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To What Extent Can Immigration Practitioners Ethically Rely on ChatGPT to Aid Their Practice?

September 5, 2023/0 Comments/in Blog/by Cyrus Mehta

To what extent can ChatGPT assist immigration lawyers in their immigration practice? What are the ethical pitfalls if a lawyer relies on ChatGPT?

There is one case that was widely publicized all over the world In Mata v. Avianca Inc, Judge Castel in the Southern District of New York sanctioned two New York lawyers and their law firm for $5000 for submitting a brief citing fake cases generated by ChatGPT. The brief was submitted in opposition to a motion to dismiss by Avianca Airlines after Roberto Mata sued the airline for incurring an injury during a flight to JFK, New York. The 10-page brief cited more than half a dozen relevant court decisions such as Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, Varghese v. China Southern Airlines, with a learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.” None of these cases existed and were made up by ChatGPT. Judge Castel pointed out that “[Varghese v. China Southern Airlines] shows stylistic and reasoning flaws that do not generally appear in decisions issued by United States Courts of Appeals. Its legal analysis is gibberish.” Judge Castel further noted that he would not have sanctioned the attorneys if they had immediately come clean when confronted with the fake cases generated by ChatGPT. Instead the lawyers “doubled down and did not begin to dribble out the truth” for a month and a half after the cases were brought to the court’s attention. Rather than accept an apology from the lawyers, in addition to the $5000 fine, Judge Castel ordered that the lawyers inform their client and the judges whose names were wrongfully invoked of the sanctions imposed.

If a brief with made up cases and citations generated by ChatGPT is submitted in Immigration Court or with the USCIS, EOIR and DHS Disciplinary Counsel can impose sanctions under the disciplinary grounds articulated in 8 CFR 1003.102. For instance, a practitioner can be sanctioned for knowingly or with reckless disregard making false statements under 8 CFR 1003.102(c), engaging in frivolous behavior under 8 CFR 1003.102(j), engaging in conduct that is prejudicial to the administration of justice or undermines the integrity of the adjudicative process under 8 CFR 1003.102(n), failing to provide competent representation under 8 CFR 1003.102(o), failing to act with reasonable diligence and promptness under 8 CFR 1003.102(q) or repeatedly filing briefs and other pleadings that reflect little or no attention to the specific factual or legal issues applicable to a client’s case, but rather relying on boilerplate language under 8 CFR 1003.102(u). Of course, state bar disciplinary authorities where the lawyer is admitted can also start an investigation under that state’s analogous rules governing the professional conduct of attorneys and impose discipline.

Even before the advent of ChatGPT, lawyers have been disciplined for filing inaccurate or sloppy briefs. For instances, in Coboy v. US Small Business Administration, 992 F.3d 153 (3d Cir 2021), the court sanctioned a lawyer for a sloppy cut and paste job. “The relevant extract from the Third Circuit’s holding is worth noting:

It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.

This does not mean that the lawyer should completely shun AI technology in their practice. The lawyer could use an AI generated response as the starting point but should not be taking for granted that ChatGPT will always be accurate. In an ABA practice advisory, “Future Proofing: A Present Look at ChatGPT in Your Future” by Dan Pinnington and Reid Trautz, the authors provide the example of how an immigration lawyer has been testing ChatGPT for his busy practice:

Miami immigration lawyer Michael Harris has been testing ChatGPT for his busy practice by seeing how it could write analytical essays or letters typically used in his practice. Harris reports that he immediately was impressed that it could write detailed letters with the same type of instruction he would give a paralegal or associate lawyer. “If the draft had weaknesses, I would refine my instruction and the AI was able to further adjust. I don’t think ChatGPT can yet write a complex memorandum of law, but it can help draft detailed fact statements when given the right in put prompts.

In an AILA advisory, “What is ChatCPT and Why Does It Matter to Immigration Lawyers?” by Michele Carney, the author provides this valuable insight on how ChatGPT might be able to assist the immigration lawyer:

Think of ChatGPT as a blank piece of paper that can populate ideas. ChatGPT can get the ball rolling on ideas as it uses a predictive model, and the more information the lawyer inserts into the query, the more responsive the answer will be. The lawyer can get several responses from ChatGPT, and then perhaps the writer’s block will be lifted, and the lawyer will have a springboard from which to draft a document.

I asked ChatGPT to see whether it could help me draft a letter in support of an O-1B for an Indian chef. This was my question:

Can you assist me in drafting a letter in support of an O-1B petition for a prospective chef of an Indian restaurant in New York who has gained acclaim in India for his innovations in Mughlai and Dum pukht cuisine. Please also provide some background on the origins of Mughlai and Dum pukht cuisine.

This was ChatGPT’s response:

Certainly, here’s a letter in support of an O-1B petition for a prospective chef specializing in Mughlai and Dum Pukt cuisine, along with some background on the origins of these cuisines:

[Your Name] [Your Title] [Restaurant Name] [Restaurant Address] [City, State, ZIP Code] [Date]

[USCIS Address] [City, State, ZIP Code]

Re: O-1B Visa Petition for [Prospective Chef’s Full Name]

Dear Sir/Madam,

I am writing to wholeheartedly support the O-1B visa petition on behalf of [Prospective Chef’s Full Name], an extraordinarily talented chef from India, whose culinary prowess and innovative contributions to Mughlai and Dum Pukt cuisine have earned him accolades and acclaim in his home country.

Mughlai Cuisine, originating during the Mughal Empire’s reign in India, represents a culinary tradition characterized by its opulent flavors, aromatic spices, and meticulous preparation methods. This culinary heritage is a testament to the grandeur and refinement of the Mughal courts. Mughlai cuisine is celebrated for its use of cream, yogurt, and an array of spices, resulting in dishes of unparalleled richness and taste. The hallmark of Mughlai cuisine lies in its ability to transform ordinary ingredients into extraordinary culinary masterpieces.

Dum Pukt Cuisine, another gem in the treasure trove of Indian gastronomy, emerged from the royal kitchens of the Mughal emperors. The term “Dum” translates to “breath” in Persian, symbolizing the slow, luxurious breath that food takes as it is carefully slow-cooked in a sealed container. This technique allows flavors to meld and intensify, resulting in dishes of exquisite depth and complexity. Dum Pukt cuisine is a living testament to the legacy of generations of chefs who have preserved and perfected this timeless culinary art.

[Prospective Chef’s Full Name] has not only embraced these culinary traditions but has also elevated them to new heights through his innovative techniques and creations. His culinary journey reflects a profound understanding of the roots and history of Indian cuisine, coupled with a relentless passion for pushing the boundaries of flavor and presentation.

His achievements include:

Innovative Culinary Creations: [Prospective Chef’s Full Name] consistently pushes the boundaries of traditional Mughlai and Dum Pukt cuisine, reimagining classic dishes with contemporary twists that have captivated diners and critics alike.

Acclaim in India: He has received widespread recognition in India, earning accolades and awards for his culinary innovations.

Cultural Ambassador: Through his culinary artistry, [Prospective Chef’s Full Name] has effectively served as a cultural ambassador, promoting Indian cuisine and traditions both domestically and internationally.

Mentorship: He has mentored and trained aspiring chefs, ensuring the preservation and continued evolution of these culinary traditions.

Enclosed with this letter, you will find the necessary documentation, including letters of support from renowned culinary experts, evidence of [Prospective Chef’s Full Name]’s significant contributions to the culinary industry, and proof of his acclaim in India.

We kindly request that you consider this petition favorably and grant [Prospective Chef’s Full Name] the O-1B visa, which will allow him to bring his extraordinary talents and culinary innovations to our restaurant in New York, enriching our city’s culinary landscape and further enhancing cultural exchange.

Thank you for your attention to this matter, and we look forward to the possibility of welcoming [Prospective Chef’s Full Name] to the United States.

Sincerely,

[Your Name] [Your Title] [Restaurant Name] [Contact Information]

If the practitioner submits this letter by filling in the blanks, he or she will likely not be providing competent and diligent representation. If this is going be the main letter in support of the O-1B petition, it does not set forth the evidentiary criteria for proving distinction in the arts under 8 CFR 214.2(o)(3)(iv) and how this chef may meet three out of the six evidentiary criteria. This AI generated draft should only serve as the opening for a more detailed letter pertaining to how the chef can qualify for O-1B classification, and it would require more research and investigation about the chef’s acclaim and achievements in Mughlai and Dum pukht cuisine. I give credit to ChatGPT that it gave me some idea of Mughlai and Dum pukht cuisine although note that ChatGPT spelt it as Dum pukt rather than Dum pukht, which is how I spelt it. Perhaps, this AI generated letter might be more suitable as a sample template from a peer of the chef who writes a recommendation rather than the main letter brief summarizing the evidence and establishing how the chef meets the chef meets the O-1B visa standards. If a paralegal is relying on ChatGPT to draft a letter in support of an O-1B petition, it would behoove the lawyer to supervise the paralegal and ensure that the paralegal is not solely relying on a document generated by ChatGPT. If the practitioner carelessly submits the letter as is without even filling out the blanks, it would be tantamount to a frivolous filing. The lawyer should also be aware that ChatGPT can hallucinate and generate gibberish as it did in Mata v. Avianca.

While a document generated by AI could potentially lift writer’s block, it should only be the starting point for the lawyer to further investigate the facts and research the law. Submitting a letter generated by ChatGPT without further reworking could potentially result in sanctions for the lawyer under the disciplinary grounds in 8 CFR 1003.102 and under the relevant state bar rules of professional conduct. Even if the lawyer escapes sanctions, the USCIS may be able to detect that the letter was generated by AI and may not give it the same weight.

A final word on confidentiality. There is concern that the data of a client provided to ChatGPT will not be anonymized and kept confidential, and may thus violate ABA Model Rule 1.6. However, when I asked ChatGPT this question, this was its answer:

Yes, I can assure you that any information you provide, including the date of a client for an O-1B petition, will be kept confidential and anonymized. I don’t have the capability to store or recall personal data from one interaction to the next, and I am designed to respect user privacy and confidentiality. Your data and questions are not stored or used for any purpose beyond the current conversation. Your privacy and the security of your information are of utmost importance. If you have any concerns about privacy or data security, please feel free to let me know, and I’ll do my best to address them.

Notwithstanding ChatGPT’s assurance of maintaining confidentiality, I would still get the consent of the client if I might provide their data to ChatGPT in the hope of generating a more specific letter in support of the O-1B petition.

As final experiment, I gave ChatGPT data about Marcus Samuelsson who is an Ethiopian-born Swedish-American celebrity chef and is not my client. Nor is the Aquavit restaurant my client. Perhaps, ChatGPT could provide a better letter if I gave it more specific information about a particular public figure like Mr. Samuelsson and the restaurant that would sponsor him. I asked the following question:

Assuming that Marcus Samuelsson will hypothetically apply for an O-1B visa, please draft the letter in support of the O-1B petition that Aquavit will file on his behalf demonstrating that he meets the evidentiary standards under 8 CFR 214.2(o)(3)(iv)

This is how ChatGPT responded:

Your Name] [Your Title] Aquavit Restaurant [Address] [City, State, ZIP Code] [Date]

U.S. Citizenship and Immigration Services [Service Center Address] [City, State, ZIP Code]

Re: O-1B Visa Petition for Marcus Samuelsson

Dear Sir/Madam,

I am writing this letter in support of the O-1B visa petition on behalf of Mr. Marcus Samuelsson, a renowned chef and culinary artist, who we are proud to have as a valuable member of our team at Aquavit Restaurant. We firmly believe that Mr. Samuelsson meets and exceeds the evidentiary standards outlined in 8 CFR 214.2(o)(3)(iv) for an O-1B visa, and we are enthusiastic about his continued contributions to the culinary world in the United States.

Mr. Samuelsson’s exceptional achievements in the field of culinary arts have earned him national and international acclaim. He has demonstrated extraordinary ability and expertise in his craft, distinguishing himself as a culinary innovator and influencer. His contributions to our restaurant and the broader culinary community have been nothing short of remarkable.

To meet the regulatory criteria for the O-1B visa, Mr. Samuelsson can provide the following evidence:

Awards and Recognitions:

Samuelsson has received numerous prestigious awards and accolades throughout his career, including multiple James Beard Awards, Michelin stars, and recognition in the culinary industry’s most respected publications.

Critical Acclaim:

His culinary creations have consistently garnered critical acclaim, with glowing reviews from renowned food critics and journalists.

Expert Appearances:

Samuelsson has been invited to participate as a guest judge on top culinary television shows, further demonstrating his prominence in the field.

Original Contributions:

He has made significant original contributions to the culinary arts, introducing innovative techniques, flavors, and concepts that have influenced the industry.

International Standing:

His influence extends beyond national borders, as he has represented the United States on the global culinary stage and has been invited to collaborate with chefs from various countries.

Industry Leadership:

Samuelsson is recognized as a leader in the culinary world and has served as an inspiration to emerging chefs, mentoring and supporting them in their careers.

Prominent Partnerships:

His collaborations with leading culinary institutions, world-famous restaurants, and renowned chefs have solidified his status as a prominent figure in the culinary world.

We believe that Mr. Samuelsson’s achievements, expertise, and contributions to the culinary arts unquestionably meet the criteria set forth in 8 CFR 214.2(o)(3)(iv) for the O-1B visa. We are confident that his continued presence in the United States will enhance our culinary landscape, further promote cultural exchange, and inspire aspiring chefs.

We respectfully request that you grant Mr. Samuelsson the O-1B visa, allowing him to continue sharing his extraordinary talents with the American public and contributing to our vibrant culinary scene. We appreciate your time and attention to this matter and are prepared to provide any additional documentation or information that may be required to support this petition.

Thank you for considering Mr. Samuelsson’s O-1B visa application. If you have any questions or need further information, please do not hesitate to contact me at [Your Contact Information].

Sincerely,

[Your Signature] [Your Name] [Your Title] Aquavit Restaurant [Phone Number] [Email Address]

The letter that ChatGPT generated did not meet my standards. It was still canned and used the same verbiage from the letter that it gave me for the Indian chef who specialized in Mughlai and Dum pukht cuisine. The letter was lacking in detail about Mr. Samuelsson’s achievements, which are widely accessible on the internet. A lawyer who is required to provide competent and diligent representation needs to substantially rework and rewrite an AI generated letter if it will be used in support of an O-1B petition.

Ethical Considerations when ICE Moves to Dismiss Removal Proceedings under the Doyle Prosecutorial Discretion Memo

May 9, 2022/0 Comments/in Blog/by Cyrus Mehta

By Cyrus Mehta and Kaitlyn Box*

On April 3, 2022 the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle issued a memorandum (“the Doyle memo”) which empowers 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 new policy is 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 is to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

For cases where removal proceedings have not yet been initiated, the Doyle memo encourages ICE attorneys to consider not filing a Notice to Appear (NTA). If an NTA has already been issued, the Doyle memo prescribes filing a motion to dismiss the case, whether or not the noncitizen consents to the dismissal. The memo also outlines some of the other tools ICE prosecutors can employ as an exercise of discretion, including stipulations to issues or relief, continuances, not pursuing appeals, joining in motions to reopen, and administrative closure, which temporarily halts removal proceedings by taking a case off a court’s docket for the time being. However, the Doyle memo states that OPLA’s strong preference is to remove nonpriority cases from the docket permanently through dismissal or similar means, so that resources can instead be devoted to priority matters.

Some of the guidance provided in the Doyle memo will provide helpful relief to individuals in removal proceedings, or individuals who have not yet been placed in proceedings, the memo also raising some ethical conundrums for practitioners of immigration law. As mentioned above, the Doyle memo authorizes ICE prosecutors to file motions to dismiss nonpriority cases, even if the noncitizen does not agree with the dismissal. If an individual in a removal proceeding 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. 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 just the applicable regulations but also the Doyle memo. 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.

The Doyle memo also encourages ICE attorneys to employ other tools in exercising prosecutorial discretion, such as filing joint motions to dismiss. 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.

The Doyle memo states that OPLA 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. Immigration attorneys should inform their clients of the impact that an administrative closure would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure 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 methods for exercising prosecutorial discretion suggested in the Doyle memo could 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 initiative by the ICE prosecutor under the Doyle memo 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 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.

Ethical Dimensions to Federal Court Litigation in Immigration Matters

January 21, 2020/0 Comments/in Blog/by Cyrus Mehta

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.

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

October 21, 2019/0 Comments/in Blog/by Cyrus Mehta

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.

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

September 30, 2019/0 Comments/in Blog/by Cyrus Mehta

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.

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

July 16, 2018/0 Comments/in Blog, uncategorized/by Cyrus Mehta

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.

EB-5 Green Card, Ethics and Trump

May 22, 2017/0 Comments/in Blog/by Cyrus Mehta

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.

The Ethical Role of a Lawyer Under a Trump Administration

December 19, 2016/0 Comments/in Blog/by Cyrus Mehta

Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. 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.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “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 the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is 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 the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “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.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen. Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11^th Cir. 2009) the “encouraging” provision is more broad based and could 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. In U.S. v. Oloyede, 982 F.2d 133 (4^th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.

Were the DOJ Lawyers Really Unethical in Texas v. USA?

June 4, 2016/0 Comments/in Blog/by Cyrus Mehta

Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.

Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomsky does not even think the DOJ lawyers did anything wrong.

I completely agree. Let’s look at Rule 3.3 of the American Bar Association Model rules of Professional Conduct and the corresponding Texas Disciplinary Rules of Professional conduct, which Judge Hanen used, along with a fair sprinkling of dialogs from popular films, for finding that the DOJ lawyers were not truthful to the court. One of the cardinal ethical cannons is that a lawyer has a duty of candor to a tribunal. ABA Model Rule 3.3 provides in relevant part:

a) A lawyer shall not knowingly:

1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

The relevant potions of the Texas version of Rule 3.3 are similar:

a) A lawyer shall not knowingly:

1) Make a false statement of material fact or law to a tribunal

2) Fail to disclose a fact to as tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

………………..

5) offer or use evidence that the lawyer knows to be false.

In order for a lawyer to violate Rule 3.3, he or she must have knowingly made a false statement to the tribunal. Was there such a knowing violation of Rule 3.3 here?

On June 15, 2012, the Obama administration announced DACA that allowed young people who came to the United States prior to the age of 16 and had lived continuously since June 15, 2007, and were not in a lawful status, to be granted deferred action. On November 20, 2014, DHS Secretary Jeh Johnson issued a memo expanding DACA by changing the eligibility criteria to cover those who had come to the United States prior to January 1, 2010 instead of June 15, 2007 and by removing the maximum age limit of 31 (“Johnson Memo”). The Johnson Memo also lengthened the deferred action time from two to three years. The Johnson Memo further granted deferred action to parents of US citizens or resident children, known as the Deferred Action for Parent Accountability (DAPA), if they had arrived into the United States on or before January 1, 2010.

A group of states challenged the Johnson Memo in Texas v. USA by filing in a court in Brownsville, TX, where Judge Hanen sat who had already expressed strong views against the Obama administration on immigration. Judge Hanen granted a preliminary injunction on February 16, 2015 blocking DAPA and expanded DACA. Much has already been written to rebut the conclusions in this flawed decision, and the further flaw in the Fifth Circuit’s affirmation of Judge Hanen’s preliminary injunction. The preliminary injunction order did not expressly block the original DACA 2012 program. Qualified applicants thus continued to apply for DACA 2012 benefits. Under the terms of the Johnson Memo, qualified applicants under DACA 2012 started receiving grants of deferred action for 3 years instead of 2 years as of November 24, 2014.

Prior to the preliminary injunction of February 16, 2015, in conversations between Judge Hanen and DOJ attorneys, the DOJ attorneys indicated to the court that USCIS had not taken any actions pursuant to the Johnson Memo. Although actions had been taken since November 24, 2014 to grant three year deferred action periods rather than two years, those stemmed from the DACA 2012 program. They were also well publicized. The expanded DACA, which brought forward the entry date from June 15, 2007 to January 1, 2010, was to take effect on February 18, 2015. Thus, when DOJ attorneys denied that the government had not taken any actions regarding expanded DACA, it was well conceivable that issuing three year deferred action periods instead of two years were actions stemming from the DACA 2012 program and had nothing to do with the expanded DACA program, which had not gone into effect.

After the preliminary injunction was issued, which applied to “expansions (including any and all changes)” to DACA 2012, the DOJ filed an Advisory indicating that out of an abundance of caution it was informing the court that it had granted three year periods of deferred action under the original DACA 2012 guidelines in the event of any misunderstanding.

Given this lack of clarity, as well as the fact that DACA 2012 was never the subject of the lawsuit, could the DOJ attorneys have knowingly made a false statement to be sanctioned under Rule 3.3? This Ethics Committee of the American Immigration Lawyers Association first questioned whether this was so in 2015, but it has become even more important to assert whether there was a Rule 3.3 violation Judge Hanen’s order.ABA Rule 1.0(f) defines the terms “knowingly,” “known” or “knows” as “actual knowledge of the fact in question.” Rule 1.0(f) goes on to state that a “person’s knowledge may be inferred from circumstances.” When the DOJ attorneys were giving an assurance to the court about no action being taken, it could have well been understood to be in relation to recipients who would have become eligible under the expanded DACA, which had not gone into effect., Even the expansion of the deferred action term from two years to three years, if referred to by Judge Hanen, could have meant to relate to those recipients who would become eligible under the expanded DACA and not relating to the granting of a three year term to qualified recipients under the DACA 2012 program, which had nothing to do with the proposed preliminary injunction. It should be noted that since DACA 2012 was not part of the preliminary injunction, the administration could have fashioned any new benefits for them, and could have theoretically issued a separate guidance memorandum articulating three year renewals rather than two years, separate from the guidance in the Johnson Memo.

Rule 3.3 also allows a lawyer to correct false statements that may have previously been made to the tribunal, which the DOJ did through the Advisory seeking clarification. Unfortunately, Judge Hanen did not view this as clarification but as a further admission that the government lawyers had deceived the court. It is hard to imagine that DOJ lawyers would have knowingly and intentionally deceived the court when three year work permits were being publically announced and given out to those eligible under DACA 2012, and it was a well publicized fact. There was nothing to hide, and it is inappropriate for a judge to use Rule 3.3 to club not one lawyer but thousands when it was not so clear that knowing false statements had been made to the court.

Although government lawyers oppose private immigration lawyers, and often take unreasonable positions against our clients we defend, Judge Hanen’s reprimand should not be cause for celebration as such a fate could well befall a private lawyer. When there are issues of differing interpretation, involving complex immigration law and policy in hotly contested litigation, it is extremely problematic to use Rule 3.3 to accuse a lawyer for knowingly making false statements to a court or tribunal. While it is one thing for a lawyer to lose a case, it is quite another for a judge to also sanction a lawyer for ethical violations when there was no clear dividing line between an immigration program such as DACA 2012 that was not being enjoined and an expanded version of it that was being enjoined. This is especially so and rather precipitous when the case is still pending at the Supreme Court in United States v. Texas and the issues are yet to be resolved. And when a lawyer seeks to clarify the ambiguity, as required under Rule 3.3, a judge should not use that as a basis to accuse the lawyer for deliberate deception. Handing out sanctions for ethical violations in such a ham handed manner not only unfairly undermine a lawyer’s reputation, but create a chilling effect, and in this case demonstrates Judge Hanen’s bias and hostility towards only one of the parties in Texas v. USA.

On June 3, 2016, the government filed a mandamus action against the lower district court for exceeding its scope, with an accompanying request for a stay, essentially asserting that its lawyers did not intentionally intend to deceive the court, and any perception by Judge Hanen that there was a Rule 3.3 violation was due to miscommunications regarding the scope of the preliminary injunction. The government further complains that there was no hearing prior to the issuance of these unusual sanctions. This is a new front in the government’s battle against a district court judge that has blocked President Obama’s deferred action program, and has also imposed an unusual reprimand for alleged ethical violations. In this instance, it is hoped that the government wins the day on both fronts. A dual victory will allow deserving undocumented immigrants to remain in the United States and it will also nullify the bizarre ethics sanctions of a hostile judge, thus sending a message that ethics rules should not be arbitrarily used to club well intentioned lawyers in hotly contested litigation.

(The views in this blog are the personal views of the author, and do not necessarily reflect the views of any organization that he is part of)

Will Avvo Disrupt Immigration Law Practice Like Uber Has Disrupted Taxis?

March 25, 2016/1 Comment/in Blog/by Cyrus Mehta

Plenty of traditional industries are being disrupted these days. Uber has disrupted the taxi industry and Airbnb has done the same with the hotel industry. The legal industry is not immune from disruption and there are likely to be seismic changes in the practice of law in the near future. This has already happened with Legal Processing Outsourcing, but further changes are expected.

With the proliferation of low cost do it yourself websites and services, the American Bar Association adopted the ABA Model Regulatory Objectives for the Provision of Legal Services on February 6, 2016, which includes among its objectives the protection of the public along with the meaningful access to justice as well as affordable and accessible legal services. The ABA resolution gives a green light to state bar regulators to implicitly give recognition to such services by regulating them, resulting in more lawyers collaborating with Non-Legal Organizations (NLOs). This in turn would challenge the current ethical framework that precludes lawyers from fee splitting or entering into partnerships with non-lawyers under ABA Model Rule 5.4.

Avvo has already started challenging the status quo by rolling out Avvo Legal Services, which offers a fixed-fee and limited scope legal services, including immigration services, through a network of attorneys. One of the immigration services Avvo offers is a “family based green card” for $2995 that involves preparing and filing the requisite forms, but no representation at an adjustment of status interview or to respond to a Request for Evidence. The consumer pays $2995 to Avvo directly, but may choose the attorney in the Avvo network that they want to work with. That attorney has 24 hours to directly contact the consumer/client, and do the work as they would any other client. When the work is completed, Avvo releases the funds to the attorney, and in a separate transaction withdraws from the attorney’s account a $400 marketing fee [revised 3/26/2016].

Under this unique business model, the immigration attorney is contracting with Avvo as a vendor to gain clients and business through its superior marketing reach. Avvo views this new service as benefitting both lawyers and clients. The lawyer will rely on Avvo to get business and also get paid easily, without keeping track of billable hours or worrying about trust accounts. It would also help lawyers build their practices as it would lead to further work by the same client, according to Avvo. The client is also benefitted as s/he will get access to a legal service that is both affordable and fixed, and will also understand exactly what legal service is being purchased. It should be noted that while ABA Model Rule 1.2(c) allows a lawyer to limit representation and unbundle services, the limitation must be reasonable and the client must give informed consent.

The key ethical issue that first strikes the astute observer is whether this is an impermissible fee splitting agreement between the attorney and Avvo. Josh King, Avvo’s general counsel, has argued that it is not fee splitting because the marketing fee is paid as a separate transaction and is not a percentage of the legal fee. Is this any different from paying for Google AdWords or a fee to run a radio commercial? On the other hand, the client pays Avvo $2,995 and Avvo indirectly [revised 3/26/2016] keeps a part of it, which is a percentage of the fee that the client has paid towards processing the green card case. And so, if something looks like a duck, swims like a duck and quacks like a duck, it is indeed a duck; and in this instance, it is indeed fee splitting. Avvo was started by Mark Britton, former General Counsel to Expedia. Avvo is like Expedia—if I am buying an airline ticket through Expedia I am paying Expedia but they are sending it to the airline minus a fee for the service. Whether ABA Model Rule 5.4 allows this, we can’t say for sure, but Avvo is betting several hundred thousand dollars that they do. Avvo also claims that the consumer is not being harmed and any restriction to its business model could also be an infringement of lawyer free speech. The jury is not yet out on whether this business model is ethical, but there are many immigration attorneys who are part of the Avvo network to provide an assortment of unbundled immigration legal services.

Will Avvo disrupt the traditional legal model where a client seeks out an immigration lawyer based on his or her reputation rather than on a web-based network, and the attorney sets the fee? This author bets that Avvo is unlikely to disrupt the traditional model, at least not as yet, even if it is ethical. A “family-based green card” is not like buying an airline ticket, where you know that a seat in economy be it in row 25 or row 45 will be the same. If the airplane goes through turbulence, the ride will be equally bumpy in any seat of the aircraft. But unlike an airline ticket, there are many traps and pitfalls in family-based immigration practice, even when it appears relatively straight forward. One’s eligibility for adjustment of status based on a marriage to US citizen spouse is also subject to variables. If the client’s arrival in the US was not through a straight forward inspection at a port of entry, then the case immediately becomes more complex. If the client is potentially inadmissible for a host of reasons, including potentially claiming to be a US citizen when seeking employment many years ago, that too would throw out of the window the Avvo $2,950 the family based green card package. The client will disappointingly realize that the Avvo family green card package and price is virtually meaningless, and would rather seek out an attorney who has the reputation and expertise to handle difficult family-based immigration cases. There are other variations even if the client appears prima facie eligible to adjust status. The marriage may have been bona fide at its inception, but the spouses are quarreling and living separately, and still desire to cooperate on the green card for the sake of the children. This too requires the agile immigration attorney to appropriately advocate for the client by educating the USCIS examiner, who may at first cry foul, that the marriage presently need not be viable so long as it was bona fide at its inception. See Matter of Boromand, 17 I&N Dec. 450 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

If I am proved wrong and Avvo catches on and attorneys on Avvo attract more clients than those who are not, then others can do it better than Avvo rather than remain complacent like Blackberry did, especially a non-profit bar association that may have reputed attorneys on its roster, and be able to provide the adequate disclaimers and caveats. But if there are too many disclaimers and caveats, which is generally the case with an immigration matter, then I can still see a client preferring to seek out the best attorney for his or her complex family-immigration case, where a fixed price may not be an issue, rather than resort to the Avvo model. There are bound to be other disruptions in the legal industry, such as non-lawyers being licensed to handle certain immigration cases or perhaps someday robots with artificial intelligence displacing the lawyer, but Avvo may not be as disruptive to immigration lawyers as Uber has been to taxi drivers.