In light of the higher possibility of denials of routine H-1B and L-1 petitions, immigration lawyers may want to consider stepping out of their comfort zones. They should consider thinking about representing the client beyond the motion to reopen or appeal to the Appeals Administrative Office (AAO) in the event of a denial. Seeking judicial review of a denial under the Administrative Procedures Act is a very viable route to challenge a denial. Immigration lawyers may wish to structure the engagement to contemplate federal court action too, and also discuss this possibility with clients at the very outset. Sure enough, not all lawyers, especially business immigration lawyers, may wish to become federal court litigators. Even if they do not wish to do so, they must still provide that option to the client and be willing to refer the federal court matter to another firm.

Before representing a client in federal court, immigration lawyers must be mindful of some key ethical rules, which will be discussed in greater detail below: ABA Model Rule 1.1 – a lawyer must provide competent representation. ABA Model Rule 1.2(a) – a lawyer shall abide by client’s decisions concerning the objectives of representation, and shall consult with client as to means by which they are pursued. ABA Model Rule 1.2(c) – a lawyer may limit the scope of the representation.  ABA Model Rule 1.3 – a lawyer shall act with reasonable diligence and promptness in representing a client.  ABA Model Rule 1.4 – lawyer is obligated to communicate with client with respect to which the client’s informed consent is required (e.g. lawyer must communicate pros and cons of administrative v. judicial review). ABA Model Rule 1.7 – a lawyer may represent two clients even if there is a conflict of interest if the lawyer reasonably believes that he can provide competent and diligent representation to both affected parties.

Immigration lawyers should have federal court litigation in their sights at the very outset of the representation as it is possible to altogether bypass the AAO upon denial and seek review in federal court.  Under Darby v. Cisneros, 509 U.S. 137 (1993),  exhaustion of administrative remedies is not required when the agency’s regulation does not mandate it, which is the case with AAO appeals. Still, judicial review may not always be the optimum strategy. If the administrative record is not adequately developed, then seeking administrative review may also allow the lawyer to supplement the record on behalf of the client. The lawyer must competently advise on the pros and cons of seeking judicial review over administrative review, which has been addressed in Administrative Review Versus Judicial Review When an Employment-based Petition is Denied. The lawyer may then proceed based on the client’s wishes, and in immigration cases there will generally be two clients, after obtaining informed consent.

The immigration lawyer normally undertakes dual representation of the employer and the employee. Representing both employer and employee is permissible so long as the goals are aligned, which they normally are in the pursuit of an H-1B or L-1 petition by the employer on behalf of the foreign national employee. Under ABA Model Rule 1.7, even if there is a potential for conflict of interest, lawyers may represent both client so long as they provide competent and diligent representation to both. The risk for conflict may become more acute after a denial when one client may wish to seek judicial review while the other client doesn’t. The lawyer must be able to manage such a conflict or withdraw from the representation of both clients.

Lawyers should objectively evaluate the pros and cons of federal court litigation with their clients. They must adequately communicate with the client, in accordance with ABA Model Rule 1.4, so that the client can give informed consent regarding whether to litigate in federal court or not. Most employer clients are hesitant to litigate because they may fear government retaliation. The lawyer should assure the client that the government does not have a policy of retaliating if the employer chooses to litigate. An employer may also be dissuaded from litigating because of potential adverse publicity. If the employer is gun shy about litigating, and the employee desires to litigate, a lawyer can resolve the conflict by having the beneficiary as plaintiff so long as the employer supports litigation and keeps the job open. Of course, the lawyer must research the case law in the circuit regarding whether the beneficiary can serve as a plaintiff and also  be prepared to face more resistance from the government if the beneficiary as opposed to the employer is the plaintiff.

One aspect of managing conflicts at the time of federal court litigation is determining who can pay fees involved in litigation?  As noted, there are times when the foreign national beneficiary may wish to sue while the employer takes a back seat. In such cases, the employee wishes to pay the fee rather than the employer. As the APA potentially gives the beneficiary standing to seek review over a denied labor certification and H-1B, fee restricting rules such as 20 CFR 656.12(b) (concerning labor certifications)  and 20 CFR 655.731(c)(9)(ii) (concerning H-1Bs) cannot thwart the foreign national’s right under the APA to challenge the denial. Therefore, it may arguably not be a violation of these rules prohibiting the foreign national from paying the fee in the context of a law suit filed under the APA. This has been addressed in  Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B or Labor Certification Denial?

Lawyers may also claim fees under the Equal Access Justice Act, which may give them the incentive to take on a case on behalf of a client who may not be able to afford to pay the fees. The EAJA authorizes the payment of attorney’s fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation “was substantially justified.” The engagement agreement should be able to address how fees under the EAJA will be addressed. A lawyer may have the client pay all the fees and then let the client get the EAJA fees if victorious in the action. Alternatively, the lawyer may charge no fee or a low fee, but the client agrees to give the EAJA fee to the lawyer. It must be clearly indicated in the engagement agreement when the lawyer will claim the EAJA fee and when lawyer will give back EAJA fee to client.

Here are some other nuggets regarding the ethics of financing litigation that might be useful for immigration lawyers. Pursuant to DC Bar Ethics Opinion 375  lawyers are generally free to represent clients who pay for legal services through crowdfunding. However, the lawyer must be mindful of the source of the funds because of the heightened risk in the event that the funds are obtained through illegal means.  The lawyer may also wish to counsel the client about the risk of sharing confidential information to third parties funding the litigation. But when the lawyer directs the crowdfunding, the lawyer must be aware of the ethical rules relating to payment of fees by third parties, management of client funds, communications with third parties, and fee agreements. Also note that under ABA Model Rule 1.8(e), a lawyer is prohibited from providing financial assistance to a client in contemplation of pending or contemplated litigation, except with respect to advancing court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter. With respect to indigent clients, lawyers may pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.

The lawyer must be mindful of ABA Model Rule 1.1 regarding competence. If a lawyer knows that she is not competent to handle a federal litigation matter, she should associate with a lawyer who is competent to handle it. Rule 1.1, however, does not preclude new lawyers from handling a matter for the first time provided they become competent. Comment 2 to ABA Model Rule 1.1 is worth noting:

A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

Moreover, part of being a competent lawyer is to also be prepared to carry forward federal court litigation to completion. While most lawyers have been able to reverse an adverse decision through settlement with the Assistant US Attorney, some have had to be litigated to conclusion. While there are many reported cases of a district court judge overturning a denial, many district courts have also upheld USCIS denials. The lawyer should not take the position that because she is comfortable with only seeking administrative review with the AAO, she will not litigate, consider litigation or provide any advice regarding litigation. While a lawyer may stay within his comfort zone by not litigating, and can also limit representation under ABA Model Rule1.2(c), it is incumbent upon this lawyer to recommend client(s) to another counsel who will be able to litigate the matter.

The lawyer may also have to get pro hac vice admission or get admitted in new jurisdiction. The lawyer must then not subsequently become administratively ineligible by failing to pay annual fees, either intentionally or inadvertently,  or complying with CLE requirements in that jurisdiction.  The lawyer can be sanctioned under 8 CFR 1003.102(f) for knowingly misstating his/her qualifications on a G-28 or EOIR 27/28.

There are other considerations prior to undertaking federal court litigation.  The lawyer must check whether underlying basis of denied H-1B petition still exists. Has the job site changed so that the  LCA is no longer valid (as one cannot do a Simeio amendment on a denied H-1B)? Is there still a job offer? Otherwise, the lawyer could be sanctioned under ABA Model Rule 3.1, non-meritorious claims, or Rule 11of Federal Rules of Civil Procedure (FRCP) if the factual contentions in a pleading do not have evidentiary support. However, if the facts change after litigation has commenced, such as the loss of the job, it may still be ethical to proceed with litigation as a successful outcome can impact positively impact the ability of the beneficiary to change status or to port to a new employer.

Finally, since immigration lawyers started filing APA actions in the past two years, most of the cases have settled favorably. After filing a complaint in federal district court, the case has often settled through the USCIS reopening the case and outright reversing the denial or through the issuance of another Request for Evidence.  Still, it is not prudent to undertake federal court action with the objective to solely to settle as FRCP 42 only allows withdrawal if defendant has not filed any pleading. Otherwise, an action may be dismissed upon the plaintiff’s request only by court order and on terms that the court considers proper. The lawyer must manage the expectations of the client in this regard, and charge appropriate fees to cover the entire duration of the court action rather than just the first phase in the hope that the case will settle.

While undertaking judicial review of denials, immigration lawyers must not just learn new rules, skills and procedures, but must also be cognizant of the ethical dimensions. This blog provides some pointers.

 

Cyrus Mehta

Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy

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U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.

 

 

 

 

 

 

Cyrus Mehta

EB-5 Green Card, Ethics and Trump

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The EB-5 green card program for foreign investors is very much in the news due to its connection with President Trump!

A series of news reports have highlighted the Kushner family’s attempt to raise funds through the EB-5 green card program from Chinese investors by suggesting Trump’s connection to one of its real estate projects through his son in law, Jared Kushner. Qiaowai  is a Chinese agency that acts as an intermediary between Chinese EB-5 investors and EB-5 projects, including the Kushner EB-5 project called One Journal Square in Jersey City. Qiaowai has touted this project’s close links to President Trump.  When Qiaowai did a road show in China recently, Nicole Kushner Meyer, Jared Kushner’s sister, was promoted as the event’s “heavyweight honored guest”.  According to the New York Times, Ms. Meyer told prospective investors that the Journal Square development project “means a lot to me and my entire family,” and that her brother served as chief executive of Kushner Companies before leaving the company to work for the president. Qiaowai’s founder, Ding Ying, has boasted about being close to Trump. Its website stated, “The fact that Ms. Ding has once again been invited to attend a presidential inauguration shows that the U.S. Congress values and approves of the Qiaowai group.” The US Immigration Fund, is the Regional Center promoting this project in the United States.

This close connection between an EB-5 project, the foreign migration agency, the Regional Center and Trump has resulted in a barrage of criticism as it once again brings up the specter of conflicts of interest. There has already been widespread concern about Trump’s businesses violating the Emolument Clause of the Constitution. At the same time, there has been scant commentary on the dilemma that such conflicts involving Trump and his family members pose for the immigration lawyer who represent EB-5 investors. Must the immigration lawyer, when providing a list of viable EB-5 projects that have resulted in green cards for the investor, now also recommend projects of the Kushner family because of their close proximity to President Trump? While an immigration lawyer should not be acting as an investment advisor, unless licensed, an immigration lawyer may still conduct “immigration due diligence” on behalf of the client. The immigration due diligence assesses the viability of the project, not with regard to whether it will deliver a rate of return, but from the perspective of whether the investor has a reasonable chance of getting the green card. Such diligence includes evaluating the past I-526 approvals through the project and whether the project will create the requisite 10 indirect jobs per investor to satisfy the EB-5 statutory requirement. It also includes whether the project is in a targeted area that qualifies for the $500,000 investment, whether the investment capital is at risk, the investor’s place in the queue regarding job allocations and a host of other considerations that are unrelated to investment advice. Conducting such immigration diligence is part of the immigration attorney’s ethical obligation to be competent under ABA Model Rule 1.1, which provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

The immigration lawyer must also consider other ethical rules, besides the duty of competence, when representing EB-5 investors:

Rule 1.2 addresses the scope of representation and the allocation of decision-making authority. According to this allocation, the client establishes the objectives, and the lawyer controls the means to pursue them.

Rule 1.4 on communication overlaps with 1.2: “A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.”

Rule 1.0 defines informed consent: “The agreement by a person to the proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Rule 1.3 on diligence emphasizes the lawyer’s commitment to the client. “A lawyer shall act with reasonable diligence and promptness in representing a client.” The first comment to Rule 1.3 expands on this statement. “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

As part of the lawyer’s competent representation and other ethical considerations on behalf of a prospective EB-5 investor client, must the ethical lawyer factor into consideration the EB-5 project run by the Kushner company due to its close relationship to President Trump? This is especially true when an intermediary such as a foreign migration agency in China has enticed the client to invest in a project that is close to the president. The lawyer may need to consider whether there is a likelihood of such an EB-5 project being treated more favorably, for example, by receiving less scrutiny with respect to its job creation plan, thus increasing the chances of a green card for the client? Hopefully, the answer should be “No,” but in the age of Trump, expectations have been defied and turned upside down many times over. In the not too distant past, then USCIS Director Mayorkas was investigated for appearing to show favoritism for EB-5 projects that had connections to Hillary Clinton’s brother and Senator Reid. Although Director Mayorkas did not face any sanction at the conclusion of the investigation, in an ideal world, an EB-5 project’s connection to Trump or his family ought not to matter. Both the financial advisor and immigration attorney should independently evaluate the project without regard to any political connections. By the same token, even the USCIS should independently evaluate the project, without regard to whether it is connected to a close family member of the president. It is also worth noting that the success or failure of an EB-5 application depends, not so much on the project, but on whether the investor can demonstrate the source of funds. In other words, is the investor able to demonstrate he or she was the owner of the funds from the very beginning? If the investor cannot demonstrate that he owned the funds, as opposed to an uncle depositing the money in the investor’s bank account, the EB-5 application will fail regardless of the strength of the EB-5 project. Therefore, the immigration lawyer can ethically advise that the success or failure of an investor’s EB-5 application may have nothing to do with how connected it is to the president.

Still, Flaubert said, “There is no truth. There is only perception.” If an investor hears that someone who invested in an EB-5 project connected to the Trump name got approved before she did in another EB-5 project, there will always be this lingering doubt in the mind of that investor. While Trump and his family members may yet be unaffected by their conflicts of interest, immigration attorneys have been left scratching their heads when representing EB-5 investors whether to ask clients to consider EB-5 projects close to Trump. Of course, while we are all witnessing a breathtaking compromise of ethics at the presidential level, it still behooves a lawyer to comply with the ethical rules when representing EB-5 investor clients. It is quite often the case that a foreign migration agent in China, such as Qiaowai, will hire the immigration lawyer to prepare and file EB-5 applications on behalf of its clients. Foreign migration agents play a crucial role in assisting the investor in assembling the documentation to demonstrate lawful source of funds, assisting in communications and translations and monitoring the statuses of all processes and filings of the investor. Still, as New York State Bar Ethics Opinion 1116 recently stated, it is imperative that the lawyer maintain her independence from the migration agent and that the lawyer’s judgment not be compromised. Therefore, if the migration agent has steered the investor into an EB-5 project with a close connection to Trump, it is incumbent on the lawyer to still maintain professional independence and to ensure that the lawyer’s judgment has not been compromised. The lawyer may wish to advise the client that the foreign migration agencies’ claims may be mere puffery.  If the lawyer accepts referrals from a foreign migration agent knowing that the investment selected by the agent will not be in the client’s best interest, the lawyer may be conflicted and must get informed consent from the EB-5 client under Rule 1.7(b). The client must acknowledge that the lawyer has a relationship with a foreign migration agent who may be steering the client to a project that may ultimately not be in the client’s best interest. Under no circumstances may a lawyer pay a referral fee to the foreign migration agent. If the foreign migration agent insists that the referral fee is for payment for expenses for services it provides, those services and expenses have to be identified and disclosed to the EB-5 investor client and should not cost more than services that could be found elsewhere.

Trump can remain in office for four years, and if he wins reelection, for a maximum of eight years, unless he is impeached before that! While Trump and his family members may disregard conflicts of interest and the truth, a lawyer cannot and should not follow suit. The lawyer must stay within the ethical rules – which includes not lying, not being compromised by conflicts and being competent – in order to outlast Trump by many decades.