Tag Archive for: Removal Proceeding

Cyrus Mehta

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

/0 Comments/in /by

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.

 

Cyrus Mehta

The Ethical Obligations of a Lawyer Who Represents a Three Year Old Child

/0 Comments/in /by

There has been a justifiable sense of shock and outrage after a senior immigration judge testified in a legal proceeding that three and four year olds could represent themselves in complex removal proceedings. This is precisely what Immigration Judge Weil said in a deposition on behalf of the Department of Justice:

I’ve taught immigration law literally to three year olds and four year olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.  

The Immigration Judge repeated this same assertion two more times during the deposition. These ludicrous assertions have now gone viral, and there has been much eloquent protest, although immigration attorney Amber Weeks’ takes the cake when she tried to test these assumptions on her own three year old child, and this is what she found:

I happen to have a three year old daughter, so I interviewed her to test the theory of whether she could answer even the most basic questions to represent herself in immigration court. Where were you born? Where were your parents born? Where do you live? Where would you like to live? Not legal questions, but just basic questions that a kind and thoughtful judge would want to know before deporting a child (See first video below.) Although hilarious, her candid answers are heart-wrenching when I consider where unrepresented children in immigration court will end up.

Not much has been written in the aftermath of this incident about a how a lawyer ought to handle this situation, especially if he or she had a three year old as client. Unfortunately, at the outset, most unaccompanied children are not provided legal representation, and even if they are older than three year old, ought to be provided with a lawyer as they are many times more vulnerable than an adult. The Board of Immigration Appeals in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), has already held that for a respondent to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.  The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses. When a respondent in removal proceedings is incapable of participating, the court must provide adequate safeguards, including ensuring legal representation.  It is readily obvious that a minor may not be able to participate in a proceeding; but unfortunately the Matter of M-A-M- safeguards are not being applied to minors who need them the most, especially a three year old!

Assuming the three year old has the privilege of having a lawyer, what are the lawyer’s ethical obligations when representing such a client? The lawyer is guided by ABA Model Rule 1.14, as adopted in state bar ethical rules of professional conduct:

Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Rule 1.14, at the outset, instructs a lawyer to maintain a normal lawyer-client relationship as far as possible. Thus, to the extent that a client with diminished capacity is capable of making competent decisions, including a child, the lawyer must follow them. Comment 1 to Rule 1.14 states, “For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.”   A lawyer may seek help from a family member or others in communicating with a client with diminished capacity; and according to Comment 2 to Rule 1.14, the presence of such persons does not affect the applicability of the attorney-client privilege. When a lawyer represents a child, all the other ethical obligations that a lawyer owes to a client trigger, such as the duty to provide competent representation (Rule 1.1), be diligent (Rule 1.3), avoid conflicts of interest (Rule 1.7) and to adequately communicate with the client (Rule 1.4). In fact, there is a heightened duty to communicate with a child client in a way that the child will be able to properly understand the removal proceeding and make informed decisions.

Still, just because a child is older does not absolve the lawyer to ensure that the child is not at risk of harm. Even a twelve year old child, especially one who has suffered trauma or abuse, is extremely vulnerable and is at risk of being harmed by not being capable of making appropriate decisions in a removal hearing. Of course, compared to a twelve year old, a three year old will be far more vulnerable.  Under the next prong, 1.14(b), a lawyer is allowed to take reasonable protective action on behalf of the client when the lawyer reasonably believes that the client is at risk of harm and cannot adequately act in his or her own interest. This is doubtlessly going to apply to any minor, but more so with a three year old.  The lawyer may consult with parents, other family members or individuals and entities that have the ability to protect the child, and if necessary, even seek the appointment of a guardian ad litem or guardian.

A three year old is likely to be eligible for Special Immigrant Juvenile (SIJ) relief, assuming a court can make a finding of neglect or abandonment based on unification with one or both parents not being viable, or if the child has been placed in the custody of a state agency or individual or entity.  Assuming the child is not eligible for SIJ, and there is no other relief against removal, the attorney representing the child must make every effort to invoke the protections under Matter of M-A-M, and argue that such a child is unable to comprehend the nature of the proceeding and either seek termination or administrative closure of the removal proceeding. Still, the attorney, as part of taking protective action, can seek asylum on behalf of the child, assuming that there is objective evidence that the child will fear harm or the child has already suffered past persecution based on one of the protected grounds for asylum. Even if a child will  not be able to testify credibly, the BIA in Matter of J-R-R-A, 26 I&N Dec. 609 (2015) allowed a client with diminished capacity to nevertheless testify regarding his or her subjective fear, while there was credible objective testimony. This can get further complicated when the child’s parent or guardian wishes to take the child back to the home country, and the lawyer knows that the child will be harmed in that country. When a child is twelve, it is easier for the lawyer to maintain a normal lawyer-client relationship,  and abide by that child’s informed decision. It becomes much harder when the child is only three  years old. Under these circumstances, the lawyer must take protective action by seeking the intervention of child protection agencies and the like. Comment 9 to Rule 1.14 clarifies: “In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.” Of course, all this begs the question as to why a non-citizen child should be put into adversarial removal proceedings  in the first place where a hostile government lawyer can sharply cross examine a child, and there are no readily available provisions for the appointment of counsel,  a guardian ad litem or child advocate.

Although the current governmental policy of not providing a child with legal representation in an imperfect immigration court setting constitutes a horrific gap in due process, the presence of a lawyer while an improvement does not necessarily solve the child’s conundrum who is in removal proceedings. Rule 1.14 does not provide an attorney with all the answers, and is far from perfect. The attorney must use the tools provided under Rule 1.14, along with all the other ethical rules, AILA’s Ethics Compendium Module on Rule 1.14   as well as a good dose of judgment and common sense, to find the optimum way to competently represent and protect the vulnerable child.