Tag Archive for: Ethical Issues

Cyrus Mehta

Personal Conflicts of Interest Arising Out of the Israel-Hamas War

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By Cyrus D. Mehta and Kaitlyn Box*

The escalating war between Israel and Hamas  presents unique  challenges for immigration lawyers who represent noncitizens from impacted areas.

One such ethical conundrum arises when a lawyer comes to know that a current or prospective client holds views about the conflict that the lawyer strongly disagrees with or even finds repugnant. A lawyer whose family member was killed in the October 7th attack might not wish to represent a client who expresses support for Hamas, while a lawyer whose relative was killed or injured in the recent Israeli Defense Force (IDF) airstrikes in Gaza may not feel comfortable representing a former IDF soldier who expresses a lack of regret at the loss of lives of children and wants to apply for adjustment of status. Under some circumstances, a lawyer will have a personal conflict of interest if there is a significant risk that the lawyer’s professional judgment on behalf of the client will be adversely affected because of the opposing views between the lawyer and the client.

Because immigration lawyers are responsible for bringing in a client into the US or allowing the client to remain in the US, the personal conflict becomes more enhanced if they find the client’s views or conduct objectionable.

Pursuant to Model Rule 1.7(a)(2) of the American Bar Association (ABA), a lawyer shall not represent a client if a concurrent conflict of interest exists because “there is a significant risk that the representation of one or more clients will be materially limited by…a personal interest of the lawyer”. While the ABA provides model rules of professional responsibility, lawyers should refer to the analog of these rules in their own state bars that are binding on them.   Thus, a lawyer who feels uncomfortable representing a client due to the client’s views on the conflict need not do so, and can decline the representation. On the other hand, a lawyer need not shy away from representing a client, however objectionable the conduct may be, so long as there is a legal basis to represent the person.

If a lawyer realizes that a personal conflict of interest of this type exists with a current client, the lawyer can still withdraw from the representation of a client whose views or activities she finds reprehensible under ABA Model Rule 1.16(b)(4), which permits withdrawal if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”. Alternatively, a lawyer may withdraw from representation under ABA Model Rule 1.16(b)(7) if “other good cause for withdrawal exists”, which could include a fundamental disagreement with a client’s stance on, or activities related to, the conflict.

In other circumstances, though a lawyer may wish to represent, or continue representing a client, even though a personal conflict exists. A lawyer who finds herself in this situation may seek a waiver of the conflict under ABA Model Rule 1.7(b), provided that “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law….”, and the client provides consent. For example, a lawyer who finds protests opposing Israel objectionable may be representing a foreign student in F-1 status who has vehemently protested against the Israeli invasion of Gaza without expressing any sympathy for the victims of the Hamas attack on October 7, 2023. If the student client was involved in a protest that resulted in a physical altercation with an opposing group of protestors, he could be charged with assault, potentially a removable offense under INA § 237(a)(2)(A)(i). The lawyer can inform the student that she finds the student’s conduct repugnant but may still be able to competently and diligently represent the student by advising his criminal defense lawyer to negotiate the assault charge to a disorderly conduct offense, which will likely not have deportation consequences. On the other hand, the lawyer can inform the client that she will not be able to justify the student’s conduct in a press briefing or interview on behalf of the client because she disagrees with his conduct and finds it repugnant. If the client agrees to this sort of limited representation, the lawyer can represent the client competently and diligently notwithstanding this limitation. However, if it is important for the lawyer to be available to defend the student’s actions in the media as that might get the client a better deal with the prosecutors, and the lawyer is unable to handle media interviews on behalf of the client, then this potentially creates a non-waivable conflict and the lawyer must withdraw.

Immigration lawyers may also find themselves representing noncitizen students in F-1 visa status who are facing other immigration-related consequences as a result being involved in protests or making statements about the conflict. University of Pennsylvania President Liz Magill recently resigned after appearing to evade a question asking whether students who called for a “genocide of Jews” should be punished. This episode demonstrates terminology can be misunderstood, and how easily it could potentially ensnare a foreign student in F-1 status. While the term ‘intifada’ could mean an ‘uprising’ or ‘shaking off’ (see here and here), it could also be understood as violent resistance tantamount to  “genocide”, as illustrated by the Congressional hearing before Congresswoman Stefanik during which Magill and other university presidents testified. As we explained in our prior blog, there is a potential for troubling consequences for a noncitizen leader of a student organization who speaks out about the conflict in a way that seems to endorse terrorist activity.  A student who is on an F-1 visa could be found inadmissible under INA § 212(a)(3)(B)(i)(IV)(bb) as a representatives of “a political, social, or other group that endorses or espouses terrorist activity”. INA 212(a)(3)(B)(v) defines “representative” as “an officer, official, or spokesman of an organization, and any person who directs, counsels, or induces an organization or its members to engage in terrorist activity”. INA 237(a)(4)(B) also renders a noncitizen who is described in INA §212(a)(3)(B) and INA § 212(a)(3)(D) removable. Similarly, INA § 212(a)(3)(B)(i)(I) renders inadmissible noncitizens who “have engaged in terrorist activity”, which can include commission of “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” to a terrorist organization. If a student who has been ensnared under these provisions seeks the assistance of an immigration lawyer, the lawyer must first examine whether they would be able to objectively represent this individual. An attorney who has relatives still being held hostage by Hamas, must evaluate whether his objectivity in representing the client would be compromised under ABA Model Rule 1.7(a)(2).

Immigration lawyers should also be aware that not all personal conflicts can be waived. If the representation will result in a clear violation of the rules of professional conduct or other law, ABA Model Rule 1.16(a)(1) obliges the lawyer to withdraw. Regardless of whether a lawyer wishes to withdraw from representation under ABA Model Rule 1.16, or is required to do so, the lawyer must seek the permission of the tribunal to withdraw when the matter is before the tribunal. Moreover,  upon termination of representation the lawyer must take all reasonable steps to protect the client’s interest including giving reasonable notice, allowing time for the client to retain another counsel, surrendering papers and property to which the client is entitled to and refunding any unearned fees.

In screening for potential personal conflicts, immigration lawyers should be mindful of ABA Model Rule 8.4(g), which sanctions conduct that constitutes harassment or discrimination based on certain protected grounds related to the practice of law including race, sex, religion, national origin, ethnicity, disability. Age, sexual orientation, gender identity, marital status or socioeconomic status.

A lawyer who broadly declines to represent clients of a particular nationality or ethnicity, or applies additional screening procedures to only these clients, faces the risk of being sanctioned under Rule 8.4(g). Lawyers who engage in discriminatory conduct can also be sanctioned under the state analogs to Rule 8.4(g). Rule 8.4(h) of New York’s Rules of Professional Conduct, for example, broadly allows for the discipline of a lawyer who “engage[s] in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer”. A New York lawyer who threatened to report restaurant employees who were speaking Spanish to ICE in 2018 was censured under NY Rule 8.4(h).

 

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box

Ethical Considerations When the Removal Case is Dismissed

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By Cyrus Mehta and Kaitlyn Box*

In recent times, immigration courts are dismissing the cases of noncitizens with great zeal. Even government attorneys are moving to dismiss these cases and Immigration Judges (IJ) are going along. This bodes well for the noncitizen who is no longer facing the specter of a removal order. On the other hand, the dismissal of the case often leaves the noncitizen in limbo. The noncitizen may have filed a viable cancellation of removal case and has been obtaining interim work authorization for many years due to the case being stuck in an IJ’s overcrowded court docket. After the dismissal, the noncitizen can no longer renew work authorization and can lose their job.

These dismissals have their genesis in an  April 3, 2022 memorandum from  the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle (“Doyle Memo”),  which empowered ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the criteria laid out in the earlier Mayorkas memo. The goal of the ICE prosecuting attorney under the Doyle memo was to achieve justice rather than removing the noncitizen. Indeed, under the Doyle memo, the ICE attorney’s role as the government’s representative in removal proceedings was to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

On June 10, 2022, the U.S. District Court for the Southern District of Texas vacated the Mayorkas memo in Texas v. United States, No. 6:21-cv-0016 (June 10, 2022), holding that the guidance laid out in the memo violates the two mandatory detention provisions at INA § 236(c) and INA § 241(a)(2), as well as the Administrative Procedure Act (APA). As such, OPLA attorneys are no longer relying on the Mayorkas memo, or the sections of the Doyle memo that rely on the criteria provided in the Mayorkas memo. However, recent OPLA guidance on prosecutorial discretion states as follows: “OPLA attorneys, however, may—consistent with longstanding practice—exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

Although the Doyle memo is no longer applicable, the government continues to dispense with many cases in the way it recommends, relying now on traditional principles of prosecutorial discretion rather than a guiding memorandum.  As an alternative to dismissing the case, EOIR has recently begun removing some cases from the active calendar. The case thus remains technically open, but without any scheduled hearing date. 8 CFR § 1003.0(b)(1)(ii) provides the authority for this practice, stating:

“(b) Powers of the Director—(1) In general. The Director shall manage EOIR and its employees and shall be responsible for the direction and supervision of each EOIR component in the execution of its respective duties pursuant to the Act and the provisions of this chapter. Unless otherwise provided by the Attorney General, the Director shall report to the Deputy Attorney General and the Attorney General. The Director shall have the authority to:

. . . .

(ii) Direct the conduct of all EOIR employees to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board, the immigration judges, the Chief Administrative Hearing Officer, or the administrative law judges…”

This provision thus empowers EOIR to “ensure the efficient disposition of all pending cases”, “set priorities” for the resolution of cases, “direct that the adjudication of certain cases be deferred”, and “otherwise to manage the docket of matters to be decided”, which can include removing cases from the active calendar. For the noncitizen who has a cancellation of removal case and has been renewing work authorization, taking the case off the calendar is preferable than outright dismissal as they can continue to renew work authorization.

Dismissal of the proceeding can raise ethical conundrums for immigration practitioner representing the noncitizen. As already noted, if an individual in removal proceedings has an application for relief pending before EOIR such as an application for cancellation of removal and the case is outright dismissed, the noncitizen might lose work authorization or another benefit associated with the pending application. This individual will also be deprived of the ability to pursue the application and win cancellation of removal. Dismissal will put the noncitizen back to square one as an undocumented person. It is possible that a noncitizen who has been granted cancellation of removal but is waiting in the queue for a number can also be subject to a unilateral motion to dismiss by an ICE prosecutor.  Thus, it is crucial for attorneys to promptly notify clients of an outright dismissal and any associated consequences.

Before accepting the dismissal, the client should consent to the dismissal. Winning a request for cancellation of removal is never guaranteed as the respondent has to demonstrate, among other things, that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” See INA § 240A(b)(1)(D). Hence, even if dismissal would deprive the client of work authorization, in the long term, the client would not want to risk a removal order. On the other hand, a client who may not have any alternative relief on the horizon may want to take the chance and pursue cancellation of removal in the hope of winning even though there is a risk that an IJ may deny the claim.

It is important to communicate the risks and benefits to the client who is facing a dismissal of the proceeding. ABA Model Rule 1.4 requires the attorney to inform the client of any decision or circumstance with respect to which the client’s informed consent is required. Under ABA Model Rule 1.0(e) “‘Informed consent’ denotes the agreement by a person to a 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.” The attorney must also check the state analogue to the ABA model ethical rules where they may be admitted. Moreover, there are independent grounds promulgated by the EOIR that can result in sanctions for an immigration conduct such as failing to  maintain communication with the client throughout the duration of the client-practitioner relationship,  8 CFR 1003.102(r), and failing to abide by a client’s decisions concerning the objectives of representation and failing to consult with the client as to the means by which they are to be pursued. 8 CFR § 1003.102(p).

Board of Immigration appeals case law also provides a basis for attorneys to be able to challenge outright dismissals that are deleterious to their clients. In Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998), the BIA held that once the NTA is filed  an Immigration Judge must not simply cancel a charging document upon USCIS’ invocation of prosecutorial discretion, but should adjudicate the motion to dismiss on the merits, considering arguments from both sides. Certain noncitizens have a right to be placed in removal proceedings. One whose affirmative asylum application is not granted must be referred for removal proceedings pursuant to 8 CFR § 208.14(c)(1). Similarly, under 8 CFR § 216.4(d)(2) and 8 CFR § 216.5(f), the denial of a joint I-751 or waiver I-751 petition requires the issuance of an NTA. A dismissal of such an application would clearly be in violation of not the applicable regulations. Still, the IJ can dismiss a proceeding where a meritless asylum application was filed with the USCIS for the sole purpose of seeking cancellation of removal in immigration court. See Matter of Andrade, 27 I&N Dec. 557 (BIA 2019). Thus, attorneys must be vigilant to contest a motion to dismiss if the facts of the case can be distinguished from Matter of Andrade. For instance, even if the asylum application may have been filed with the intention for seeking cancellation of removal, but the asylum application had merit, this would not be a basis for an IJ dismiss the proceeding.

ICE attorneys move swiftly to dismiss cases.  There is often a short time frame to respond to these motions, so advocates must be vigilant in ensuring that they inform clients and submit a timely response. Advocates should ensure that clients have an avenue for relief before joining a motion to dismiss, and should inform clients about what a dismissal would mean for their case and any negative consequences.

Further, although the current practice is to outright dismiss the case, ICE attorneys may agree to administrative closure when the noncitizen does not oppose and the specific facts of the case warrant administrative closure over other means of clearing the case from the docket. In some instances, though, OPLA can unilaterally seek administrative closure regardless of the wishes of the noncitizen. As explained above, the case can also be removed from the active calendar.  Immigration attorneys should inform their clients of the impact that such actions would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure or removing the case from the active calendar is not a permanent termination of removal proceedings, so attorneys must continue to monitor administratively closed cases and seek more lasting forms of relief for their clients.

Despite its beneficial aspect, the various methods for exercising prosecutorial discretion can place noncitizens in uncertain situations and raise ethical dilemmas for their immigration lawyers. The attorney must be competent, diligent and must communicate with the client to ensure that the client is not worse off than in pending removal proceedings. Most important, the attorney must obtain the client’s informed consent before responding to any discretionary initiative by the ICE prosecutor or reaching an agreement with the government. The pros and cons of seeking relief under prosecutorial discretion over seeking relief under the INA must be carefully considered and discussed with the client.  Because OPLA does not include language in motions that would preserve a noncitizen’s ability to work, dismissal of the case often means that a noncitizen will lose work authorization with little warning. Dismissal of a case may also leave individuals with essentially no authorization to remain in the US, giving them little choice but to work without authorization, not pay taxes, and potentially violate the law in other ways. Immigration attorneys must carefully analyze these issues and advocate for their clients when a dismissal or administrative closure may do more harm than good.

 

This is an update of Ethical Considerations When ICE Moves to Dismiss Removal Proceedings Under the Doyle Prosecutorial Memo, published on May 9, 2022, available at https://blog.cyrusmehta.com/2022/05/ethical-considerations-when-ice-moves-to-dismiss-removal-proceedings-under-the-doyle-prosecutorial-discretion-memo.html

 

*Kaitlyn Box is a Senior 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

Supreme Court Agrees to Hear Constitutionality of Smuggling Statute That Could Impact Immigration Lawyers

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The Supreme Court has agreed to review the constitutionality of a smuggling statute under the Immigration and Nationality Act. United States v. Sineneng-Smith, No. 19-67. The statutory provision in question, INA §274(a)(1)(A)(iv),  permits a felony prosecution of anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew or recklessly disregarded “the fact  that such coming to, entry, or residence is or will be in violation of the law.”

INA §274(a)(1)(A)(iv), which involves encourage a non-citizen to reside in the United States in violation of law, is a companion to other related smuggling provisions such as “brings to” or “smuggling” (INA §274(a)(1)(A)(i)), “transportation” (INA §274(a)(1)(A)(ii)), and “harboring” (§274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete, the “encouraging” provision is far broader and can potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. This provision could thus also potentially reach ethical lawyers who advise and represent undocumented clients.

The Ninth Circuit in United States v. Evelyn Sineneng-Smith ruled last year that INA §274(a)(1)(A)(iv) was so broad and vague that it could criminalize speech protected under the First Amendment. The following examples were provided in the Ninth Circuit’s decision that could potentially constitute criminal conduct under this provision:

  • A loving grandmother who urges her grandson to overstay his visa by telling him “I encourage you to stay”
  • A speech addressed to a gathered crowd or directed to undocumented individuals on social media in which the speaker says something such as “I encourage all you folks out there without legal status to stay in the US! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization”
  • An attorney tells her client that she should remain in the country while contesting removal – because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed.

The government, on the other hand, argued that INA §274(a)(1)(A)(iv) should be read narrowly to target unscrupulous lawyers and unauthorized practitioners who dupe migrants into staying in the United States in violation of the law.  Despite the broadness of INA §274(a)(1)(A)(iv), the government asserted that it was not its intention to prosecute people in the above examples who were exercising free speech. Indeed, United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sinseneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She also got convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits conduct and a narrow band of unprotected free speech. Because the provision was so overbroad, the Ninth Circuit refused to construe it narrowly as the Third Circuit in DelRio-Mocci v. Connolly Properties had done by holding that encouraging or inducing an alien to reside in the United States did not mean just general advice but some more substantial assurance that would make someone lacking lawful status more likely to enter or remain in the United States.

The Supreme Court granted the government’s petition for a writ of certiorari. According to the Crimigration blog, the “Supreme Court’s decision to hear this case is … fascinating” as there was not really a circuit split. Typically, the Court agrees to hear a case when there is a sharp conflict in the lower courts regarding the proper interpretation of a statute. Here there is hardly a split between the Ninth Circuit in United States v. Sinseneng-Smith and the Third Circuit in DelRio-Mocci as the latter does not involve First Amendment. Instead, the Third Circuit’s holding was based on a private lawsuit claiming that an apartment property management company violated the Racketeer Influenced and Corrupt Organizations Act by encouraging undocumented people to reside in the United States unlawfully in their property as tenants. Sinseneng-Smith  claimed in opposition to the government’s certiorari petition that the government asserting that the circuits are in conflict is nothing more than an “attempt to conjure a limited circuit split.” It will also be interesting to see how Justice Gorsuch rules in this case as he is averse to laws that are void for void for vagueness as he did in demolishing “crimes of violence” in  Sessions v. Dimaya. Although the Ninth Circuit did not have to deal with the void for vagueness challenge as it found the statutory provision unconstitutional under First Amendment overbreadth analysis, both sorts of challenges might be of interest to Justice Gorsuch that might potentially  align him with the four liberal justices.

Whatever may have been the motivations of the Supreme Court to take up the case, how the Supreme Court will rule carries important implications especially for immigration lawyers. If the Supreme Court reverses the Ninth Circuit and upholds the constitutionality of the provision, would an immigration attorney advising unauthorized individuals to remain in the United States to seek adjustment of status at a later point in time, whenever they become eligible, be within the scope of the prohibition against encouragement or inducement under INA §274(a)(1)(A)(iv)? Granted that the facts in Sineneng-Smith are bad as she advised clients as an unauthorized practitioner, but even if Sineneng-Smith was a lawyer, she would have still been convicted under the provision. Even if this lawyer had provided more appropriate advice when filing the labor certification such that the clients would have to return to their home country for consular processing, assuming an I-601A would be approved based on extreme hardship to a qualifying relative, the lawyer could have still been potentially implicated by advising the unauthorized person to remain in the US during the processing of the labor certification, I-140 petition and the I-601A waiver.

It is indeed salutary that the government strenuously argued in United States v. Sineneng-Smith that it would not prosecute cases cited  in the above three examples or with respect to lawyers giving legitimate advice to clients. But there is no guarantee that if the statute remains intact an overzealous prosecutor cannot try to prosecute attorneys providing legitimate advice to their clients in other examples, as I have discussed with Alan Goldfarb in AILA’s practice advisory,  Executive Disorder: Ethical Challenges for Immigration Lawyers Under the Trump Administration. A lawyer may advise a client whose citizen child is turning 21 in two years to remain so that she can adjust status in the United States. Even if the client may not have a citizen child who is turning 21, there is a possibility that the client may marry a US citizen some day and likewise be eligible for adjustment of status. Alternatively, if this client entered without inspection and is not eligible for adjustment of status, he may be eligible to file an advance I-601A waiver application of the 3 or 10 year bar based on a qualifying relationship with the prospective citizen spouse, and return to the home country for consular processing upon the approval of the I-601A application. A lawyer who may competently advise the client to remain in the United States during the pendency of the I-601A application could get snared for encouraging the unauthorized client to remain in the United States in violation of the law. In yet another example, lawyers represent clients who have outstanding orders of removal and have not departed the United States. Failure to depart within 90 days after a removal order pursuant to INA §237(a) under INA §243 renders such conduct a criminal felony. However, even here, INA §243(a)(2) provides for an exception: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” The competent lawyer will advise the client with the removal order to remain in the United States while every effort is made to reopen the removal order. A person with a final order of removal may attempt to reopen a removal order after several years if the government consents to reopening and there is available relief against deportation. See 8 C.F.R. §1003.2(c)(iii); 8 C.F.R. §1003.23(b)(4)(iv). Yet, under INA §274(a)(1)(A)(iv) an ethical lawyer, who exercises great competence and diligence in representing a vulnerable client with a removal order, could get snared for encouraging the client to remain in the United States in violation of the law even if there is a game plan down the road to render the client’s stay lawful.

The most prudent approach is for a lawyer to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to clients if they to remain in the United States in violation of the law. Such an approach would also be prudent if the Supreme Court upholds the constitutionality of §274(a)(1)(A)(iv) even if the government has asserted in its pleadings that it will enforce the law in a limited manner. Regardless of whether §274(a)(1)(A)(iv) is upheld or not, a lawyer’s conduct should be guided by rules of professional responsibility. Significantly, ABA Model Rule 1.2(d) states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” Please note that this is only a Model Rule, and readers should check the analog to Rule 1.2(d) within the rules of professional responsibility within their own state.

In the immigration law context, a disciplinary authority would be hard pressed to conclude that a lawyer who advises an unauthorized client to remain in the United States due to the likelihood of benefiting at some point in the future would be engaging in conduct that is criminal or fraudulent. Still, there is still a possibility of criminal prosecution under the broad ambit of §274(a)(1)(A)(iv), and  a lawyer who practices within the confines of Model Rule 1.2(d) – such as presenting the legal consequences of remaining in the United States or not rather than explicitly advising the client to remain –  should be more insulated than a lawyer who does not.

 

 

 

Cyrus Mehta

The Ethics of Law Reform Activities Affecting Client Interests in Light of the Fairness for High Skilled Immigrants Act

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The Fairness for High Skilled Immigrants Act has divided the immigrant community as well as immigration attorneys. The bill seeks to eliminate per-country caps without expanding the number of visas in the EB categories.  The House version, HR 1044, has already passed with an overwhelming majority on February 7, 2019. The Senate version, S. 386, has not yet passed through unanimous consent.  A Senator has objected each time it has come up for unanimous consent. Senator Durbin is the latest Senator to object.

If the country caps are eliminated, the queue for Indian EB-2 and EB-3 beneficiaries will lessen substantially, which currently is several decades long. One Cato Institute study anticipates that the wait time could be 150 years.  The elimination of the per-country limits will allow visas to be taken up on a first come first served basis.  Those backlogged in the EB-2 and EB-3, mainly Indian nationals, are fervently hoping for S. 386 to pass. By eliminating the per-country limits, Indian nationals may ultimately face a wait time of just a few years as compared to several decades.  On the other hand, those from the Rest of the World (ROW) may face waiting times under the first come first served basis. Many are opposed to the passage of S. 386 as even waiting a few years will make them worse off than now. At present, they do not have any wait time in the EB-2 and EB-3 while Indians may wait for several decades.

Most immigration attorneys have clients from India and the rest of the world. Some attorneys are torn and are taking a neutral position. Other attorneys are opposing S. 386 while some are in support. Given the division among its members, AILA has taken a neutral position on the bill.

At issue is whether an attorney can ethically support or oppose S. 386, or take a neutral position, even though under any of these positions, some clients may benefit while others may not.

The starting point is ABA Model Rule 6.4 entitled Law Reform Activities Affecting Client Interests, which provides:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

Note that ABA Model Rule 6.4 is non-binding, and an attorney needs to also consult the analog of 6.4 within their state rule of professional conduct. Model Rule 6.4, which provides the analytical framework for this blog, explains that a lawyer can be a member of an organization, such as a bar association or a trade association, that is advocating for law reform even though it may affect the interests of the lawyer’s client, positively or adversely. While Model Rule 6.4 allows the lawyer to take a position even though it may affect the interests of the client, the lawyer is nevertheless required to disclose to the organization whether any decision materially benefited the client, but there is no need to identify the client. The requirement to disclose any material benefit to a client ought to be interpreted in a reasonable manner. AILA, for example, takes many positions that benefit the lawyer’s client, but if each lawyer were to make disclosure, it would become too impractical. Therefore, the reference to benefits in Model Rule 6.4 is, implicitly, to benefits unlikely to be obvious to the rest of the organization or leadership. Most of the time, the client benefits we deal with in AILA are obvious and widespread, such that repeated disclosure would be both pointless and unwieldy.

Let’s suppose a lawyer is a member of a trade association that advocates for an increase in visa numbers for the EB-5 category. This organization, which we will call “EB-5 Trade Association” is actively lobbying for an increase in the annual 10,000 limitation in the EB-5 by suggesting that some of the numbers can come from the 50,000 visas reserved under the Green Card Diversity Lottery Program. This lawyer, who has mainly EB-5 clients, also has clients who may benefit if they win a lottery under the Diversity Program. By advocating that the visa numbers in the Diversity Lottery Program be reduced and given to EB-5, if Congress amends the law, it will reduce the chances of this lawyer’s clients to win the lottery.  Still, under Model Rule 6.4, this lawyer can ethically advocate for the reduction in visa numbers in the Diversity Program in favor of the EB-5 category.

What if EB-5 Trade Association also advocates for a reduction in visa numbers in the family fourth preference category (F4) and the lawyer has clients who have I-130 petitions for some clients under the F4? Under Rule 6.4, a lawyer can even advocate for a reduction in the F4 too in favor of an increase in visas under EB-5 as a member of EB-5 Trade Association. As a practical matter, any advocacy of this sort will most likely include a proviso that existing F4 beneficiaries be protected and that the abolition of F4s would only occur for new applicants. Still, there is no way to predict the end result of such advocacy. In most instances, advocacy efforts do not result in a change of law. Or if there is a change in law, the end result may be very different from what was essentially advocated by the organization.

The next question is whether the lawyer’s advocacy efforts could create a conflict of interest? Let’s examine the Comment to Model Rule 6.4:

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.

The key take away from the Comment to Model Rule 6.4 is that a lawyer does not have a lawyer-client relationship with EB-5 Trade Association by virtue of being a member. Even if the lawyer is the head of a task force within EB-5 Trade Association actively putting forward position papers, it does not result in a lawyer-client relationship with the organization. However, the Comment to Model Rule 6.4 still cautions that “a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.”

Rule 1.7(a) states;

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In the context of the lawyer’s membership in the EB-5 Trade Association, there is no question of the representation of one client being directly adverse to another under Rule 1.7(a) (1). EB-5 Trade Association is not the lawyer’s client. However, under Rule 1.7(a)(2), there is a possibility that the lawyer’s representation may be materially limited to the F4 client by a personal interest of the lawyer. Let’s assume that the lawyer is so passionately involved in the EB-5 reform effort to take numbers from the F4 and give them to the EB-5 that the lawyer begins to abhor the F4 client and loses interest in representing the F4 client. The lawyer’s representation of the F4 client is now materially limited by the lawyer’s passionate zeal in bringing about EB-5 reform.

On the other hand, even if the lawyer is consumed by zeal in the EB-5 reform effort, under Rule 1.7(b)(1),  the lawyer can still represent the F4 client if the lawyer reasonably believes that she will be able to provide competent and diligent representation to the affected client. In most cases, that will be so, but if the lawyer develops an abhorrence toward the F4 client and fails to represent the client competently and diligently, the lawyer clearly has a personal interest conflict and must withdraw from that representation.

Model Rule 6.4 only speaks to reform efforts of the lawyer within the context of an organization. What about personal capacity lobbying or advocacy efforts by a lawyer? AILA is not taking a stand with respect to S. 386 and most lawyers are advocating one way or the other in their personal capacities. There is no comparable ethical rule like Rule 6.4 governing a lawyer’s personal capacity lobbying or advocacy efforts. However, one can use the same framework of Rule 6.4 in arguing that just as a lawyer can engage in law reform efforts as a member of an organization even if it materially affects the interest of a client, a lawyer can do so even in a personal capacity. The lawyer by virtue of doing so in a personal capacity would not have a disclosure requirement, as under Rule 6.4, if the reform effort materially benefitted a client.  Regardless, the lawyer must still be mindful of personal interest conflicts under Rule 1.7(a) (2) as illustrated above.

With respect to S. 386, whatever position one adopts, it is likely to adversely affect the interest of a client in the event that the lawyer has both Indian and rest of the world clients. By lobbying against S. 386 in favor of ROW clients, the lawyer’s advocacy adversely affect the interests of Indian clients who will not benefit if S. 386 does pass. Conversely, when the lawyer advocates for S. 386, the lawyer’s ROW clients could get adversely affected. Of course, the evaluation of harm to the client is not black and white. A lawyer who opposes S.386 is doing so in the hope that the bill will improve and include more visa numbers for all, although the likelihood of S.386 passing will lessen in today’s polarized environment and Indians will continue to remain backlogged in the per country caps with their children also likely to age out. A lawyer who favors S.386 realizes that while the bill is not perfect, this is an incremental first step where discriminatory per-country quotas get eliminated with the possibility of creating a fair system for all in the long run. Given other failed reform efforts over the past 10 years, this bill has the best chance of passage with the hope that it will serve as down payment for further reform such as adding more visas through not counting derivatives in the future (in the interest of full disclosure, this has been my reason for supporting an otherwise imperfect bill).

In the end, all of these positions that the lawyer may take with respect to the Fairness in Immigrant Worker Act are ethical – for, against or remaining neutral. In addition to any potential personal conflict of interest, the lawyer would also need to take business and reputational considerations into account, which are quite separate from the ethical consideration. Restrictionist organizations are also not supporting S. 386 for different reasons, and if the lawyer relies on the positions of these organizations in also advocating against S. 386, such as retweeting Breitbart twitter posts against the ill effects of Indian immigration,  the lawyer should be mindful of any reputational damage that may result through such tactics, including motivating USCIS to view H-1Bs from Indian IT firms more harshly.  If S. 386 passes, then all lawyers must come together to further improve the law (and there will surely be such an incentive when people other than Indians are in a waiting line), and if it does not pass, then all lawyers should still come together to improve the law for Indians. Note that even if the EB-2 and EB-3 ROW are current, the EB-1 for India, China or ROW are not current. The EB-5 too for China, Indian and Vietnam are not current.  The present system is broken and is badly in need for reform.

In conclusion, a lawyer can adopt different positions regarding the Fairness for High Skilled Immigrants Act  even if it may not immediately benefit all their clients.  If a lawyer is constrained in undertaking law reform efforts either through an organization or in a personal capacity, it would surely chill the lawyer’s ability to take positions on proposed legislation as well as undermine the lawyer’s exercise of free speech under the First Amendment.