Tag Archive for: Ethical Considerations

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

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.