AFTERNOON JOINT SESSION - ETHICS FOR IMMIGRATION ATTORNEYS: MATERIALS

Transcription

1 AFTERNOON JOINT SESSION - ETHICS FOR IMMIGRATION ATTORNEYS: MATERIALS AILA-DC 2012 FALL CONF. 309

2 The Most Common (and Surprising) Ethics Complaints in Immigration Practice By Reid F. Trautz 1 Several years ago, I appeared on a seminar panel with Jennifer Barnes, Disciplinary Counsel for EOIR and bar counsel from Maryland, Virginia and the District of Columbia to discuss the most common ethical complaints against lawyers. In addition, the Practice & Professionalism Center reviewed all EOIR disciplinary cases from The data is remarkably consistent: Immigration lawyers tend to get into trouble the same way lawyers in other practice areas get into trouble. Here are the top ways immigration lawyers get in disciplinary trouble, with practical ideas to help stay out: 1. Lack of Communication (Rule 1.4): Failure to return the client s telephone calls: Lawyers get busy and fail to timely communicate with clients. Immigration lawyers also may have language barriers that make phone conversations impossible or difficult. Schedule a block of time each day to return calls or s. Delegating calls to a staff member with language skills can help, but should not lead to the unauthorized practice of law. Failure to explain the process to the client: Part of a successful attorneyclient relationship is setting reasonable expectations and explaining both the legal process and possible outcomes. Lawyers who neglect this aspect of practice can be assured of a poor client relationship. Build in time from initial client intake through the end of the matter to educate clients on the process and range of potential outcomes. Create brochures, handbooks, or PowerPoint presentations to reinforce these efforts. Failure to follow client instructions: Listening to the client, especially when there is a language and cultural barrier is difficult. Document client instructions, and discuss if they seem unrealistic or worse. Taking time to confirm client instructions is well worth the investment of your time. 1 Reid F. Trautz is an attorney and director of AILA s Practice & Professionalism Center, where he provides guidance on management and ethics issues to help members improve their businesses and the delivery of services to their clients. He is a member of AILA, the Association of Professional Responsibility Lawyers, and a Fellow of the College of Law Practice Management. He can be reached at AILA National for free consultations at rtrautz@aila.org or by phone at AILA-DC 2012 FALL CONF. 310

3 2. Failure to Appear: EOIR judges, whose docket is increasingly crowded, are pushing back against lawyers who: Fail to check to see if a motion to withdraw has been granted Send the client alone (with or without a note) to ask for a continuance EOIR judges are contacting Bar Counsel to lodge complaints against repeat offenders. File motions earlier, follow up by phone is possible; in-person if necessary. 3. Lack of Competence (Rule1.1): Failure to Know and Understand the Law: Competence to practice is the threshold question when accepting a new client matter. If you are unfamiliar with an area of the law, seek assistance, co-counsel with a competent lawyer, refer the matter out, or decline it. Boilerplate motions that lack specificity or analysis: This is a corollary to competency and is being watched closely by judges. Failure to deliver promised the results: Some lawyers feel the need to promise results or assure the client they are in good hands. This can lead the client to maintain high expectations. Most lawyers understand it is never a good idea to predict the outcome. It can also be harmful to imply your success rate or abilities are better than other attorneys, unless you are able to deliver on that implied promise. So don t sugarcoat the potential result: Consider stating a predicted range of outcomes in an engagement letter or other writing to the client so there is a baseline for shared expectations. 4. Handling Client Money and Property (Rules 1.15 & 1.16) Failure to Return the Client s File or Property: Most states bar ethics committees have opined that the client file in the lawyer s office is property of the client. Except for a few narrow exceptions, those states require that a lawyer must promptly turn over a file to the client. State rules differ on issues whether the lawyer can make a copy and charge the client, require a receipt, or require payment of past due legal fees. See Rule 1.16(d) and state bar legal ethics opinions for further information. Fee Disbursement Irregularities: Intentional or negligent misappropriation of client monies from a trust account. Tracking fees and costs, billing clients, and properly maintaining trust accounts is the key to avoiding this type of complaint. If you don t feel comfortable managing your trust account, then hire someone who can do it for you. Remember to check their work for problems or mistakes, because it is your reputation and license on the line. AILA-DC 2012 FALL CONF. 311

4 Failure to Fully Explain the Legal Fees: Many states require some type of disclosure or writing between the lawyer and client. It is always a good idea to have a fee agreement whether it is required or not. For non-english-speaking clients, consider having a translated version of your fee agreement. Also, remember when quoting a range for your fees ($1,500-$4,000) the clients almost always remember only the first number in the range. Failure to Understand the Impact of Dual Representation: Where the lawyer represents both an employee and employer in employment-based immigration or family members (often husband and wife) in family-based immigration, conflict issues can arise that impact on the return of client property, legal fees, and documenting the relationship. 5. Dealing with Client Fraud (Rules 1.6 & 3.3) Although not nearly as common as the first four ethical complaints, severe trouble can result if fraud or potential fraud is ignored. If you or your staff have a reasonable belief that a client is not being truthful about important facts used to prepare an application, you may have an ethical obligation to investigate further. This is because INA 274(c) holds a lawyer to a reckless standard when submitting a written application. This is where it gets tricky: The standards of culpability differ under the rules and INA 274(c). Model Rule 3.3 states, in part, that if a lawyer offers evidence that is false or later learns it is false, the lawyer shall take steps to correct the evidence, including disclosure to the tribunal, if necessary. That duty continues to the end of the proceeding or when the period for review has passed. Discovering that a client has lied to a tribunal is a difficult balancing act between confidentiality (Rule 1.6) and candor toward a tribunal (Rule 3.3). Model Rule 3.3 states, in part: (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. The balancing our ethical duties to both clients and tribunals is difficult. Reported cases are few, but the consequences to a lawyer s reputation and career can be enormous. State ethics rules vary as to which duty is greater candor to the court or confidentiality of the client. Be sure to read your Rules (and the accompanying comments) carefully when confronted with a possible issue. AILA-DC 2012 FALL CONF. 312

5 6. Being Proactive Much like we advise our clients to be proactive about their legal rights and responsibilities, we should take our own advice when it comes to legal ethics. It is better to take advance measures to prevent ethical problems than it is to be hit suddenly with an issue and the potential fallout. To be sure, there are ethical issues that can arise from nowhere, but most can be avoided with a small investment of time now. Schedule an hour per week just like you schedule clients but set aside this time to invest in your practice and your reputation. Call it your ethics hour--call it your CYA hour. Some activities to consider reviewing and revising: Review your standard fee agreement/engagement letter to make sure you are properly anticipating common problems for your practice. Often, this means conflict of interest issues including confidentiality, payment obligations, and ownership of the client file and documents therein. See the new edition of the Immigration Practice Toolbox for language ideas and examples. Our obligations of confidentiality can often be taken for granted: How well do we train staff members to keep quiet during and after employment with our office? Have you fully protected that information across your firm s computer network and portable devices such as smart phones and laptop computers? Take time to develop and implement secure policies and procedures to ensure client information remains confidential. For information, see the resources in the Ethics Resources on InfoNet. Read the rules! Many immigration lawyers believe that good lawyering includes the frequent re-reading of specific provisions of immigration law or regulation. It makes us better lawyers. The same goes for reading your states Rules of Professional Conduct; they are loaded with good information that helps us each time we review them. Spend ten minutes of your ethics hour each week reading one rule. You ll be done in a few months and far more the wiser. Be aware of the rise of Bar Counsel for EOIR and DHS. The Rules of Conduct for lawyers before EOIR was expanded earlier this year to add additional grounds of discipline. Here are the most recent statistics on lawyer discipline since 2000: 1017 lawyers disciplined; of which 950 suspended; 90 reinstated 146 expelled from EOIR practice 25 public or private censures 462 warning letters or informal admonitions Now don t forget to schedule that ethics hour each week. Go ahead and open your calendar now to get started , 2012 American Immigration Lawyers Association. All rights reserved. AILA-DC 2012 FALL CONF. 313

6 MARYLAND STATE BAR ASSOCIATION, INC. COMMITTEE ON ETHICS ETHICS DOCKET NO Whether an attorney who is not licensed in Maryland may provide pro bono legal advice and representation on immigration matters to indigent people in Maryland? Your inquiry states that you direct a farm worker-oriented legal clinic at an out-of-state law school. Each spring break you travel with a group of law students and volunteer interpreters to offer know-your-rights and outreach sessions for low income rural immigrant communities located around the Mid-Atlantic region of the United States. These events include one-on-one confidential intake sessions with any individual who want to speak with you. As an experienced immigration practitioner, you and the students under your supervision, offer on-the-spot advice and follow-up representation on immigration matters at no cost to indigent individuals. If representation on state law matters is required, you refer the individuals to appropriate attorneys licensed in the state where the outreach is being conducted for pro bono assistance. You have been asked to provide such outreach services in Maryland but are concerned whether your activities, as described above, would constitute the unauthorized practice of law inasmuch as you are licensed to practice law in Pennsylvania and New York, but not in Maryland. You state that such activities are specifically permitted under Virginia law and that you conduct activities in Delaware in reliance upon Delaware RPC 5.5(d)(2). You specifically ask for an opinion regarding whether your proposed outreach in Maryland would comport with Maryland's unauthorized practice rule and for any necessary steps you should take to ensure compliance. Under Maryland law, one may not practice law in Maryland unless that person is licensed to do so by the Maryland Court of Appeals. See Md. Code Ann., Bus. Occ. & Prof., (a). Section (h) of the Code provides the definition of the practice of law. Our committee, however, does not issue opinions regarding whether particular activity, such as you describe, constitute the unauthorized practice of law. Such a question presents a legal issue that can only be determined by the Maryland Court of Appeals. Regarding the ethical aspects of your inquiry, Maryland Lawyers Rules of Professional Conduct 5.5 generally deals with the unauthorized practice of law and at paragraph (d)(2) provides: A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. The comments to Rule 5.5 (d)(2) states that a non-maryland lawyer may provide legal services in this jurisdiction when authorized to do so by federal or other law, which include statutes, court rule, executive regulation or judicial precedent. Cmt. 18. Therefore, you should review federal and state laws, regulations and legal precedents to determine if any federal law or other law of this jurisdiction permits you to provide immigration legal services in Maryland. Ramirez v. England, 320 F.Supp.2d 368, 377 fn.9 (D.Md. 2004), which addressed Rule 5.5(d)(2), may also be useful reading. AILA-DC 2012 FALL CONF. 314

7 If you conclude that federal law or other law of this jurisdiction authorizes you to practice immigration law in Maryland, then under Rule 5.5 you may do so without violating the Maryland Rules of Professional Conduct even though you are not a member of the Maryland Bar. Most recently, the Committee has considered the question of whether an attorney who is licensed in another jurisdiction, but not licensed in Maryland, may open a practice in Maryland limited to only immigration matters. Ethics Docket No This opinion, which will be made available on may be of assistance to you. Also of note, the Committee previously addressed the concerns of a non-maryland attorney in the context of immigration practice in Docket (Whether an attorney not licensed to practice in Maryland may conduct a limited immigration practice in Maryland). Although not directly addressing your specific situation, Docket identified other issues and opinions concerning the unauthorized practice of law: Ethics Docket (may an attorney under "inactive" license status of another state maintain an office in Maryland and practice only before the EEOC); Ethics Docket (whether attorney not admitted to practice in Maryland may practice before non-maryland courts from office located in Maryland); Ethics Docket (attorney not a member of Maryland Bar practicing trademark law in Maryland). Again, copies of these opinions are available at REFERENCES: Maryland Rules of Professional Conduct 5.5. Ramirez v. England, 320 F.Supp.2d 368, 377 fn.9 (D.Md. 2004). Md. Code Ann., Bus. Occ. & Prof., (h), (a). Ethics Dockets Docket , , , , DATE APPROVED: May 9, 2012 AILA-DC 2012 FALL CONF. 315

8 Are You (Marketing) Online? The Applicable Rules of Professional Conduct that You Must Know by Mayabanza S. Bangudi, Esq. 1 Point, click... violation? Unfortunately, it is that easy for an attorney to unwittingly violate the attorney's state ethical rules while marketing online. The ease with which potential clients and monitoring bodies can access materials that attorneys post online only makes potential ethical hotspots more prolific. The Maryland Lawyer's Rules of Professional Conduct ( MRPC ) apply regardless of an attorney's form of advertising. 2 The danger lies not only where attorneys do not know the rules, but also when they do not realize that what they are doing online can constitute advertising. This article addresses some rules that are applicable regardless of the form of advertising, as well as ethical issues particularly relevant in certain forms of internet marketing. Website The MRPC provide that attorney advertisements must include the name of the attorney responsible for the content. 3 The MRPC further provide, in Rule 7.1, that "a lawyer may advertise services through written, recorded or electronic communication, including public media." 4 The rules further clarify that, "[a]ny communication made pursuant to this rule shall include the name of at least one lawyer or law firm responsible for its content." Therefore, regardless of whether an attorney advertises via paper flier, bulletin board, internet site or , the attorney should include the name of the responsible attorney. As such, an attorney advertising via a website, whose firm name consists of a generic trade name, or something other than an attorney's name, should make an extra effort to disclose the responsible attorney's name on the firm's website. The MRPC states that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. 5 A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. 6 For example, the Committee on Ethics of the Maryland State Bar Association, Inc. 1 Mayabanza S. Bangudi, Esq. is the owner of Bangudi Law LLC ( where her practice includes immigration, international family, and small business law. She is a member of the American Immigration Lawyers Association and Secretary of the Maryland State Bar Association's Immigration Law Section. Ms. Bangudi received her Juris Doctor at Georgetown University Law Center in Washington, DC and is admitted to practice in Maryland and the US District Court for the District of Maryland. She can be reached at msb@bangudilaw.com. 2 See, eg., Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Lawyer Advertising on Daily Deal Websites, available at (stating that lawyers should recognize that internet based advertising is governed by the same rules which govern print or public media advertisements ). 3 MD. LAWYER'S R. PROF'L CONDUCT 7.2(d). 4 MD. LAWYER'S R. PROF'L CONDUCT MD. LAWYER'S R. PROF'L CONDUCT 7.1. Copyright 2012 Bangudi Law LLC. All rights reserved. 1 AILA-DC 2012 FALL CONF. 316

9 ("Committee on Ethics"), has opined that attorneys may not refer to themselves as "experts" or "specialists." 7 Blogs Particularly in the ever-changing and heavily regulated world of immigration law, blogging about recent changes and news can be very useful to attorneys and consumers alike. To the extent that a blog constitutes an attorney advertisement, the attorney should adhere to state professional conduct rules. 8 The MRPC states that, "[a] copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used. 9 Because a blog can be considered a marketing tool, updates to an attorney's blog could be considered a marketing change that should be stored in the same manner that an attorney stores all marketing material. Social Media Sites An attorney might not think that he/she is advertising on social media sites such as LinkedIn, Facebook, or Twitter, but the attorney's state Attorney Grievance Commissions might not agree. If an attorney promotes the attorney's legal services on such a site, that use could be considered to be advertising. Posting about a recent court victory, whether it is a short victory 'tweet' or a lengthy piece, for example, could be seen as an advertisement. 10 Screen shots of attorney websites and social media sites can be used by anyone - including a state's Attorney Grievance Commission. Client Testimonials Regarding client recommendations on these sites, the Committee on Ethics has stated that the rules against creating unjustified expectations "would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer s record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation 6 See Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Whether a Lawyer May Advertise that He "Specializes" in a Certain Area of Practice, available at (discussing MRPC Rule 7.1). 7 See Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Whether a Lawyer May Advertise that He "Specializes" in a Certain Area of Practice, available at 8 Whether such a blog is contained directly on an attorney's website or links from it, a blog should include a disclaimer stating that the information contained therein is for informational purposes only and does not constitute legal advice. 9 MD. LAWYER'S R. PROF'L CONDUCT 7.2(b). The rules do not contain a specific format requirement. Attorneys may be in compliance by saving PDF images of their advertisements, storing them electronically on their server, or at a minimum by keeping a log of all changes made. 10 See, eg., Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Advertising - Use of Client Testimonials, available at (discussing generally the propriety of advertisements discussing recent court victories). Copyright 2012 Bangudi Law LLC. All rights reserved. 2 AILA-DC 2012 FALL CONF. 317

10 that similar results can be obtained for others without reference to the specific factual and legal circumstances." 11 If an attorney advertisement includes information about victories, the attorney should provide context. For example, the Committee on Ethics has noted that an attorney whose advertisement includes references to a recent court victory, where the case is on appeal, would be misleading the public if the attorney did not also reference the appeal. 12 Third Party Discount Pricing Sites Special ethical rules apply when an attorney has accepts to consult with and/or provide legal services to a consumer who located the attorney through a third party discount site, such as Groupon. These sites operate by accepting fees directly from a potential client, and then forwarding a portion of those fees to an attorney who agrees to consult with and/or provide certain legal services to the potential client. Along with making sure an attorney s ethical rules allow for such participation, 13 an attorney must be careful when returning client fees when paid through the site. The Committee on Ethics has opined that when an attorney carefully adheres to the Rules of Professional Conduct, including those governing independent judgment as well as advertising, that attorney's use of third party discount service sites may not constitute an ethics violation, per se. 14 However, it noted that attorneys should exercise caution when electing to use discount service providers. In addition, the Committee on Ethics has been clear that use of third party discount pricing sites does not absolve an attorney from otherwise applicable ethical rules. Even after an attorney has researched and determined that the structure of a particular third party discount site may not lead to an ethics violation, an attorney must follow all advertising rules. This includes as follows: (1) disclosing the nature of the site and the conditions that apply to the discount offer, (2) consulting with the potential client and determining the best way to proceed in the case, (3) declining representation where an attorney discovers a conflict of interest and, in the case of declining representation for whatever reason properly returning the potential client's fee. In Maryland, if a circumstance arises in which fees must be refunded, the attorney must provide the 11 Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Advertising - Use of Client Testimonials, available at (emphasis added). 12 Id. Attorneys using such testimonials should include a clear disclaimer with language to the effect that past results are not an indicator of future success. In addition, it is important an attorney seeks permission from a clients to use the client's recommendation or testimonial in a an advertisement. For example, if a client has recommended an attorney on one site, such as LinkedIn, which has a built-in recommendation feature, the attorney should obtain that client's permission before duplicating the testimonial on his/her website. It is best to use the client's own wording. If an attorney edits the recommendation, it could be considered misleading to post the recommendation without the notation that the attorney revised it. 13 Third party discount sites can implicate fee sharing rules, which are beyond the scope of this article, but nevertheless merit research and investigation by the attorney before the attorney enlists the services of such a site. See, eg. Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Lawyer Advertising on Daily Deal Websites, available at 14 See Maryland State Bar Association, Inc., Committee on Ethics, Ethics Docket No , Lawyer Advertising on Daily Deal Websites, available at Copyright 2012 Bangudi Law LLC. All rights reserved. 3 AILA-DC 2012 FALL CONF. 318

11 consumer all of the fees for the service that the consumer paid, either to the site or to the either, including those fees that the attorney did not receive. External Marketing Sites Solo and small firm practitioners have likely grown accustomed to internet marketers seeking their business and promising a world of new clients. But whether an attorney considers using such services to create a new website for his/her firm, or to simply include a small blurb on their site regarding your services, the end product could be viewed as constituting an advertisement. Avvo, Google AdWords, and others are examples in this category, and if an attorney promotes him/herself on such a site, the attorney should assure that the listing or profile is in compliance with ethical rules. Conclusion With the internet, access to potential clients has increased exponentially. With that, though, has come an increase in exposure to ethical rule violations. Whether an attorney realizes it or not, if an attorney has an online presence, that attorney may very well be advertising. An attorney should review his/her state s ethical rules and make sure that the advertising material online that is attributable to the attorney s firm complies with his/her jurisdiction's ethical rules. And live to advertise another day. Copyright 2012 Bangudi Law LLC. All rights reserved. 4 AILA-DC 2012 FALL CONF. 319

12 HOW TO WALK THE ETHICAL LINE BEING LESS STRESSED OUT by Cyrus D. Mehta, Howard S. Myers, and Kathleen Campbell Walker * The fact patterns, which we address below, reflect situations in which the immigration attorney is obligated to give advice without crossing the line. This article, however, is not about taking the lawyer to the edge of the precipice, without pushing him or her over. Despite the complexity of the client s situation, it is always prudent to remain well within the boundary line of what is ethical. Since this boundary line is often amorphous and can shift, subject to varying interpretations, why should the lawyer take a risk? Moreover, walking this ethical line can potentially cause extreme stress and possible legal exposure for the immigration lawyer, but it need not if the lawyer possesses an in-depth knowledge of the ethical rules that enable him or her to stay well within that boundary. Our fact patterns may initially cause the lawyer stress, and perhaps panic as well, but once they are viewed from an ethical perspective, the advice that flows from the benefit of such an analysis can be a win-win for both the lawyer and the client. The lawyer s reputation is enhanced, both with the client and the government; and the client also obtains the most realistic advice, which in the long run can only benefit him or her. So dear readers, put down your coffee cups as we try to help steer you though the intricacies of immigration law and ethics. Once you see the end of the tunnel of this journey, we hope you would have gained a healthy dose of confidence as well as competence! FACT PATTERN 1 THE FAST TRACK QUESTION You just finished a presentation to a local civic group on immigration in the United States. One member of the audience, a seemingly prosperous gentleman, approaches you with a quick question. He has fallen in love with a woman from the Philippines and wonders whether it is better to have her come into the United States on a B-2 visitor visa and marry him or is there a faster way for her to get a green card from the Philippines. How do you handle the question and afterwards? Creating the Attorney-Client Relationship 1 The Context The ethics of an attorney-client relationship are governed by Rules of the Model Rules. It is common for an attorney to be offered the opportunity to enter into a lawyer-client relationship in a social setting. * Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the managing member of Cyrus D. Mehta & Associates, PLLC. Mr. Mehta is the chair of AILA s National Pro Bono Committee and former chairman of the board of trustees of the American Immigration Law Foundation ( ). He received the AILA 2010 President s Commendation for leadership of AILA s pro bono efforts. Mr. Mehta is the author of several articles on contemporary immigration topics, including on ethics. Howard S. Sam Myers has more than 30 years experience practicing immigration law. He has been past president and Board of Governors member of AILA. He has testified before the U.S. Congress on immigration law and has advised members of the Minnesota State legislature on immigration law policy. He is listed in The Best Lawyers in America in Immigration Law and was recognized in Who s Who Legal 2007 through 2010 as one of the top 15 lawyers in the world most highly regarded in corporate immigration law. He was honored as a Fellow of the American Immigration Law Foundation. Kathleen Campbell Walker is a former national president ( ) and general counsel ( ) of AILA. She is chair of the Immigration Practice Group of Cox Smith Matthews Incorporated and has been practicing immigration law since She is board-certified in immigration and nationality law by the Texas Board of Legal Specialization. In 2010, she received the AILA National Service Excellence Award. She has testified multiple times on immigration and border security issues before Congress and the Texas legislature. 1 References in this article will be to the ABA s Model Rules of Professional Conduct (Model Rules) and these will be cited in this advisory. Ethics rules may vary in your jurisdiction, so be sure to check them against the correlated rule cited in this practice advisory. 51 Copyright 2011 American Immigration Lawyers Association AILA-DC 2012 FALL CONF. 320

13 Usually, however, that context is inappropriate to properly create the relationship. 2 Legal advice is based on an application of law to facts, performed within the scope of a confidential setting. Here, the attorney may provide general information, but the front of a podium following a seminar or speech is not the place to provide legal advice. Either recommend that the individual retain his own attorney, or arrange for a consultation later. Beyond the ethics of creating the attorney-client relationship is the very important contractual or liability aspect of doing so. Liability has been found in many situations where caution was not observed by an attorney dispensing information when the client relied on it as legal advice. 3 The appropriate place for you to begin the relationship is in your office or in an equivalent confidential context. It is possible to establish a confidential attorney-client relationship by telephone, , or in other written format, but the ground rules should be established and the client s and attorney s expectations made clear. It is crucial, however, that the client be advised, in writing, of the existence, conditions, scope, confidentiality, and basis of cost of representation. The ethics of creating and maintaining confidentiality surrounding client relationships in our complex social media milieu is constantly receiving the attention of ethics authorities and courts, must be said to be in a state of evolution, and cannot be said to be well-established. 4 A California court recently held that an employee who ed her attorney from her employer s computer did not have a reasonable expectation of confidentiality where she was aware of a company s published policy of its right to monitor traffic. 5 The court analogized the communication as,... akin to consulting her lawyer in her employer s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. In the present case, there ought to be a written retention agreement, an understanding concerning confidentiality of attorney client communications, an explanation of costs and clear expression of when and under what circumstances the attorney-client relationship may be terminated. Who Is Your Client? In marriage-based immigration cases, this point is always critical to establish. In the current example, it is fraught with complexity. This example includes not only the identity of whom you represent but also actual and potential conflicts of interest. It is governed by Model Rules 1.2 (Scope), 1.6 (Confidentiality), 1.7 and 1.8 (Conflicts of Interest), 4.3 (Dealing with Unrepresented Persons). Although it is possible, and usually desired by the couple, for the attorney to represent both parties to the prospective marriage, the attorney ought to point out the real possibility that, should a conflict of interest arise, the attorney must withdraw from all representation. This is not to suggest that a conflict cannot be resolved or waived, but there may be situations where a waiver is no longer effective if the attorney can no longer competently continue the representation of one or both parties, and the best option under such circumstances is to withdraw. This comes from a combination of Rule 1.7(a) where the continued representation would be directly adverse to another client; or 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; and of Rule 2 Here it is appropriate to note that communications with prospective clients are governed by Rule 7.3 (Direct Contact with Prospective Clients), which prohibits direct personal or electronic contact with prospective clients,...when a significant motive for the lawyer s doing so is pecuniary gain unless the person contacted is a lawyer or has a close family, personal or prior professional relationship... subject to some qualifications. 3 See D. Schnell, Note: Don t Just Hit Send: Unsolicited and the Attorney-Client Relationship, 17 Harv. J. Law & Tech. 533, 538 (2004). See e.g., Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 693 (Minn. 1980); Matter of Petrie, 154 Ariz. 295, 742 P.2d 796, 800 (1987); Moen v. Thomas, 682 N.W.2d 738 (N.D. 2004). 4 See 5 Holmes v. Petrovich Development Company, LLC The difficulty of this issue in a rapidly expanding social media environment is illustrated by the U.S. Supreme Court in Ontario v. Quon 560 U.S. (2010) holding that an individual does not have an expectation of privacy in a text message transmitted in a city issued pager where a police department had no policy concerning privacy. AILA-DC 2012 FALL CONF. 321

14 1.16 requiring termination of representation if the attorney s continued representation would violate an ethical rule. It is important for the attorney to explain the potential causes of conflicts, ranging from the process becoming too risky or expensive for one of the parties, the couple s feelings toward each other changing, or facts coming to light that have not previously been disclosed. It is also important, in situations such as the one presented in this hypothetical, that the attorney explain his or her obligation to present true facts to the agency and to correct any material misrepresentations that may exist in any submissions to the agency (see discussion below). What Is the Objective of the Representation? This issue involves a combination of ethical considerations and practical considerations in being realistic with the client. What the clients want here is the fastest, most economical issuance of a desired visa. This objective is unlikely to be a realistically achievable outcome in a case like this. There will be skepticism on the part of the U.S. Citizenship and Immigration Services (USCIS), the embassy, and an evolving set of facts about each of the couples backgrounds. For that reason, before assessing the costs, likelihood of success and process, the attorney and his staff should conduct a thorough interview of the client concerning past marital or premarital relationships with these or other individuals, past behavior that could mitigate against visa issuance, and other factors that would implicate INA 212 eligibility. The early stage of a legal representation is the most important time to be bluntly realistic with the client or clients. This discussion sets their expectations for the future. If it is going to be a rough ride through the system, say so. Minimizing or marginalizing difficulty does not serve to create a positive an attorney-client relationship in the end. After serious evaluation and consideration, you have decided to undertake representation of the couple to secure a fiancé visa. You begin preparation of the supporting documents. Your client asks that you draft all of the supporting affidavits in such a way as to meet what you believe will be the agency s expectations since You are the expert. What do you do? The Attorney as Advocate In the field of immigration law, we are regularly confronted with reconciling our role as advocate to that of an officer of the tribunal committed to candor and respect toward it. 6 These responsibilities are explained in Rules 3.1 through 3.9. While it may be tempting for an attorney and his staff to simply dive headfirst into drafting supporting affidavits, there are some important cautionary rules we should follow. First, the affidavits must reflect the true facts, as opposed to the facts that the advocate wishes were true. This consideration can easily be implemented into the case preparation. After fully advising a client concerning the issues at hand, it is perfectly appropriate to require the client(s) to prepare written details of the relevant facts and substantiate them with independent documents, copies of letters, s, photos, supporting statements from other witnesses, who know the couple as to the couple s history and bona fides of their commitment to each other. Requiring the client to collect evidence supporting the elements of a fiancé petition not only enables the attorney to not only develop an independent understanding of the facts, but also serves to provide the agency with corroborating evidence. 6 An adjudicative entity within U.S. Citizenship and Immigration Services (USCIS), such as a service center, would probably fall within the definition of a tribunal under Model Rule 1.00(m). Even if it did not, it does not absolve a lawyer from the duty of candor, as the lawyer still must be truthful towards third parties under Model Rule 4.1 and 1.6, and more importantly, the lawyer could also face criminal sanctions under an assortment of federal penal statutes. A thorough analysis of the attorney s responsibilities of candor to the tribunal is presented at C. Mehta, What Remedial Measures Can a Lawyer Take to Correct False Statements Under New York s Ethical Rules? 12th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2009 Ed.) [hereafter referred to as Mehta]. AILA-DC 2012 FALL CONF. 322

15 From an ethical point of view, the attorney is simply complying with Rule 3.3 prohibiting an attorney from,... knowingly: (1) mak[ing] a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer... Rule 1.0(f) defines knowingly and knows as actual knowledge of the fact in question, which may be inferred from the circumstances. Moreover, in an immigration proceeding, the attorney must comply with 8 CFR Secondly, the attorney should impress on the client that the more substantiating evidence the client can produce, the more likely the petition will be successful. Here is it important for the attorney to reflect his or her professional responsibilities that are independent from what may be the client s understandable unfettered desire to win his or her case. The Model Rules significantly limit the attorney from becoming a witness in the case. 8 There are certainly situations in which the client and attorney have collaborated so often in documenting a case that each knows what the facts are and the attorney can take a greater role in drafting supporting documents for the client s review. Nevertheless, it is essential that the attorney be operating from the basis of what he or she knows to be true and to what facts he or she knows that the client will truthfully be able to attest. Finally, it is often important, in the initial consultation, and even in the engagement letter, for the attorney to impress on the client the attorney s ethical obligation to correct any false statements of material fact or law previously made to the tribunal. This approach may serve to temper the client s incentive to invent or suppress relevant facts. FACT PATTERN 2 YOUR CLIENT LIED After the fiancé petition has been filed, but before it has been adjudicated, the attorney learns, through a former girlfriend of the prospective husband, that several material statements made in the supporting affidavits were false. What should the attorney do? To an attorney who has prepared her client well for representation, this evolution of our hypothetical may not present as difficult a problem, but the attorney should be careful to consult her jurisdiction s adoption or not of Model Rule 3.3(a)(1) and (3) and consider her actions within the scope of her jurisdictions applications of Model Rules 3.3(a)(1), (a)(3), 4.1, 1.2 and We have reflected the duty of the attorney in two Model Rules, 3.3(a)(1), summarized above, and 1.6, containing the following exception to the confidentiality rule: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... 7 A practitioner who falls within one of the following categories shall be subject to disciplinary sanctions in the public interest if he or she: (c) Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures; Mehta, supra, at page 5, discusses the difference between 8 CFR (c) and the New York rule 3.3 as the federal regulation includes both a knowing and reckless disregard standard whereas the New York rule only contains a knowing standard. The New York rule coincides with the Model Rule, in the absence of a reckless disregard standard and defines knowing as...actual knowledge of the fact in question. A person s knowledge may be inferred from circumstances. 8 Model Rule Instructive discussions of this situation may be found at where the author discusses the duty in the context of appellate judicial argument and /february/practicetips.htm where a similar discussion is presented. See also, discussing these issues in criminal law context. Compare where the rules of Arizona are compared with the Model Rules. AILA-DC 2012 FALL CONF. 323

16 (2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer s services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action; (3) To prevent, mitigate, or rectify the consequences of a client s criminal or fraudulent act in the commission of which the lawyer s services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action; Model Rule 1.2(d) states: 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. Model Rule 1.6 above allows the attorney to confront his client with the asserted misrepresentations and persuade the client to take corrective action. 10 Well enough if the material facts are shown to be false, but what if you do not believe the witness who asserts the falsity of the evidence or do not believe your client who claims that the facts are as he stated them? This leaves the attorney with a difficult decision. If the attorney believes his client that the facts are true, then, under the rules, it would seem that he must respect the confidentiality of his relationship and duty toward his client and rely on the evidence. But, his reliance ought to be reasonable and justified by a thorough inquiry. If he does not believe his client s claim that the alleged misrepresentation is true, then it would seem that the attorney has two options, to withdraw or to correct the record. 11 Should the attorney with such doubts about his client s veracity simply withdraw, without correcting the record, query what impression is left with the agency? Has the attorney taken appropriate remedial measures under 8 CFR ? One thing that we can learn from this situation is that an attorney who has notified his or her client at the beginning of the representation that the attorney s interpretation of legal and ethical rules compel the attorney to disclose conduct that he or she believes or reasonably suspects to constitute misrepresentations to the agency is going to be in a better position to withdraw than one who has not. FACT PATTERN 3 A FUTURE CURE OR ONE THAT DOES NOT CURRENTLY EXIST Client A entered the United States without inspection in February 1, 2002 and is married to a spouse, who also entered the United States with him at the same time and in the same manner. They have three U.S. citizen children. A labor certification was filed on April 30, 2001 on behalf of Client A, which was subsequently abandoned. After examining all the facts and options, immigration attorney determines that there are no available options at this time. Client A asks immigration attorney whether he can continue to stay in the United States in violation of the law until Congress passes Comprehensive Immigration Reform (CIR)or until his eldest child turns 21 (she is currently 19). Client is aware that he can also apply for cancellation of removal; only if an NTA is issued on or after February 1, 2012, and wants to know how to best minimize risks to avoid apprehension before the 10- year anniversary of his arrival into the United States. Again, the Role of the Attorney Immigration practitioners commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the attorney recommend that this person remain in the United States in this unlawful status until a benefit may accrue in the near or 10 Mehta, What Remedial Measures Can a Lawyer Take to Correct False Statements Under New York s Ethical Rules? 12th Annual AILA New York Chapter Immigration Law Symposium Handbook (AILA 2009 Ed.) at page 6 7, discusses the attorney s ability to advise the client concerning the significant adverse consequences arising from the misrepresentation. 11 Id. at page 5, discusses the option of a noisy withdrawal in connection with the standards of 8 CFR AILA-DC 2012 FALL CONF. 324

17 distant future? Even if the attorney may not directly advise the client to remain in the United States in violation of the law, would an attorney advising the client of a potential future immigration law be implicitly encouraging the client to remain in violation of the law, and also be implicating any ethical obligations? The Paradox This situation indeed is one of the great paradoxes in immigration practice, since an individual who is in undocumented status need not expect to remain eternally undocumented. A classic example is one who is grandfathered under 245(i) of the INA. So long as an immigrant visa petition or labor certification was filed on behalf of this person on or before April 30, 2001, that was approvable as filed, and if the principal applicant, for whom the labor certification was filed was physically present in the United States on December 21, 2000, in cases where the labor certification or petition was filed after January 14, 1998, 12 this individual can ultimately adjust status in the United States when she is eligible to do so. 13 In the meantime, while this individual is waiting to become eligible for adjustment of status, assuming that the physical presence requirement on December 21, 2000, is met for certain applicants, she continues to remain unlawfully in the United States and may also be placed in removal despite having an approved petition, but unable to adjust status until the priority date becomes current. We encounter yet another paradox when such a person who is potentially eligible under 245(i) is issued a Notice to Appear and is placed in removal proceedings. The Board of Immigration Appeals has held that it may be an abuse of discretion for an Immigration Judge to deny a continuance to a respondent who has a prima facie approvable visa petition, in both the family and employment context, and is also potentially eligible for adjustment of status. 14 Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria, such as by being physically present in the United States on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating exceptional and extremely unusual hardship to the alien s spouse, parent, or child, who is a citizen or a permanent resident. 15 Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, 16 or a person can obtain Temporary Protected Status, if a calamity 12 8 CFR (a)(ii). In 1994, Congress passed special adjustment of status provisions, commonly referred to as 245(i). Department of Commerce, Justice, and State Appropriations Act, Pub. L. No , sec. 506(b), 108 Stat (1994). The new INA 245(i) provided broad relief for persons, who were otherwise ineligible for adjustment, thus allowing them to become LPRs without having to go the route of the immigrant visa process abroad. In exchange for this benefit, they were required to pay a surcharge fee. As originally enacted, 245(i) allowed most persons who had a basis for becoming LPRs, and who were otherwise admissible to become LPRs, to adjust upon payment of a fee of $1,000. This grandfathering provision also applied to children who aged-out (i.e., turned 21) while the application was pending. Although the program ended in January 1998, persons who had qualified under 245(i) as of that date were grandfathered in. On December 15, 2000, Congress extended the grandfathering date to April 30, CFR (a)(3); Memo, Yates, Assoc. Dir. Operations, USCIS, HQOROPD 70/23.1 (Mar. 9, 2005), published on AILA InfoNet at Doc. No (posted Mar. 14, 2005). Note the physical presence requirement in the United States applies only if the principal s labor certification or INA 204 petition was filed after January 14, 1998, and on or before April 30, See Pub. L. No , title I, sec. 111; 111 Stat. 2440, (Nov. 26, 1997).] The Legal Immigration Family Equity Act Amendments of 2000, Title XV of Pub. L. No , sec (114 Stat. at 2764) (enacted Dec. 21, 2000) (the LIFE Act Amendments) extended the 245(i) (8 USC 1255(i)) sunset date from January 14, 1998, to April 30, That act also requires that, if the qualifying visa petition or labor certification application was filed after January 14, 1998, the alien must have been physically present in the United States on the date of enactment (Dec. 21, 2000) to be eligible to apply for adjustment of status under 245(i). 14 See Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009). 15 INA 240A(b). 16 Pub. L. No , title XI. AILA-DC 2012 FALL CONF. 325

18 were to befall her country. 17 Millions of undocumented immigrants, including children, who have fallen out of status or entered without any status, are waiting for Congress to pass legislation that could legalize their status. Immigration lawyers also advocate on their behalf, and help them draft petitions and accompany them to the offices of elected representatives. The following extract from the U.S. Supreme Court s decision in Plyler v. Doe, 18 which held that undocumented children could not be deprived of a public education, is worth noting: To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen. Zealous Representation Within the Boundaries of Law and Ethics Against this backdrop, the practitioner must be mindful of certain limitations. On the one hand, a lawyer is under a duty to act zealously. 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 zealously represent his or 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 a client to remain in the United States, 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 United States after the EWI. Although being unlawfully present in the United States may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation where an undocumented noncitizen can eternally hope to gain legal status, 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 United States. Considering and Presenting the Options Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the United States 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 United States, in certain circumstances, does constitute criminal conduct. For instance, if the client in the above hypothetical has received a final order of removal and has willfully failed to depart the United States within 90 days from the order, INA 243 renders such conduct a criminal felony with imprisonment of not more than four years (or 10 years if the person is deportable under the smuggling criminal offence or criminal/falsification of documents grounds). 19 An immigration attorney may 17 INA U.S. 202 (1982). 19 INA 243(a)(1) provides, as follows: Penalty for failure to depart: continued AILA-DC 2012 FALL CONF. 326

19 encounter a client who has a final removal order and willfully fails to depart in the hope that his U.S. citizen child, who is 19 years, will turn 21 years in two years, which would enable him to potentially reopen the order based on his ability to apply for adjustment of status as an immediate relative in the event that the government consents to joining in a motion to reopen. 20 If this client were to depart the United States prior to his son turning 21 years, he would derive no benefit for the next 10 years as the client would have most likely triggered the 10-year bar under INA 212(a)(9)(B)(i)(II). He would also be ineligible for a waiver under INA 212(a)(9)(B)(v) as a citizen child is not a qualifying relative under this provision. The attorney, in this situation, is truly caught in a conundrum. She cannot advise the client to evade the authorities who are seeking to remove him, and at the same time, if the client does present himself and gets removed from the United States upon the attorney s advice, he has lost out on the opportunity to adjust status through his U.S. citizen son when he turns 21 years. One should be mindful, though, of the 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. It is unclear whether taking proper steps for the purpose of securing cancellation of or exemption from such order of removal would cover our hypothetical client who would need to wait for two more years until his citizen son turned 21 in order for him to file for adjustment of status and move to reopen the order. Notwithstanding this exemption, the attorney should not advise her client under such circumstances to fail to depart after the final order or evade detection as that might be assisting a client in conduct that is criminal, and the attorney could also be potentially implicated criminally as a conspirator. However, as addressed in Model Rule 1.2(d), 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 situation becomes even more stark when an immigration attorney is approached by a client who after receiving a final removal order has re-entered the United States. INA 276 refers to an alien who is at any time found in the United States after entering or attempting to enter following the order. So, one who remains following an illegal reentry after removal is arguably committing a continuing crime, and there may also be no statute of limitations. Even here too, such a client can potentially apply for narrow relief such as withholding of removal or may challenge the reinstatement order 21 through a petition for review in a circuit court. 22 Under such circumstances, it is doubtful whether the attorney is encouraging a client to persist with the criminal conduct to remain in the United States in violation of 276 while challenging an infirm reinstatement of a removal order or by establishing that the client will be persecuted, if returned to the original country. Even so, while the attorney may zealously represent such a client, she must be careful to not in any way encourage the continuing criminal conduct by directly advising that the client to avoid detection by changing addresses or the like. Finally, the immigration attorney should never misrepresent the client s situation or location, when speaking to an immigration official. In general, any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 237(a), who willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes, or if judicial review is had, then from the date of the final order of the court, i. willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien s departure, ii. connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien s departure pursuant to such, or iii. willfully fails or refuses to present himself or herself for removal at the time and place required by the attorney general pursuant to such order, shall be fined under title 18, USC, or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 237(a), or both CFR (c)(3)(iii); (b)(4)(iv) CFR See Debato v. Attorney General, 505 F.3d 231 (Oct. 2007). AILA-DC 2012 FALL CONF. 327

20 Even if presenting information to such an official, such as an ICE official who needs to know the whereabouts, this situation does not implicate an attorney s duty of candor towards the tribunal under Model Rule 3.3; but a lawyer is still precluded from making a false statement of material fact or law to a third person under Model Rule 4.1. In closing, 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 in the above hypothetical: 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, in and 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. But Is the Holy Grail of CIR an Option? The example raises the point of the possible impact of comprehensive immigration reform (CIR), if ever passed into law in some form, as a potential future cure to the client s predicament as well. Others would characterize a resurrection of INA 245(i) as CIR as well. For those who do not appear to qualify for any relief, some attorneys might suggest the filing of a labor certification to serve as a place holder, if INA 245(i) is resurrected or reapplied or if some future CIR legislation, provides for benefits for those with an approved labor certification. It is important to remember that on July 16, 2007, all labor certifications expire 180 days from the date of issuance unless an I-140 Immigrant Petition is filed, based on the certification, before the expiration of the 180 days from the date DOL granted the certification. 23 Certifications issued prior to July 16, 2007, expired if no I-140 is filed within 180 days of July 16, 2007, or on January 12, Of course laws can change and for those who managed to have qualifying and legitimate petitions or labor certifications submitted, their clients had potentially more remedies than others. Consultations between a client and a lawyer concern the application of law to fact when making a decision to file a petition or labor certification. In addition, it is important to remember that benefit filings can result in potential removal actions being taken against the client. 24 If an attorney is suggesting a filing on a theory of a potential new law making the cost of the filing worth the risk and the potential treatment as a nullity by current law, the disclosure of this fact must be in writing and signed by the client. Some would argue the client would also be advised to consult with yet another lawyer before choosing to execute such an acknowledgement knowingly. Other attorneys would suggest that not charging a fee for such speculative filings is the appropriate approach, but whether the fee is charged or not, the potential consequences of acting upon such legal counsel will be real. Filing based on non-existent law is not a course of action we would recommend based on the considerations outlined in this section. To that end Model Rule 1.2 as to scope of representation and 3.1 as to meritorious claims and contentions should be consulted along with applicable state bar rules. In pertinent part of Rule 3.1 provides that, 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. As already noted, Model Rule 1.2(d) provides 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 CFR See USCIS ICE Memorandum of Understanding as to the Issuance of NTAs, published on AILA InfoNet at Doc. No (posted Oct. 1, 2010) at p. 14. AILA-DC 2012 FALL CONF. 328

21 FACT PATTERN 4 WRESTLING THE INA 214(B) POLTERGEIST AT ENTRY Client is a U.S. citizen is a university professor, who wishes to immigrate his Mexican citizen parents to the United States as soon as possible due to the violence in Ciudad Juarez where they have lived for over 50 years. Client has heard that if his parents possess laser visas (i.e., B-1/B-2/BCC), they can apply for admission to the United States using their laser visa for no more than a 30-day visit within a 25-mile perimeter of the border (i.e., Texas not Arizona) and then apply for adjustment of status within the 30 days based on their U.S. citizen son s I-130 petition. 25 They ask if there are any risks to this strategy that they heard about recently from a friend, who successfully used it. Identifying Issues 1. INA 214(b) This section of the INA provides that all applicants for admission to the United States are presumed to be immigrants until they establish to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he or she is entitled to a nonimmigrant status under INA 101(a)(15). The foreign residence requirement is fairly consistent among nonimmigrant visa categories. The INA, however, has a specific exception to this requirement for H-1B, L-1, and O-1 nonimmigrants Expedited Removal Under INA 235(b)(1)(A)(i), a foreign national who is arriving in the United States and who is determined to be inadmissible under INA 212(a)(6)(C) or 212(a)(7) (except an alien for whom documentary requirements are waived under 8 CFR 211.1(b)(3) or 212.1) shall be ordered removed from the United States. 3. INA 274(a) Any person who encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law shall be subject to a fine or imprisonment for 10 years or both for each alien if done for commercial advantage or private financial gain Overstay and INA 222(g) INA 222(g)(1) states that if a foreign national is admitted to the United States based on a nonimmigrant visa and then remains in the United States beyond the authorized period of stay, the visa is voided at the conclusion of the period of stay authorized. So, what happens to a laser visa holder with no I-94 on the 31st day? Is there really a period of authorized stay as with a typical I-94 documented admission triggering INA 222(g) consequences of visa voidance or is the period of authorized stay in this instance more like a duration of status (D/S) admission granted in F-1 student visa cases? Take a look at the April 1, 1999, letter written by then Acting Assistant Commissioner, Michael J. Hrinyak, indicating that those entering on a laser visa without an I-94, should be treated the same as a D/S admission. 28 This approach would mean that unlawful presence would not accrue until a benefit adjudication or a court determination CFR 235.1(h)(1). 26 INA 214(h) (codifying the concept known as dual intent ); INA 214(b), (describing immigrant presumption but providing an exception for aliens admissible in the H and L categories); INA 101(a)(15)(O)(i), 8 USC 1101(a)(15)(O)(i) (defining alien of extraordinary ability, but including no requirement that the alien s stay be temporary) 27 INA 274(a)(1)(B)(i). If not done for commercial advantage or private financial gain, then the prison term is five years. 28 Published on AILA InfoNet at Doc. No (posted Apr ) Although the new Laser Visa, Form DSP-150, bears the designation... and Border Crossing Card, it is primarily a nonimmigrant visa, valid for travel to the United States without a passport from contiguous territory and, when presented with a valid passport, from noncontiguous territory. The issuance of Form I-94 does not alter the nonimmigrant visa nature of the document and subjects admitted with or without an I- 94 are subject to Section 222(g) if they have... remained beyond the period of stay authorized by the Attorney General. However, as a matter of practicality, those subjects admitted on the basis of a nonimmigrant visa, including Form DSP-150, who have not been issued Form I-94, such as those entering for less than 72 hours and remaining within 25 miles of the border, are, in general, not subject to Section 222(g) unless a formal finding of a status violation has been made by the INS or an immigration judge, that resulted in the termination of the authorized period of stay. 29 On the other hand, CBP has been taking the position, in complete contradiction to established USCIS and DOS policy, that a Canadian who is admitted without a visa and I-94 would still be accruing unlawful presence and would not be treated as a D/S continued AILA-DC 2012 FALL CONF. 329

22 HOW TO WALK THE ETHICAL LINE BEING LESS STRESSED OUT Misrepresentation/Fraud at Entry An alien who engages in fraud or willful misrepresentation of a material fact in order to procure a visa is inadmissible. 30 The Department of State (DOS) instructs in the Foreign Affairs Manual that a misrepresentation requires an affirmative act, rather than the failure to volunteer information. 31 To determine whether an alien has made a misrepresentation to obtain a visa, DOS instructs consular officers to apply the 30-/60 day rule. 32 This rule provides that if within 30 days of B-2 visa issuance or entry, the alien: Actively seeks unauthorized employment and, subsequently, becomes engaged in such employment; Enrolls in a program of academic study without the benefit of the appropriate change of status; Marries and takes up permanent residence; or Undertakes any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment; then the alien is presumed to have misrepresented his or her intent at entry. 33 After 60 days, DOS does not consider the alien s activities to constitute the basis for a finding of ineligibility. 34 What to Do? When the attorney is consulted before the anticipated admission or after, he or she must focus on the intent of the parents at the time of their application for admission. What documentation can be obtained to address the intention of the parents at the time of their application for admission. In addition, if the parents have yet to apply for admission, certainly the attorney must consider the potential exposure to suggesting that the parents use a nonimmigrant visa, other than one which allows dual intent, to effectuate an immigrant admission. Is the attorney subject to potential criminal penalty under INA 274A described above? What if the attorney suggests that the parents enter without an I-94 admission and just wait until the 61st day to file for adjustment of status? INA 245(c)(2) provides that for immediate relatives, unlike preference cases for immigrant status, working without authorization or being in unlawful status or violating nonimmigrant status is not a bar to adjustment. How can the attorney explain the decision to file on the 61st or the 90th day? Even with such a filing date, intent at entry as well as the circumstances for admission are still relevant queries. Playing with fraud exposure is playing with ethical fire. It is best to stay away and keep your license as well as improve the possibility of a good night s sleep. CONCLUSION We also suggest that you remember the following like a lawyer s prayer or possible chant or other insomnia cure option as you try to go to sleep each night: No amount of money is worth your license. Always be the boss. Don t let the client control you. Do not accept a case that would compromise your ethics. Assume every client is wired. There is no such thing as an off the record conversation. Know the law very well. A good lawyer may find ethical solutions for the worst of problems after 180 days in the United States. See minutes of AILA National Liaison Meeting with CBP on Dec. 9, 2010, published on AILA InfoNet at Doc. No (posted Jan. 26, 2011). 30 INA 212(a)(6)(C) FAM 40.63, N Cf. INA 274C(f) which notes that for determining document fraud penalties, a falsely made document includes one that fails to state a fact which is material to the purposes for which it was submitted. Under N4.2, Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i) FAM 40.63, N FAM 40.63, N FAM 40.63, N Copyright 2011 American Immigration Lawyers Association AILA-DC 2012 FALL CONF. 330

23 [Ethics Sample Website Hypothetical] Your XYZ Immigration Lawyer.com* Now Conveniently Located Across from Virginia Asylum Office! Certified and Qualified in Immigration Law You can trust Your XYZ Immigration Lawyer, an attorney with 10 years of experience practicing immigration law. Your XYZ Immigration Lawyer delivers excellent results in the toughest cases and boasts a 100% success rate in Washington and Baltimore Immigration Courts. Facing immigration and criminal court? No need to pay for two attorneys. Come to the best attorney for both of your cases. Now offering marriage-based green card filings for same sex couples! Call now! GREEN-CARD * Licensed in Maryland Graduate of Yale Law School, JD. AILA-DC 2012 FALL CONF. 331

24 Ethics Hypothetical Fact Pattern #1 Lawyer Susie is representing Natasha in an application for naturalization. Susie previously assisted Natasha in obtaining her permanent residence based on a petition filed by her US citizen husband James. Susie represented the couple throughout the entire I- 130/I-485 application process and filed G-28s for both husband and wife. Natasha showed up late to her last appointment and was visibly upset. Upon questioning by Susie, Natasha confesses that she and James got in a big fight and he became physical. Natasha told Susie that this is not the first time that this has happened and that she has thought about leaving James but does not want to negatively affect her immigration status, including her ability to naturalize immediately. She has a sick mother in her home country that she would like to sponsor. Natasha tells Susie that James is concerned that once she becomes a citizen she will no longer need him which has exacerbated problems between them. A few days after the appointment, Susie gets a call from James who tells her that they have been having problems with receiving mail at their home and Susie should send all correspondence to his work address. He also says that since the couple does not have a landline and Natasha cannot get calls at work, Susie should call him on his cell phone with any updates. Should Susie continue to represent Natasha? What should Susie advise Natasha about her living arrangements? Should Susie follow James instructions regarding communication with Natasha? AILA-DC 2012 FALL CONF. 332

25 Ethics Hypothetical Fact Pattern #2 Lawyers Dave and Bill created a new immigration firm. To keep billing simple, and to keep from having to deal with trust accounts and keeping track of their hours, which both lawyers abhorred, they offered their clients flat fees. For removal cases, the firm charged $15,000 up front. For permanent residency through employment cases, the firm required payment of $20,000 up front. The firm deposited all fees into an operating account and did not have a trust account. The lawyers divided the work on each case. Lawyers Dave and Bill soon began to argue about the division of profits and reserves and overhead. Lawyer Bill s nasty divorce case distracted him from his work, and the case quickly depleted his financial resources. He was grateful the firm employed an earned approach to all fees, and he quickly deposited funds into his personal account. To keep up with the work load without increased expense, Lawyer Dave hired a foreign consultant/advisor well versed in US immigration law. He offered to share fees earned in proportion to work brought in by the consultant. Unable to resolve their issues, Lawyers Dave and Bill hastily closed the firm, with each attorney taking one half of the cases. New clients Ann s Cosmetics, Inc., Mary and Ali had just paid for their PERM and removal cases when they each heard about the firm s trouble. They have not been able to reach either attorney for several weeks, despite leaving messages and s. They have thus grown further concerned, and want to seek counsel elsewhere. Client Mary is especially angry that neither attorney showed up to her master calendar hearing, as she had no idea what type of relief to tell the judge she was seeking. All clients want a return of funds paid. What problems might Lawyers Dave and Bill face now? What steps should Lawyers Dave and Bill have taken at the outset of the partnership, and along the way, to avoid these problems? AILA-DC 2012 FALL CONF. 333

26 U.S. Department of Justice Executive Office for Immigration Review Office of the Director 5107 Leesburg Pike, Suite 2600 Falls Church, Virginia FACT SHEET Contact: Office of Legislative and Public Affairs (in Espanol) (703) Fax: (703) Internet: March 20, 2009 EOIR s Disciplinary Program and Professional Conduct Rules for Immigration Attorneys and Representatives Questions and Answers re: Complaint Process Included In June 2000, the Executive Office for Immigration Review (EOIR) implemented a regulation, Professional Conduct for Practitioners Rules and Procedures, to protect the public, preserve the integrity of all immigration proceedings and adjudications, and maintain high professional standards among immigration practitioners. The term practitioners applies to private immigration attorneys and representatives who are authorized to represent aliens before EOIR s immigration courts and the Board of Immigration Appeals (BIA), EOIR s appellate component. It does not apply to government attorneys because they are subject to separate regulations and disciplinary procedures. The regulation was amended on December 18, 2008, (Federal Register 73 FR 76914) to enhance EOIR s Disciplinary Program for immigration attorneys and representatives. The new rules and procedures took effect on January 20, A list of the current grounds for discipline follows. EOIR s Grounds for Disciplining Attorneys and Representatives 1. Charging a grossly excessive fee; 2. Engaging in bribery or coercion; 3. Knowingly or with reckless disregard making a false statement or willfully misleading, misinforming, threatening, or deceiving any person; 4. Soliciting professional employment a practitioner is prohibited from distributing solicitation material in or around the premises of any building in which an immigration court is located; 5. Is subject to a final order of disbarment or suspension, or has resigned, while a disciplinary investigation or proceeding is pending, from practice before any state or federal court, or executive branch office or agency; (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 334

27 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 2 6. Knowingly or with reckless disregard making a false or misleading communication about qualifications or services (e.g., practitioners must be recognized as certified specialists in immigration law in order to refer to themselves as such); 7. Engaging in rude or insulting, or obnoxious conduct that would constitute contempt of court; 8. Having been convicted in any state or federal court of a serious crime; 9. Knowingly or with reckless disregard falsely certifying a copy of a document as being true and complete; 10. Engaging in frivolous behavior; 11. Engaging in conduct that constitutes ineffective assistance of counsel as found by an immigration judge, the BIA, or a federal court; 12. Repeatedly failing to appear for scheduled pre-hearing conferences or hearings in a timely manner without good cause; 13. Assisting a person other than a practitioner to practice law before EOIR; 14. Engaging in conduct that is prejudicial to the administration of justice; 15. Failing to provide competent representation to a client; 16. Failing to consult with a client concerning the objectives of the representation or abide by decisions of the client concerning how to achieve those objectives; 17. Failing to act with reasonable diligence and promptness; 18. Failing to maintain communication with a client; 19. Failing to disclose to an adjudicator, controlling legal authority known to the practitioner that is directly adverse to the position of the client if not disclosed by opposing counsel; 20. Failing to submit a signed Notice of Entry of Appearance in any case where the practitioner has engaged in practice or preparation as those terms are defined in the regulations; and 21. Repeatedly filing notices, motions, or briefs that contain boilerplate language that evidences a failure to competently and diligently represent the client. Filing a Complaint About an Immigration Attorney or Representative Any individual who believes that an immigration attorney or representative has engaged in criminal, unethical, or unprofessional conduct while practicing before EOIR may file a complaint with the EOIR Disciplinary Counsel. The complaint must be in writing and include relevant names, dates, locations, and other details sufficient to clearly identify the offending conduct or behavior. Individuals are encouraged to use a Form EOIR-44 to file a complaint. Office of Legislative and Public Affairs (more) AILA-DC 2012 FALL CONF. 335

28 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 3 Receiving and Investigating Complaints EOIR and DHS Authority EOIR s Disciplinary Counsel investigates alleged misconduct associated with practice before EOIR s immigration courts and the BIA. The EOIR Disciplinary Counsel will conduct a preliminary inquiry to determine if the complaint has merit. If the EOIR Disciplinary Counsel determines that the complaint has merit and that formal disciplinary sanctions should be imposed, the EOIR Disciplinary Counsel initiates formal disciplinary proceedings before EOIR s BIA. During the preliminary inquiry, the complaint remains confidential, with limited exceptions. All complaints concerning alleged misconduct associated with practice before the Department of Homeland Security (DHS) must be directed to DHS. (Practice before DHS relates to immigration benefit issues such as affirmative asylum, adjustment of status, and visa petitions.) DHS has similar conduct rules for attorneys and representatives (8 CFR 292.3). If DHS determines that a complaint has merit and that formal disciplinary sanctions should be imposed, DHS initiates formal disciplinary proceedings before EOIR s BIA. While EOIR and DHS receive and investigate their respective misconduct complaints separately under their respective conduct rules, both agencies initiate formal disciplinary proceedings before EOIR s BIA. Referring Complaints to Additional Authorities If a complaint about criminal conduct is found to have merit, it may also be referred to appropriate investigative or prosecutorial authorities within the Department of Justice or DHS. Complaints about unethical or unprofessional conduct may also be referred to appropriate state licensing authorities. Initiating Disciplinary Proceedings If a complaint is found to have merit, EOIR s Disciplinary Counsel or DHS may: Informally resolve the complaint through the issuance of a warning letter or informal admonition, or Enter into an agreement in lieu of discipline with a practitioner, or Initiate formal disciplinary proceedings, which can result in the suspension or expulsion of a practitioner from practicing before the immigration courts, the BIA, and DHS. Formal disciplinary proceedings begin when EOIR s Disciplinary Counsel or DHS issues a Notice of Intent to Discipline (NID) to the practitioner and files the NID with EOIR s BIA. The practitioner must respond to the NID within 30 days and, in the response, may request a hearing. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 336

29 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 4 Immediate Suspension While EOIR disciplinary proceedings are pending, the BIA may immediately suspend a practitioner who: Has been disbarred or suspended by a federal or state court, Has resigned from legal practice while a disciplinary investigation or proceeding is pending before a federal or state court, or Has been convicted of a serious crime. Failing to Respond to Allegations The BIA considers a practitioner s failure to respond to the allegations in the NID within 30 days as an admission of misconduct and a forfeiture of the right to a hearing. Consequently, when a practitioner fails to respond timely to the allegations in the NID, the BIA will issue a final order imposing the sanctions proposed in the NID. Requesting a Hearing When a practitioner requests a hearing, EOIR s Chief Immigration Judge will appoint an immigration judge as the adjudicating official who will conduct a hearing and render a decision in the case. The adjudicating official is not an immigration judge before whom the practitioner regularly appears or who is the complainant or a witness in the matter. The disciplinary hearing generally is open to the public. Disciplinary Decisions - Final Orders - Public Notification When the disciplinary proceedings are completed, EOIR issues a final order. EOIR regularly updates the public about disciplined attorneys and representatives who are no longer authorized to represent clients before the immigration courts, the BIA, and DHS by issuing news releases, available on EOIR s website at under Professional Conduct. EOIR also maintains a List of Currently Disciplined Practitioners on EOIR s website at Appealing a Disciplinary Decision The disciplined attorney or EOIR s Disciplinary Counsel may appeal an adjudicating official s decision to the BIA within 30 days. The BIA will conduct its appellate review of disciplinary decisions in the same way it reviews appeals of decisions in immigration proceedings. Disciplined attorneys or representatives may seek judicial review of a final BIA decision in their disciplinary case. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 337

30 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 5 Reinstatement Attorneys and representatives who are suspended or expelled must request reinstatement from the BIA. They must be granted reinstatement by the BIA before they can resume the practice of law before the immigration courts, the BIA, and DHS. Forms Below are the four EOIR forms that are mentioned in the professional conduct regulation. These forms are available at immigration courts and on EOIR s website at Form EOIR-28, Notice of Entry of Appearance before the Immigration Court Practitioners must file the Form EOIR-28 to enter an appearance with the immigration court. Form EOIR-27, Notice of Entry of Appearance before the BIA Practitioners must file the Form EOIR-27 to enter an appearance with the BIA. Form EOIR-45, Immigration Practitioner Appeal Form from an Adverse Decision of an Adjudicating Official in Practitioner Discipline Case Practitioners must use Form EOIR-45 to appeal to the BIA an adjudicating official s adverse decision resulting from a disciplinary proceeding. Form EOIR-44, Immigration Practitioner Complaint Form Individuals who seek to file a disciplinary complaint against an immigration practitioner who practices before EOIR may file a Form EOIR-44. However, a Form EOIR-44 is not required in order to file a complaint. Individuals may write and submit their own complaint statement or letter according to the instructions in the Questions and Answers section on the following page. Additional Information on the Complaint Process A series of questions and answers about the complaint process, for complainants as well as attorneys and representatives, follows on the next page. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 338

31 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 6 The Complaint Process: Questions and Answers for Complainants and Attorneys and Representatives How do I make a complaint against my immigration attorney or representative? If the complaint concerns the conduct of a private attorney or representative in a matter before the immigration courts, BIA, or DHS, you may submit a completed Form EOIR- 44, Immigration Practitioner Complaint Form, or you may write your own complaint statement or letter. Where can I get the Form EOIR-44 complaint form? The Form EOIR-44 complaint form is available at immigration courts and on EOIR s website at If I use the Form EOIR-44 complaint form, what additional information should I provide? Along with your completed Form EOIR-44, you may also submit supporting documents and information, such as: Correspondence between you and your attorney or representative, Documents concerning the underlying immigration case (including the case name and number), and Copies of filings in connection with the case. If I don t use the Form EOIR-44 complaint form, and instead write my own complaint statement or letter, what information should I provide? Your statement or letter must include. Your name and address, The attorney s or representative s name and address, An explanation of the circumstances and details of your complaint, and Your signature. Along with your complaint statement or letter, you may also submit supporting documents and information, such as: Correspondence between you and your attorney or representative, Documents concerning the underlying immigration case (including the case name and number), and Copies of filings in connection with the case. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 339

32 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 7 Where do I send a complaint against my immigration attorney or representative? If the complaint concerns the conduct of a private attorney or representative in a matter before EOIR s immigration courts or the BIA, send your completed Form EOIR-44 or your own complaint statement or letter with any supporting documents or information to: Executive Office for Immigration Review ATTN: Disciplinary Counsel 5107 Leesburg Pike, Suite 2600 Falls Church, VA If the complaint concerns the conduct of a private attorney or representative in a matter before DHS, send your Form EOIR-44 or your own complaint statement or letter with any supporting documents or information to: U.S. Citizenship and Immigration Services 70 Kimball Avenue, Room #103 Burlington, VT Can I call EOIR or DHS to make my complaint against my immigration attorney or representative over the telephone? No. Neither EOIR nor DHS can accept complaints over the telephone. After I file a complaint with EOIR, what will happen next? After you file a complaint with EOIR: Your complaint will be reviewed by EOIR s Disciplinary Counsel to determine whether it should be investigated further. If so, an investigation will be conducted. After the investigation, EOIR s Disciplinary Counsel determines whether there has been a violation of the professional conduct rules for practitioners. If so, EOIR s Disciplinary Counsel may either impose informal discipline (e.g., issue a warning letter or informal admonition), or initiate formal disciplinary proceedings seeking the expulsion, suspension, or censure of the immigration attorney or representative. Will EOIR inform me of the status of my complaint? Yes. EOIR will notify you when your complaint has been received and will inform you of the outcome of your complaint. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 340

33 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 8 Will I have to testify against my immigration attorney or representative? Yes, you may be called to testify if a hearing is held. Your testimony may be important in determining whether your attorney or representative violated the professional conduct rules for practitioners. Can EOIR get my money back for me and find another attorney or representative to represent me? No. EOIR cannot: Require your attorney to give you your money back, Force your attorney to act for you or tell your attorney how to proceed with your case, Give you legal advice about your case or otherwise represent you, or Recommend a particular attorney or law firm. However, EOIR provides a list of Free Legal Service Providers on its website at How do I know if an immigration attorney or representative is currently disciplined by EOIR and, therefore, is not authorized to represent clients? EOIR regularly updates the public about disciplined attorneys and representatives who are no longer authorized to represent clients before the immigration courts, the BIA, and DHS by issuing news releases, which are available on EOIR s website at under Professional Conduct. EOIR also maintains a List of Currently Disciplined Practitioners on EOIR s website at For Attorneys and Representatives: What if one of my clients files a frivolous complaint against me? Every complaint will be investigated thoroughly. If the investigation concludes that no violation of the professional conduct rules has occurred, the matter will be closed. During the preliminary inquiry, the complaint remains confidential, with limited exceptions. Am I entitled to be represented by counsel in a disciplinary proceeding? You are entitled to be represented by counsel at no expense to the government or, if you so choose, you may represent yourself. (more) Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 341

34 EOIR s Disciplinary Program for Immigration Attorneys and Representatives Page 9 Where can I get the notice of appearance forms (Form EOIR-27 and Form EOIR-28), the complaint form (Form EOIR-44), and the appeal form (Form EOIR-45) for a practitioner discipline case? These forms are available at immigration courts and on EOIR s website at EOIR The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIR s immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals who are charged by the Department of Homeland Security with violating immigration law should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR s Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates. Office of Legislative and Public Affairs AILA-DC 2012 FALL CONF. 342

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84 VIRGINIA: BEFORE THE FIFTH DISTRICT-SECTION III SUBCOMMITTEE OF THE VIRGINIA STATE BAR IN THE MATTER OF PAUL ANDREW MURPHY, ESQUIRE VSB Docket No SUBCOMMITTEE DETERMINATION PUBLIC ADMONITION, WITH TERMS On June 9,2011, a meeting in this matter was held before a duly convened Fifth District- Section ill Subcommittee consisting ofmichelle Renee Robl, Esq., Daniel H. Aminoff, lay person, and Kathleen Latham Farrell, Esq., presiding, to review an Agreed Disposition reached by the parties. Pursuant to the provisions ofthe Rules of the Supreme Court ofvirginia, Part 6, Section N, Paragraph B4.a., the Fifth District--Section III Subcommittee ofthe Virginia State Bar accepts the proposed Agreed Disposition and hereby serves upon the Respondent the following Public Admonition, with Terms, as set forth below: I. FINDINGS OF FACT 1. At all times relevant hereto, Paul Andrew Murphy ("Respondent"), has been an attorney licensed to practice law in the Commonwealth ofvirginia. 2. On or around March 24, 2008, Complainant, Tidiane Toure, retained the Respondent to assist him with an immigration matter, paying him $1, in cash on that date. Respondent advised Complainant that it would be necessary for him to return to his office with his wife so that the necessary forms could be completed. 3. On March 24,2008, the Respondent presented Complainant with a written "Agreement for legal service" which Mr. Toure signed at that time. The agreement purports to outline the Respondent's fee structure for the representation, but it was incomprehensible and impossible to understand. 4. On the following day, March 25,2008, Complainant returned to Respondent's office with his wife, Yasmin. At that time, Complainant and his wife were advised by Respondent that they would be required to pay him additional fees. When they objected to the AILA-DC 2012 FALL CONF. 392

85 additional fees, a dispute ensued, with the Complainant contending that he was entitled to a refund offees, and the Respondent maintaining that he had earned what had been paid to him. 5. The Complainant terminated the Respondent's representation. II. NATURE OF :MISCONDUCT The Subcommittee finds that the following provision of the Rules ofprofessional Conduct has been violated: RULE 1.5 (b) Fees The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate ofthe fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. III. PUBLIC ADMONITION, WITH TERMS Accordingly, it is the decision of the Subcommittee to offer the Respondent an opportunity to comply with certain Terms, compliance with which shall be a predicate for the disposition of this complaint by imposition of a PUBLIC ADMONITION, WITH TERMS. The Terms are as follows: The Respondent shall conform every written fee agreement which he uses in his practice of law to the requirements ofrules ofprofessional Conduct 1.5 and 1.15, and Legal Ethics Opinion Within thirty (30) days following the date of issuance ofthis Determination, the Respondent must submit for his approval to Seth M. Guggenheim, Senior Assistant Bar Counsel, at 707 East Main Street, Suite 1500, Richmond, Virginia , one sample copy of every such written fee agreement. Upon Respondent's compliance with the Terms set forth herein, a PUBLIC ADMONITION, WITH TERMS, shall be imposed. If, however, Respondent violates any of the Terms set forth herein, then, and in such event, the Committee shall, as an alternative disposition 2 AILA-DC 2012 FALL CONF. 393

86 to a Public Admonition, with Tenns, certify this matter to the Virginia State Bar Disciplinary Board for proceedings to be conducted pursuant to the Rules ofthe Supreme Court of Virginia, Part 6, Section IV, Paragraph ("Board Proceedings Upon Certification for Sanction Detennination"). IV. COSTS Pursuant to Part Six, Section IV, Paragraph 13-9E. ofthe Rules ofthe Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs against the Respondent. By T-SECTION III SUBCOMMITTEE VIRGINIA STATE BAR -d-du~ Kathleen Latham Farrell Chair 3 AILA-DC 2012 FALL CONF. 394

87 CERTIFICATE OF SERVICE I hereby certify that on I caused to be mailed by Certified Mail, a true and complete copy the Subcommittee Detennination (Public Admonition, with Tenns) to Paul Andrew Murphy, Esq., Suite 404, 6231 Leesburg Pike, Falls Church, VA 22044, and by first-class, regular mail, to Respondent's counsel, David Ross Rosenfeld, Esq., at 118 South Royal Street, Alexandria, VA Senior Assistant Bar Counsel 4 AILA-DC 2012 FALL CONF. 395

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93 DISTRICT OF COLUMBIA RULES OF PROFESSIONAL CONDUCT Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication. Rule 1.5 Fees (a) A lawyer s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;> (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; AILA-DC 2012 FALL CONF. 401

94 (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent. (b) When the lawyer has not regularly represented the client, the basis or rate of the fee, the scope of the lawyer s representation, and the expenses for which the client will be responsible shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation, other expenses to be deducted from the recovery, whether such expenses are to be deducted before or after the contingent fee is calculated, and whether the client will be liable for expenses regardless of the outcome of the matter. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: AILA-DC 2012 FALL CONF. 402

95 (1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. (2) The client is advised, in writing, of the identity of the lawyers who will participate in the representation, of the contemplated division of responsibility, and of the effect of the association of lawyers outside the firm on the fee to be charged; (3) The client gives informed consent to the arrangement; and (4) The total fee is reasonable. (f) Any fee that is prohibited by paragraph (d) above or by law is per se unreasonable. Rule 1.7 Conflict of Interest: General Rule This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, As of February 1, 2007, the Amended Rules took effect. (a) A lawyer shall not advance two or more adverse positions in the same matter. (b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: (1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer; (2) Such representation will be or is likely to be adversely affected by representation of another client; (3) Representation of another client will be or is likely to be adversely affected by such representation; AILA-DC 2012 FALL CONF. 403

96 (4) The lawyer s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer s responsibilities to or interests in a third party or the lawyer s own financial, business, property, or personal interests. (c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if each potentially affected client provides consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation. (d) If a conflict not reasonably foreseeable at the outset of representation arises under paragraph (b)(1) after the representation commences, and is not waived under paragraph (c), a lawyer need not withdraw from any representation unless the conflict also arises under paragraphs (b)(2), (b)(3), or (b)(4). Rule 1.8 Conflict of Interest: Specific Rules (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) The client gives informed consent in writing thereto. AILA-DC 2012 FALL CONF. 404

97 (b) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close familial relationship. (c) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (d) While representing a client in connection with contemplated or pending litigation or administrative proceedings, a lawyer shall not advance or guarantee financial assistance to the client, except that a lawyer may pay or otherwise provide: (1) The expenses of litigation or administrative proceedings, including court costs, expenses of investigation, expenses or medical examination, costs of obtaining and presenting evidence; and (2) Other financial assistance which is reasonably necessary to permit the client to institute or maintain the litigation or administrative proceedings. (e) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent after consultation; (2) There is no interference with the lawyer s independence of professional judgment or with the client-lawyer relationship; and (3) Information relating to representation of a client is protected as required by Rule 1.6. AILA-DC 2012 FALL CONF. 405

98 (f) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims for or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent in a writing signed by the client after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (g) A lawyer shall not: (1) Make an agreement prospectively limiting the lawyer s liability to a client for malpractice; or (2) Settle a claim or potential claim for malpractice arising out of the lawyer s past conduct with unrepresented client or former client unless that person is advised in writing of the desirability of seeking the advice of independent legal counsel and is given a reasonable opportunity to do so in connection therewith. (h) A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon informed consent by the client after consultation regarding the relationship. (i) A lawyer may acquire and enforce a lien granted by law to secure the lawyer s fees or expenses, but a lawyer shall not impose a lien upon any part of a client s files, except upon the lawyer s own work product, and then only to the extent that the work product has not been paid for. This work product exception shall not apply when the client has become unable to pay, or when withholding the lawyer s work product would present a significant risk to the client of irreparable harm. AILA-DC 2012 FALL CONF. 406

99 (j) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (g) and (i) that applies to any one of them shall apply to all of them. Rule 1.9 Conflict of Interest: Former Client A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person s interests are materially adverse to the interests of the former client unless the former client gives informed consent. Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in the lawyer s possession in connection with a representation separate from the lawyer s own property. Funds of clients or third persons that are in the lawyer s possession (trust funds) shall be kept in one or more trust accounts maintained in accordance with paragraph (b). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) All trust funds shall be deposited with an approved depository as that term is defined in Rule XI of the Rules Governing the District of Columbia Bar. Trust funds that are nominal in amount or expected to be held for a short period of time, and as such would not be expected to earn income for a client or third-party in excess of the costs incurred to secure such income, shall be held at an approved depository and in compliance with the District of Columbia s Interest on Lawyers Trust Account (DC AILA-DC 2012 FALL CONF. 407

100 IOLTA) program. The title on each DC IOLTA account shall include the name of the lawyer or law firm that controls the account, as well as DC IOLTA Account or IOLTA Account. The title on all other trust accounts shall include the name of the lawyer or law firm that controls the account, as well as Trust Account or Escrow Account. The requirements of this paragraph (b) shall not apply when a lawyer is otherwise compliant with the contrary mandates of a tribunal; or when the lawyer is participating in, and compliant with, the trust accounting rules and the IOLTA program of the jurisdiction in which the lawyer is licensed and principally practices. (c) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6. (d) When in the course of representation a lawyer is in possession of property in which interests are claimed by the lawyer and another person, or by two or more persons to each of whom the lawyer may have an obligation, the property shall be kept separate by the lawyer until there is an accounting and severance of interests in the property. If a dispute arises concerning the respective interests among persons claiming an interest in such property, the undisputed portion shall be distributed and the portion in dispute shall be AILA-DC 2012 FALL CONF. 408

101 kept separate by the lawyer until the dispute is resolved. Any funds in dispute shall be deposited in a separate account meeting the requirements of paragraph (a) and (b). (e) Advances of unearned fees and unincurred costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred unless the client gives informed consent to a different arrangement. Regardless of whether such consent is provided, Rule 1.16(d) applies to require the return to the client of any unearned portion of advanced legal fees and unincurred costs at the termination of the lawyer s services in accordance with Rule 1.16(d). (f) Nothing in this rule shall prohibit a lawyer from placing a small amount of the lawyer s funds into a trust account for the sole purpose of defraying bank charges that may be made against that account. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) The representation will result in violation of the Rules of Professional Conduct or other law; (2) The lawyer s physical or mental condition materially impairs the lawyer s ability to represent the client; or (3) The lawyer is discharged. AILA-DC 2012 FALL CONF. 409

102 (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) The client persists in a course of action involving the lawyer s services that the lawyer reasonably believes is criminal or fraudulent; (2) The client has used the lawyer s services to perpetrate a crime or fraud; (3) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (4) The representation will result in an unreasonable financial burden on the lawyer or obdurate or vexatious conduct on the part of the client has rendered the representation unreasonably difficult; (5) The lawyer believes in good faith, in a proceeding before a tribunal, that the tribunal will find the existence of other good cause for withdrawal. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any AILA-DC 2012 FALL CONF. 410

103 advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by Rule 1.8(i). Rule 7.1 Communications Concerning a Lawyer s Services (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false or misleading if it: (1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or (2) Contains an assertion about the lawyer or the lawyer s services that cannot be substantiated. (b) (1) A lawyer shall not seek by in-person contact, employment (or employment of a partner or associate) by a nonlawyer who has not sought the lawyer s advice regarding employment of a lawyer, if: (A) The solicitation involves use of a statement or claim that is false or misleading, within the meaning of paragraph (a); (B) The solicitation involves the use of coercion, duress or harassment; or (C) The potential client is apparently in a physical or mental condition which would make it unlikely that the potential client could exercise reasonable, considered judgment as to the selection of a lawyer. (2) A lawyer shall not give anything of value to a person (other than the lawyer s partner or employee) for recommending the lawyer s services through in-person contact. (c) A lawyer shall not knowingly assist an organization that furnishes or pays for legal services to others to promote the use of the lawyer s services or those of the lawyer s AILA-DC 2012 FALL CONF. 411

104 partner or associate, or any other lawyer affiliated with the lawyer or the lawyer s firm, as a private practitioner, if the promotional activity involves the use of coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. (d) No lawyer or any person acting on behalf of a lawyer shall solicit or invite or seek to solicit any person for purposes of representing that person for a fee paid by or on behalf of a client or under the Criminal Justice Act, D.C. Code Ann (2001) et seq., in any present or future case in the District of Columbia Courthouse, on the sidewalks on the north, south, and west sides of the courthouse, or within 50 feet of the building on the east side. (e) Any lawyer or person acting on behalf of a lawyer who solicits or invites or seeks to solicit any person incarcerated at the District of Columbia Jail, the Correctional Treatment Facility or any District of Columbia juvenile detention facility for the purpose of representing that person for a fee paid by or on behalf of that person or under the Criminal Justice Act, D.C. Code Ann (2001) et seq., in any then-pending criminal case in which that person is represented, must provide timely and adequate notice to the person s then-current lawyer prior to accepting any fee from or on behalf of the incarcerated person. AILA-DC 2012 FALL CONF. 412

105 MARYLAND RULES OF PROFESSIONAL CONDUCT Rule 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.5 Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer; (3) the fee customarily charged in the locality for similar legal services; AILA-DC 2012 FALL CONF. 413

106 (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination. AILA-DC 2012 FALL CONF. 414

107 (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or custody of a child or upon the amount of alimony or support or property settlement, or upon the amount of an award pursuant to Md. Code, Family Law Article, through 213; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the joint representation and the agreement is confirmed in writing; and (3) the total fee is reasonable. Rule 1.7 Conflict of Interest: General Rule (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A 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. AILA-DC 2012 FALL CONF. 415

108 (b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 1.8 Conflict of Interest: Current Clients: Specific Rules (a) A lawyer shall not enter into a business transaction with a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. AILA-DC 2012 FALL CONF. 416

109 (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; AILA-DC 2012 FALL CONF. 417

110 (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client or confirmed on the record before a tribunal. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) subject to Rule 1.5, contract with a client for a reasonable contingent fee in a civil case. AILA-DC 2012 FALL CONF. 418

111 (j) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. Rule 1.9 Duties to Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) from whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or AILA-DC 2012 FALL CONF. 419

112 (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created. (b) A lawyer may deposit the lawyer's own funds in a client trust account only as permitted by Rule b. (c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer's own benefit only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver AILA-DC 2012 FALL CONF. 420

113 promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property. (e) When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Maryland Lawyers' Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; AILA-DC 2012 FALL CONF. 421

114 (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. AILA-DC 2012 FALL CONF. 422

115 Rule 7.1 Communications Concerning a Lawyer's Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law; or (c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. Rule 7.2 Advertising (a) Subject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact. (b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used. (c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may AILA-DC 2012 FALL CONF. 423

116 (1) pay the reasonable cost of advertising or written communication permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; (3) pay for a law practice purchased in accordance with Rule 1.17; and (4) refer clients to a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (d) Any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content. (e) An advertisement or communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses. Cross References: Maryland Lawyers' Rules of Professional Conduct, Rule 1.8(e). (f) A lawyer, including a participant in an advertising group or lawyer referral service or other program involving communications concerning the lawyer's services, shall be personally responsible for compliance with the provisions of Rules 7.1, 7.2, 7.3, 7.4, and 7.5 and shall be prepared to substantiate such compliance. AILA-DC 2012 FALL CONF. 424

117 Rule 7.3 Direct Contact with Prospective Clients (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contract even when not otherwise prohibited by paragraph (a), if: (1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer; (2) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (3) the solicitation involves coercion, duress, or harassment. (c) Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). AILA-DC 2012 FALL CONF. 425

118 (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. AILA-DC 2012 FALL CONF. 426

119 VIRGINIA RULES OF PROFESSIONAL CONDUCT Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. Rule 1.5 Fees (a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and AILA-DC 2012 FALL CONF. 427

120 (8) whether the fee is fixed or contingent. (b) The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall state in writing the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee: (1) in a domestic relations matter, except in rare instances; or (2) for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the client is advised of and consents to the participation of all the lawyers involved; (2) the terms of the division of the fee are disclosed to the client and the client consents thereto; AILA-DC 2012 FALL CONF. 428

121 (3) the total fee is reasonable; and (4) the division of fees and the client's consent is obtained in advance of the rendering of legal services, preferably in writing. (f) Paragraph (e) does not prohibit or regulate the division of fees between attorneys who were previously associated in a law firm or between any successive attorneys in the same matter. In any such instance, the total fee must be reasonable. Rule 1.7 Conflict of Interest (a) 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 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. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph(a), a lawyer may represent a client if each affected client consents after consultation, and: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and AILA-DC 2012 FALL CONF. 429

122 (4) the consent from the client is memorialized in writing. Rule 1.8 Conflict of Interest (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) the client consents in writing thereto. (b) A lawyer shall not use information relating to representation of a client for the advantage of the lawyer or of a third person or to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 or Rule 3.3. (c) A lawyer shall not solicit, for himself or a person related to the lawyer, any substantial gift from a client including a testamentary gift. A lawyer shall not accept any such gift if solicited at his request by a third party. A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift from a client, including a testamentary gift, unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, a person related to a lawyer includes a spouse, child, grandchild, parent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. AILA-DC 2012 FALL CONF. 430

123 (d) Prior to the conclusion of all aspects of a matter giving rise to the representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, provided the client remains ultimately liable for such costs and expenses; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not make an agreement prospectively limiting the lawyer s liability to a client for malpractice, except that a lawyer may make such an agreement with a client AILA-DC 2012 FALL CONF. 431

124 of which the lawyer is an employee as long as the client is independently represented in making the agreement. (i) A lawyer related to another lawyer as parent, child, sibling or spouse, or who is intimately involved with another lawyer, shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship. (j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case, unless prohibited by Rule 1.5. (k) While lawyers are associated in a firm, none of them shall knowingly enter into any transaction or perform any activity when one of them practicing alone would be prohibited from doing so by paragraphs (a), (b), (c), (d), (e), (f), (g), (h), or (j) of this Rule. Rule 1.9 Conflict of Interest (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation. AILA-DC 2012 FALL CONF. 432

125 (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless both the present and former client consent after consultation. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to or gained in the course of the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client. Rule 1.15 Safekeeping Property (a)depositing Funds. (1) All funds received or held by a lawyer or law firm on behalf of a client or a third party, or held by a lawyer as a fiduciary, other than reimbursement of advances for costs and expenses shall be deposited in one or more identifiable trust accounts or placed in a safe deposit box or other place of safekeeping as soon as practicable. AILA-DC 2012 FALL CONF. 433

126 (2) For lawyers or law firms located in Virginia, a lawyer trust account shall be maintained only at a financial institution approved by the Virginia State Bar, unless otherwise expressly directed in writing by the client for whom the funds are being held. (3) No funds belonging to the lawyer or law firm shall be deposited or maintained therein except as follows: (i) funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution or to maintain a required minimum balance to avoid the imposition of service fees, provided the funds deposited are no more than necessary to do so; or (ii) funds in which two or more persons (one of whom may be the lawyer) claim an interest shall be held in the trust account until the dispute is resolved and there is an accounting and severance of their interests. Any portion finally determined to belong to the lawyer or law firm shall be withdrawn promptly from the trust account. (b) Specific Duties. A lawyer shall: (1) promptly notify a client of the receipt of the client s funds, securities, or other properties; (2) identify and label securities and properties of a client, or those held by a lawyer as a fiduciary, promptly upon receipt; (3) maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accountings to the client regarding them; (4) promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer that such person is entitled to receive; and AILA-DC 2012 FALL CONF. 434

127 (5) not disburse funds or use property of a client or third party without their consent or convert funds or property of a client or third party, except as directed by a tribunal. (c) Record-Keeping Requirements. A lawyer shall, at a minimum, maintain the following books and records demonstrating compliance with this Rule: (1) Cash receipts and disbursements journals for each trust account, including entries for receipts, disbursements, and transfers, and also including, at a minimum: an identification of the client matter; the date of the transaction; the name of the payor or payee; and the manner in which trust funds were received, disbursed, or transferred from an account. (2) A subsidiary ledger containing a separate entry for each client, other person, or entity from whom money has been received in trust. The ledger should clearly identify: (i) the client or matter, including the date of the transaction and the payor or payee and the means or methods by which trust funds were received, disbursed or transferred; and (ii) any unexpended balance. (3) In the case of funds or property held by a lawyer as a fiduciary, the required books and records shall include an annual summary of all receipts and disbursements and changes in assets comparable in detail to an accounting that would be required of a court supervised fiduciary in the same or similar capacity; including all source documents sufficient to substantiate the annual summary. (4) All records subject to this Rule shall be preserved for at least five calendar years after termination of the representation or fiduciary responsibility. (d) AILA-DC 2012 FALL CONF. 435

128 Required Trust Accounting Procedures. In addition to the requirements set forth in Rule 1.15 (a) through (c), the following minimum trust accounting procedures are applicable to all trust accounts. (1) Insufficient Fund Reporting. All accounts are subject to the requirements governing insufficient fund check reporting as set forth in the Virginia State Bar Approved Financial Institution Agreement. (2) Deposits. All trust funds received shall be deposited intact. Mixed trust and non-trust funds shall be deposited intact into the trust fund and the non-trust portion shall be withdrawn upon the clearing of the mixed fund deposit instrument. All such deposits should include a detailed deposit slip or record that sufficiently identifies each item. (3) Reconciliations. (i) At least quarterly a reconciliation shall be made that reflects the trust account balance for each client, person or other entity. (ii) A monthly reconciliation shall be made of the cash balance that is derived from the cash receipts journal, cash disbursements journal, the trust account checkbook balance and the trust account bank statement balance. (iii) At least quarterly, a reconciliation shall be made that reconciles the cash balance from (d)(3)(ii) above and the subsidiary ledger balance from (d)(3)(i). (iv) Reconciliations must be approved by a lawyer in the law firm. (4) The purpose of all receipts and disbursements of trust funds reported in the trust journals and ledgers shall be fully explained and supported by adequate records. AILA-DC 2012 FALL CONF. 436

129 Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or unjust; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good cause for withdrawal exists. AILA-DC 2012 FALL CONF. 437

130 (c) In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e). (e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and, therefore, upon termination of the representation, those items shall be returned within a reasonable time to the client or the client s new counsel upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Also upon termination, the client, upon request, must also be provided within a reasonable time copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); transcripts, pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; research materials; and bills previously submitted to the client. Although AILA-DC 2012 FALL CONF. 438

131 the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship. The lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required. The lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation. Rule 7.1 Communications about a Lawyer's Services (a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication violates this Rule if it: (1) contains false or misleading information; or (2) states or implies that the outcome of a particular legal matter was not or will not be related to its facts or merits; or (3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or AILA-DC 2012 FALL CONF. 439

132 (4) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law. (b) Public communication means all communication other than "in-person" communication as defined by Rule 7.3. Rule 7.2 Advertising (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communications, including public media. In the determination of whether an advertisement violates this Rule, the advertisement shall be considered in its entirety, including any qualifying statements or disclaimers contained therein. Notwithstanding the requirements of Rule 7.1, an advertisement violates this Rule if it: (1) contains an endorsement by a celebrity or public figure who is not a client of the firm without disclosure (i) of the fact that the speaker is not a client of the lawyer or the firm, and (ii) whether the speaker is being paid for the appearance or endorsement; or (2) contains a portrayal of a client by a non-client without disclosure that the depiction is a dramatization; or (3)advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. When the communication AILA-DC 2012 FALL CONF. 440

133 is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results. (b) A recording of the actual electronic media advertisement shall be approved by the lawyer prior to its broadcast and retained by the lawyer for a period of one year following the last broadcast date, along with a record of when and where it was used, which recording and date shall be provided to the Standing Committee on Legal Ethics upon its request. (c) A lawyer shall not give anything of value to a person for recommending the lawyer s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a not-for-profit lawyer referral service or legal service organization; and (3) pay for a law practice in accordance with Rule (d) A written or communication that bears the lawyer's or firm's name and the purpose of which in whole or in part is an initial contact to promote employment for a fee, sent to a prospective non-lawyer client who is not: (1) a close friend, relative, current client, former client; or (2) one who has initiated contact with the attorney; or (3) one who is similarly situated with a current client of the attorney with respect to a specific matter being handled by the attorney, to the extent that the prospective client's rights may be reasonably expected to be materially affected by the outcome of the matter; AILA-DC 2012 FALL CONF. 441

134 shall be identified by conspicuous display of the statement in upper case letters ADVERTISING MATERIAL. The required statement shall be displayed in the lower left hand corner of the address portion of the communication in type size at least equal to the largest type used on the communication and also on the front of the first page of the communication in type size at least equal to the largest type used on the page. Further, in the case of advertising or solicitation, the header shall also display the statement, in uppercase letters, ADVERTISING MATERIAL. Further, any such written communication shall not be sent by registered mail or other forms of restricted delivery, nor shall such written communication be sent to any person who has made known to the lawyer a desire not to receive communications from the lawyer. Lawyers who advertise or solicit by shall include instructions of how the recipient of such communications may notify the sender that they wish not to receive such communications in the future. This paragraph does not apply to any communication which is directed to be sent by a court or tribunal, or otherwise required by law. (e) Advertising made pursuant to this Rule shall include the full name and office address of an attorney licensed to practice in Virginia who is responsible for its content or, in the alternative, a law firm may file with the Virginia State Bar a current written statement AILA-DC 2012 FALL CONF. 442

135 identifying the responsible attorney for the law firm s advertising and its office address, and the firm shall promptly notify the Virginia State Bar in writing of any change in status. Rule 7.3 Direct Contact with Prospective Clients and Recommendation of Professional Employment (a) A lawyer shall not, by inperson communication, solicit employment as a private practitioner for the lawyer, a partner, or associate or any other lawyer affiliated with the lawyer or the firm from a nonlawyer who has not sought advice regarding employment of a lawyer if: (1) such communication contains a false, fraudulent, misleading, or deceptive statement or claim; or (2) such communication has a substantial potential for or involves the use of coercion, duress, compulsion, intimidation, threats, unwarranted promises of benefits, over persuasion, overreaching, or vexatious or harassing conduct, taking into account the sophistication regarding legal matters, the physical, emotional or mental state of the person to whom the communication is directed and the circumstances in which the communication is made. In-person communication means face to face communication and telephonic communication. (b) A lawyer shall not assist in, cooperate with, or offer any qualified legal services plan or assist in or cooperate with any insurer providing legal services insurance as authorized AILA-DC 2012 FALL CONF. 443

136 by law to promote the use of services or those of the lawyer s partner or associate or any other lawyer affiliated with the lawyer or the firm if that assistance, cooperation or offer, and the communications of the organization, are not in accordance with the standards of this Rule or Rule 7.1 and 7.2, as appropriate. (c) A lawyer shall not assist a nonprofit organization which provides without charge legal services to others as a form of political or associational expression to promote the use of services or those of the lawyer s partner or associate or any other lawyer affiliated with the lawyer or the firm if: (1) the assistance or the communications of the organization on the lawyer s behalf are false, fraudulent, misleading, or deceptive; or (2) the assistance or the communications of the organization on the lawyer s behalf involve the use of coercion, duress, compulsion, intimidation, threats, unwarranted promises of benefits, over persuasion, overreaching, or vexatious or harassing conduct, taking into account the physical, emotional or mental state of the person to whom the communication is directed and the circumstances in which the communication is made. (d) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that the lawyer may pay for public communications permitted by Rule 7.1 and 7.2 and the usual and reasonable fees or dues charged by a lawyer referral service and any qualified legal services plan or contract of legal services insurance as authorized by law, provided that such communications of the service or plan are in accordance with the standards of this Rule or Rule 7.1 and 7.2, as appropriate. AILA-DC 2012 FALL CONF. 444

137 (e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks the lawyer s services does so as a result of any person's conduct which is prohibited under this Rule. (f) Notwithstanding any other provisions of this Rule, a lawyer shall not initiate inperson solicitation of professional employment for compensation in a personal injury or wrongful death claim of a prospective client with whom the lawyer has no family or prior professional relationship. Inperson solicitation means facetoface communication and telephone communication. AILA-DC 2012 FALL CONF. 445

138 TRACK 1 - AFTERNOON - FAMILY BASED IMMIGRATION: DACA AND OTHER POSSIBLE REMEDIES FOR IMMIGRANT YOUTH: MATERIALS AILA-DC 2012 FALL CONF. 446

139 Secretary U.S. Department of Homeland Security Washington, DC Homeland Security June 15, 2012 MEMORANDUM FOR: David V. Aguilar Acting Commissioner, U.S. Customs and Border Protection Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services John Morton Director, U.S. Immigration and Customs Enforcement FROM: Janet Napolitano {/ J-- /J ~ 1 Secretary ofhomejj/ntr8'ecurfty / SUBJECT: Exercising Proset orial Discretion with Respect to Individuals Who Came to thei.jnited States as Children By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review ofpending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities. The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum: came to the United States under the age of sixteen; has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date ofthis memorandum; is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces ofthe United States; has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and is not above the age of thirty. AILA-DC 2012 FALL CONF. 447

140 Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here. As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases. 1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS): With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. 2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria: ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States. ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process. ICE is directed to begin implementing this process within 60 days of the date of this memorandum. ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review. 3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check: USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the 2 AILA-DC 2012 FALL CONF. 448

141 above criteria and are at least 15 years old, for a period oftwo years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age. US CIS is directed to begin implementing this process within 60 days ofthe date ofthis memorandum. For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise ofdiscretion within the framework of the existing law. I have done so here. ~jjz~ 3 AILA-DC 2012 FALL CONF. 449

142 PRACTICE ADVISORY 1 August 20, 2012 DEFERRED ACTION FOR CHILDHOOD ARRIVALS On June 15, 2012, Department of Homeland Security (DHS) Secretary Janet Napolitano issued a memorandum to U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) explaining how prosecutorial discretion should be applied to individuals who came to the United States as children. Specifically, the memorandum directs that certain young people who do not present a risk to national security or public safety and meet specified criteria will be eligible to receive deferred action for two years, subject to renewal, and to apply for work authorization. Requests are to be decided on a case-by-case basis, and applicants must pass a background check before they can receive deferred action. The memorandum builds on prior DHS guidance regarding the exercise of prosecutorial discretion in low priority cases. 2 Since June, USCIS has issued FAQs providing more details about the eligibility criteria and application process for deferred action for childhood arrivals (DACA), as well as an application form and instructions. USCIS will receive and review DACA applications for all applicants except individuals in immigration detention, who instead are instructed to contact their deportation officer or the ICE Office of the Public Advocate. Individuals who meet the eligibility criteria may apply for DACA by submitting Form I-821D, Consideration of Deferred Action for Childhood Arrivals, accompanied by Form I-765 Application for Employment Authorization and Form I-765WS Worksheet, and requisite fees totaling $465. Note that the I- 1 Copyright (c) 2012 American Immigration Council. Click here for information on reprinting this practice advisory. This practice advisory is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client s case. The American Immigration Council s Legal Action Center, the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild co-authored this practice advisory. 2 For information on prior prosecutorial discretion guidance, see the Legal Action Center s Practice Advisories, DHS Review of Low Priority Cases for Prosecutorial Discretion (updated February 13, 2012) and Prosecutorial Discretion: How to Advocate for Your Client (June 24, 2011). AILA-DC 2012 FALL CONF. 450

143 821D will not be considered if not concurrently filed with Form I-765, the I-765WS, and required fee. The DACA policy does not supersede ICE s previously issued prosecutorial discretion guidance outlined in the June 17, 2011 Morton memo. For clients who do not meet the narrow eligibility criteria under DACA, attorneys should continue to assess the viability of deferred action requests or other requests for prosecutorial discretion based on the prior guidance. Such requests should be submitted to the local ICE Office of Chief Counsel or Field Office Director, as appropriate. What is deferred action? Deferred action is a discretionary decision by DHS not to pursue enforcement against a person for a specific period. A grant of deferred action does not alter an individual s existing immigration status or provide a path to citizenship. 3 Thus, deferred action cannot be used to establish eligibility for an immigration status that requires maintenance of lawful status. Deferred action, however, may allow a person to qualify for certain state benefits, such as drivers licenses, though state requirements vary. While deferred action does not cure any prior or subsequent period of unlawful presence, time in deferred action status is considered a period of stay authorized by the Secretary of DHS. An individual does not accrue unlawful presence for purposes of INA 212(a)(9)(B) and (C)(i)(I) while in deferred action status 4 or while a DACA application is pending if the individual filed a request before reaching age 18. DHS can renew or terminate a grant of deferred action at any time. What are the eligibility criteria for DACA? To establish eligibility for DACA, individuals must demonstrate that they: Were under the age of 31 on June 15, 2012, Arrived in the United States before reaching their 16th birthday, Continuously resided in the United States from June 15, 2007, to the present, Were physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from USCIS, Entered without inspection before June 15, 2012, or any lawful immigration status expired on or before June 15, 2012, 5 3 See ICE Detention and Removal Operations Policy and Procedure Manual 1.2, 20.8(a) (2006). 4 See Donald Neufeld, Acting Assoc. Dir., USCIS, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act (May 6, 2009) at 7. 5 Individuals without lawful status as of June 15, 2012, are eligible for DACA regardless of whether any applications for immigration benefits or relief from removal were pending on that date. 2 AILA-DC 2012 FALL CONF. 451

144 On the date of application, are in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the U.S. Coast Guard or the U.S. Armed Forces, 6 Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, and do not otherwise pose a threat to national security or public safety. Determinations will be made on a case-by-case basis and are within the discretion of USCIS. Is there a minimum age requirement for DACA applicants? Individuals who have never been in removal proceedings or whose proceedings were terminated before they apply for DACA must be at least 15 years old at the time of filing their applications. Individuals who are under 15 but otherwise meet the eligibility criteria for DACA can apply once they turn 15. Individuals in removal proceedings or subject to a final removal or voluntary departure order can apply for DACA even if they are under 15. Eligible individuals who are in immigration custody may not apply to USCIS for consideration, but instead are advised to identify themselves to their ICE detention officer or the Office of the ICE Public Advocate, via phone at (9 am to 5 pm, Monday-Friday) or via at EROPublicAdvocate@ice.dhs.gov. In emergent circumstances, the individual should consider contacting the Law Enforcement Support Center hotline, at (24 hours/day, 7 days/week). What should I do if my client appears eligible for DACA but has voluntary departure? ICE has confirmed in stakeholder meetings that its attorneys are to join or submit motions to reopen and then agree to administratively close cases of individuals who appear eligible for DACA, have been granted voluntary departure, and are currently within the voluntary departure period. The filing of a motion to reopen automatically terminates the voluntary departure order. 8 C.F.R (e)(1). Attorneys who have clients in this situation should immediately contact the ICE Public Advocate hotline at (9 am to 5 pm, Monday-Friday). If an individual overstays a period of voluntary departure without having his or her case reopened, the grant of voluntary departure will automatically convert to a final order of removal and subject him or her to severe consequences. 7 DHS has not issued guidance on whether a 6 See discussion infra pp. 8-9 ( What documentation can be used to establish that an individual has fulfilled the educational requirements? and Which applicants may be eligible for DACA under the currently in school requirement and what additional information will they need to provide to request a renewal? ). 7 A person who overstays the voluntary departure period may be subject to a fine of up to $5,000 and is barred for ten years from being granted cancellation of removal, adjustment of status, change of status, registry, and voluntary departure. INA 240B(d). For more information about 3 AILA-DC 2012 FALL CONF. 452

145 grant of deferred action would be construed as a justifiable basis for not abiding by the terms of a voluntary departure grant or whether the voluntary departure period will be tolled during the period of the request for deferred action. For these reasons, attorneys should consider advising their clients to seek to withdraw a request for voluntary departure prior to the designated departure date if ICE has not joined or submitted a motion to reopen. What documentation can be used to establish an applicant s identity? According to the FAQs and Form I-821D instructions, as evidence of identity, applicants may provide passports or other national identity documents that include a photograph or fingerprint, birth certificates or school or military identification documents that include a photograph, U.S.- government immigration or other documents that include both an applicant s name and photograph, and/or other relevant documents. What documentation can be used to establish immigration status on June 15, 2012? The FAQ and Form I-821D instructions also provide a list of documents that applicants may submit to demonstrate that they were not in lawful immigration status on June 15, Acceptable documents include an Arrival/Departure Record, which indicates that an applicant s authorized stay in the U.S. has expired, final orders of exclusion, deportation, or removal issued before June 15, 2012, charging documents placing an applicant in removal proceedings, and/or other relevant documents. Applicants who entered the United States without inspection and have never been in removal proceedings need not submit evidence of their lack of immigration status. The agency guidance does not address applicants who were inspected and admitted, but nonetheless were not issued any documentation at entry (e.g., a procedurally valid entry under Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)). If they choose to apply, these applicants should consider what evidence may be produced to establish the date and manner of entry. It is important that they consistently claim an entry with inspection rather than erroneously concede entry without inspection. What documentation can be used to establish physical presence and continuous residence in the United States? Applicants for deferred action must document three aspects of their physical presence and residence in the United States, namely, that they: Entered the United States before they reached age 16, Have continuously resided in the country since June 15, 2007 (i.e., for the five year period prior to June 15, 2012), and Were physically present in the United States on June 15, the consequences of overstaying voluntary departure and how a grant of voluntary departure can be terminated, see the Legal Action Center s Practice Advisory, Voluntary Departure: Automatic Termination and the Harsh Consequences of Failing to Depart (July 6, 2009). 4 AILA-DC 2012 FALL CONF. 453

146 The USCIS guidance does not require uninterrupted physical presence for five years only continuous residence. Brief, casual, and innocent absences from the United States will not interrupt continuous residence. 8 An absence will be considered brief, casual, and innocent if it occurred prior to August 15, 2012, and it: Was short and reasonably calculated to accomplish its purpose, Was not because of an order of exclusion, deportation, or removal, Was not because of an order of voluntary departure or an administrative grant of voluntary departure prior to the initiation of exclusion, deportation, or removal proceedings, and The purpose of the absence and the applicant s actions while outside the United States were not contrary to the law. USCIS encourages applicants to submit evidence that any absences from the United States prior to August 15, 2012 were brief, casual, and innocent. This evidence may include, but not limited to: Passport entries, Transportation tickets, Hotel receipts, Evidence of the purpose of the applicant s travel, and An advance parole document, and/or Any other relevant information. The FAQs and Form I-821D instructions provide examples of the types of documents that applicants may submit to demonstrate physical presence and residence. What documentation can be used to establish that an applicant came to the United States before his or her 16th birthday? Documents that an applicant may use to establish the date he or she entered the United States include, but are not limited to: Passports with admission stamps, Arrival/Departure records (Form I-94, I-95, or I-95W), Any INS or DHS document stating date of entry to the U.S., including Form I-862 or an NTA, Records from U.S. schools applicants have attended which include the name of the school and dates of attendance, including transcripts or report cards, Travel records, including transportation tickets, 8 This provision is similar to, but not entirely limited by what is referred to as the Fleuti doctrine, under which a trip abroad does not break the continuity of residence if it was innocent, casual, and brief. See Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963). 5 AILA-DC 2012 FALL CONF. 454

147 Hospital or medical records that include the name of the medical facility or provider and the dates of treatment, Official records from a religious institution establishing an applicant was present at a religious ceremony on a particular date, and/or Other relevant documents. 9 USCIS will accept circumstantial evidence that applicants meet this guideline. What documentation can be used to establish that an applicant was physically present in the United States on June 15, 2012 and has continuously resided in the United States since June 15, 2007? Documents that an applicant may use to establish his or her physical presence in the United States on June 15, 2012 and continuous residence for the five previous years include, but are not limited to: Rent receipts, utility bills, or other receipts or letters from companies that include the dates on which an applicant received services in the United States, Records from U.S. schools applicants have attended that include the name of the school and dates of attendance, including transcripts or report cards, Employment records that include relevant dates as well as the name of the applicant and the employer or other interested party, including W-2 forms, certifications of filing federal or state income tax returns, pay stubs, signed letters from employers that include the employer s contact information and the applicant s address at the time of employment, exact periods of employment and layoffs, and duties for the employer; or, for self-employed applicants, letters from banks and firms with whom the applicant has done business, 10 Military records, including Certificates of Release or Discharge from Active Duty (Form DD-214) or National Guard Report of Separation and Record of Service (NGB Form 22), Tax receipts or insurance policies, Money order receipts for money sent into or out of the United States, Dated bank transactions, Deeds, mortgages, rental agreement contracts, or other contracts to which the applicant was a party, Automobile license receipts, titles, or registrations, 9 Unlike previous versions of the USCIS FAQ, current instructions no longer list financial, employment, or military documents as examples of acceptable evidence of an applicant s arrival in the United States prior to his or her 16th birthday. However, the list of acceptable forms of evidence provided by USCIS is not exhaustive, and given the potential verifiability of such evidence, it is not clear if this omission was deliberate or an oversight. 10 See discussion infra pg. 11 ( What are the potential immigration or criminal consequences of submitting certain documents or information as evidence with Form I-821D? ). 6 AILA-DC 2012 FALL CONF. 455

148 Official records from a religious institution establishing an applicant was present at a religious ceremony, Hospital or medical records that include the name of the medical facility or provider and the dates of treatment, Passport entries, Birth certificates for children born in the United States U.S. Social Security card, Postmarked letters and correspondence between the applicant and another person or organization establishing the applicant s U.S. address and the date of correspondence, and/or Other relevant documents. USCIS will accept circumstantial evidence that applicants were present in the United States on June 15, In addition, although applicants must provide some direct evidence that they meet the five years continuous residence requirement, they may provide circumstantial evidence to fill in gaps left by their direct evidence. Other applications which require proof of physical presence and/or residence 11 may provide insight into documenting eligibility. Attorneys may want to review the lists of documents in those programs for examples that may be suitable under the DACA initiative. See, e.g., 8 C.F.R (a)(2); (e), (f); (i), (j); and Acceptable documents also have included immigration court records, applications for immigration benefits, correspondence with immigration agencies, driver s licenses, marriage certificates, personal checks bearing a dated bank cancellation stamp, and credit card statements, among other documents. In cases where primary evidence was unavailable or would benefit from corroboration, individuals have been able to rely on testimony or affidavits attesting to physical presence, and letters from employers or attestations from churches, unions or other organizations to show continuous residence. As discussed further below, however, USCIS has stated that affidavits, on their own, generally will not be sufficient to establish eligibility for DACA. Attorneys also may find it useful to review any prior applications that their clients have filed to ensure that all the information included in a request for deferred action is consistent and/or to rediscover evidence of eligibility. Such applications may be obtained through a Freedom of Information Act request, if necessary. Some of these applications may have been supported by additional evidence of residence or entry, such as letters, affidavits or declarations from third parties. 11 Examples include: the Nicaraguan Adjustment and Central American Relief Act (NACARA), the Haitian Refugee Immigration Fairness Act (HRIFA), and Temporary Protected Status (TPS). Attorneys may also wish to review guidance found in the instructions to other applications for immigration benefits that require a showing of continuous residence or physical presence, such as EOIR-40 (Suspension of Deportation), EOIR-42A (Cancellation for Lawful Permanent Residents), EOIR-42B (Cancellation for Non-Lawful Permanent Residents), I-687 (Application for Temporary Residence under 245A), and I-881 (Special Rule Cancellation). 7 AILA-DC 2012 FALL CONF. 456

149 What documentation can be used to establish that an individual has fulfilled the educational requirements? The FAQs and Form I-821D instructions also provide a non-exclusive list of documents that can be used to prove compliance with the educational requirements, but note that circumstantial evidence will not be accepted for this purpose. 12 Individuals may demonstrate that they are enrolled in school on the date they apply for DACA, have graduated from high school, or have obtained a GED certificate by presenting: A diploma from a public or private U.S. high school or secondary school, A GED certificate or other recognized equivalent of a high school diploma under state law, including certificate of completion, certificate of attendance, or alternate award from a public or private U.S. high school or secondary school, Other documentation that the applicant has passed a GED or comparable state-authorized exam, School or educational program records, including report cards transcripts, progress reports, acceptance letters, school registration cards, and/or letters from the school or program, that include the name of the U.S. school or educational program an applicant is currently attending, the applicant s current educational or grade level, and the applicant s dates of attendance, and/or Other relevant records. Which applicants may be eligible for DACA under the currently in school requirement? According to the USCIS FAQ, applicants who are enrolled in the following types of programs may be considered currently in school for the purposes of DACA: Public or private elementary school, junior high or high school, Education, literacy, vocational, or career training programs, including but not limited to those funded wholly or partially by federal or state grants, 13 that seek to place applicants in postsecondary education, job training, or employment, if applicants are working towards such post-program placement, 12 See discussion infra pp ( Will USCIS accept affidavits to fulfill the eligibility criteria for DACA? and Will USCIS consider circumstantial evidence to establish eligibility for DACA? ). 13 According to the FAQs, enrollment in programs not partially or wholly funded by federal or state grants may meet the educational requirements of DACA, where such programs are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations. Applicants will have the burden of proving such programs demonstrated effectiveness; USCIS will consider factors including the programs duration, effectiveness, and overall quality. 8 AILA-DC 2012 FALL CONF. 457

150 English as a Second Language (ESL) program, only if applicants are participating in the program as a prerequisite to enrollment in postsecondary education, job training, or employment and applicants are working towards such post-program placement, 14 or Educational programs that assist students in obtaining a high school diploma or its equivalent under state law, or in passing a GED or other state-authorized exam, if the program is funded in whole or in part by federal or state grants or is of demonstrated effectiveness. What additional information will applicants need to request a renewal of DACA? Those applicants seeking to fulfill the currently in school educational requirement may need to provide additional information to renew their deferred action status two years after their initial application. Although details will be forthcoming, according to the FAQ, applicants enrolled in schools or programs would need to demonstrate the following to renew deferral after two years: Applicants enrolled in high school or secondary school must show either that they have graduated from the school in which they were enrolled at the time of their original application or made substantial, measurable progress towards graduation, Applicants enrolled in elementary or middle school must demonstrate they have graduated from the school in which they were enrolled at the time of their original application and made substantial, measurable progress towards graduation from high school, or have made substantial, measurable progress towards graduation from the school in which they were enrolled at the time of their original application, Applicants enrolled in educational programs assisting students in obtaining a high school diploma or GED must show that they have received a high school diploma or its equivalent, passed the GED exam or equivalent state-authorized exam, and Applicants enrolled in educational, literacy, vocational, or career training programs must demonstrate that that they are enrolled in postsecondary education, have obtained employment for which they were trained, or have made substantial, measurable progress toward completing the program. What documentation can be used to establish that an individual has fulfilled the military service requirements? USCIS states that circumstantial evidence will not be accepted to demonstrate that an applicant meets the military service requirements. The FAQs and Form I-821D instructions provide a nonexclusive list of documents that can be used to prove that applicants have been honorably discharged from the U.S. Coast Guard or U.S. Armed Forces. These include, but are not limited to Form DD-214, Certificate of Release or Discharge from Active Duty, NGB Form 22, National Guard Report of Separation and Record of Service, military personnel records, and military health records. 14 According to the FAQ, applicants seeking to fulfill the currently in school educational requirement with an ESL program must submit documentary, not circumstantial, evidence that their enrollment is connected to... placement in postsecondary education, job training or employment and of the program s demonstrated effectiveness. 9 AILA-DC 2012 FALL CONF. 458

151 Initial consideration of the military service provisions suggests that they will benefit a very small number of people, as noncitizens who entered the United States without inspection or who are not in a lawful immigration status generally may not enlist in the U.S. Armed Forces or Coast Guard. Under the military service provisions, 10 U.S.C. 504(b)(1), only U.S. citizens and nationals, lawful permanent residents, certain persons from Palau, Micronesia, and the Republic of the Marshall Islands, and certain other persons whose enlistment has been determined by a Service Secretary to be vital to the national interest may enlist. Among the limited number of individuals who are honorably discharged veterans under age 31, and otherwise eligible for deferred action, most also would be eligible for naturalization under INA 329, and therefore not in need of deferred action. Importantly, the June 15, 2012 memorandum did not alter the enlistment rules for individuals who receive deferred action. To date, no Service Secretary has exercised his or her statutory authority to enlist undocumented noncitizens or individuals who have been granted deferred action. See 10 U.S.C. 504(b)(2) (providing that the Secretary may authorize the enlistment of individuals not typically permitted to enlist). Attorneys should ensure that their clients are aware that the new policy does not expand the categories of noncitizens eligible for enlistment, and that their clients will not be eligible to enlist, even if they are successful in seeking deferred action. Will USCIS accept affidavits to fulfill the eligibility criteria for DACA? Affidavits cannot be used to prove the educational or military service requirements, physical presence on June 15, 2012, arrival in the U.S. prior to age 16, the under-31 age requirement, or criminal history. Failure to submit required primary evidence to establish these eligibility criteria will result in the issuance of a request for evidence (RFE). Affidavits may be used to fill a gap in other documentation demonstrating that an applicant meets the five-year continuous residence requirement and/or that any departures during the five years were brief, casual, and innocent. To fulfill these criteria, applicants must submit two or more affidavits from other individuals who have direct personal knowledge of relevant events and circumstances. Will USCIS consider circumstantial evidence to establish eligibility for DACA? In the absence of other documentation, circumstantial evidence may be used to prove physical presence on June 15, 2012 and/or arrival in the U.S. prior to age 16, to fill gaps in direct evidence of the required five-year continuous residence period, and/or to show that any departures during the period of continuous residence were brief, casual, and innocent. This suggests that DHS will likely apply a presumption of presence for individuals who can show presence on days near June 15, 2012, but not necessarily on that day. This is similar to the approach employed for adjustment applications under INA 245(i), in which an applicant must demonstrate presence on December 21, In those cases, the agency typically considers evidence of presence both before and after the qualifying date to be sufficient to meet the applicant s burden. 10 AILA-DC 2012 FALL CONF. 459

152 Circumstantial evidence may not be used to prove an individual s age on June 15, 2012, or to document the educational or military service requirements. What are the potential immigration or criminal consequences of submitting certain documents or information as evidence with Form I-821D? Confidentiality provisions outlined in the FAQs indicate that information provided to USCIS in the DACA process is protected from disclosure to ICE or CBP for the purpose of immigration enforcement unless the requestor meets the criteria for the issuance of a Notice to Appear. Information may be shared, however, with other law enforcement agencies, including ICE and CBP, for purposes other than removal or where the applicant meets the criteria for issuance of a Notice to Appear. These other purposes include the identification or prevention of fraudulent claims, national security or the investigation or prosecution of a criminal offense. Attorneys should carefully examine all documents before submitting them to USCIS in support of a DACA application to assess whether they might contain information that could adversely affect the applicant. These documents may include records related to employment, financial, and tax matters. How can I determine whether my client has been convicted of any disqualifying crimes? Attorneys should question their clients in detail about their criminal histories and take steps to obtain copies of all police reports and records of disposition of any criminal charges, including any juvenile adjudications, no matter how minor or how long ago they occurred. A relatively simple way to obtain an individual s adult arrest record is through an FBI criminal background check, which requires the submission of an application form, fingerprints, and an $18 fee. 15 In addition, many states have web-based systems that enable individuals and their attorneys to access criminal records. 16 Some states require that the individual provide fingerprints in person in order to obtain records. Because individuals with pending warrants could be arrested if they go to a law enforcement office to provide fingerprints, attorneys should explore alternative ways of obtaining criminal histories, such as private fingerprinting services or web-based records requests. State laws govern access to juvenile records. Most states consider those records to be public, but restrict access after the person attains the age of majority. Attorneys should seek records relating to juvenile delinquency, including diversion or referrals to restorative justice programs, for all clients interested in applying for DACA. 15 More information about FBI criminal background checks is available at 16 Information about state-based criminal history systems can be found at: 11 AILA-DC 2012 FALL CONF. 460

153 Because USCIS will conduct independent background checks following collection of biometrics, applicants are not required to submit evidence of good moral character. However, if your client has a criminal record or other adverse factors affecting his case, such evidence may be helpful. What crimes render an applicant ineligible for deferred action? Individuals are not eligible for deferred action if they have been convicted of a felony, a significant misdemeanor, 17 or three or more non-significant misdemeanors (not including minor traffic offenses) unless DHS determines that there are exceptional circumstances. DHS has not provided any guidance as to what could constitute an exceptional circumstance. The FAQs specifically exclude immigration-related offenses classified as felonies and misdemeanors under state laws (such as Arizona s SB 1070). Presumably, criminal violations of federal immigration law will be considered. The federal criminal classification scheme governs whether an offense is considered a felony or misdemeanor for purposes of DACA. A felony is an offense punishable by a potential sentence of more than one year. A misdemeanor is an offense punishable by more than five days, but less than a year. The label a state attaches to a particular offense is not relevant. Thus, some offenses that a state labels as a misdemeanor, but which include a potential sentence of more than one year, will be a felony. A violation which carries a sentence of five days or less, such as a municipal violation, may not be counted as a misdemeanor, but may nonetheless be taken into consideration under the totality of the circumstances. Attorneys should also be cautious of federal tickets, which under the Assimilated Crimes Act, could be counted as a misdemeanor. A significant misdemeanor includes any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm; driving under the influence; and drug distribution or trafficking. A significant misdemeanor may also include any other misdemeanor for which an applicant was sentenced to more than 90 days imprisonment, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer. The policy specifically notes that a conviction for driving under the influence of drugs or alcohol is a significant misdemeanor, regardless of the sentence imposed. The FAQs separately define a non-significant misdemeanor. The term includes any misdemeanor punishable by imprisonment of more than five days and less than a year that is not identified as a per se significant misdemeanor (see above), for which a person receives a sentence of 90 days or less, again, not including suspended sentences, pretrial detention or time held pursuant to an immigration detainer. Individuals with three or more non-significant misdemeanors not occurring on the same date and not arising out of the same act, omission or scheme of misconduct are ineligible for deferred action. Minor traffic offenses, including driving without a license, will not count towards the 17 This term does not appear in the Immigration and Nationality Act or elsewhere in the U.S. Code. 12 AILA-DC 2012 FALL CONF. 461

154 three or more non-significant misdemeanor bar. However, DHS has stated that a person s entire history of offenses can be considered, along with other facts, to determine whether deferred action is warranted under the totality of the circumstances. Further, Form I-821D asks whether an applicant has ever been arrested for, charged with, or convicted of a crime in any country other than the United States. Unlike the question on the I- 821D regarding convictions in the United States, the question on foreign crimes neither mentions the words felony or misdemeanor nor the exception for minor traffic violations. Although the Board of Immigration Appeals has case law regarding how to classify a foreign crime, DHS does not indicate how it intends to treat these offenses for DACA purposes. 18 A question remains whether DHS will use the maximum punishment under the foreign law to determine whether the offense is a felony or a misdemeanor for DACA purposes. An applicant for DACA who does not meet the eligibility requirements risks being placed in removal proceedings or being detained. In addition, for cases that involve a criminal offense, fraud, or a threat to national security or public safety, confidentiality protections, which are discussed below, will likely not apply unless DHS determines there are exceptional circumstances. USCIS will apply its existing Notice to Appear guidance governing referral of cases to ICE and issuance of notices to appear, which is also discussed below. What additional documents must applicants who have been arrested submit? Form I-821D requires an applicant who answers yes to Part III, question 1, regarding arrests in the United States to furnish copies of all arrest records, charging documents, dispositions (outcomes), sentencing records, etc. An applicant with a foreign conviction must furnish the same level of documentation. How will DHS treat juvenile delinquency adjudications? DHS uses the term juvenile conviction to refer to a juvenile delinquency adjudication. DHS states that a juvenile delinquency adjudication will not automatically disqualify an applicant from DACA relief. A minor with a delinquency adjudication will get a case-by-case review to see if the particular circumstances of his or her case warrant a positive exercise of prosecutorial discretion. Attorneys should explore the circumstances and facts surrounding any juvenile delinquency adjudication to anticipate how DHS might characterize the underlying conduct that gave rise to the delinquency adjudication, as well as seek out evidence of mitigation or rehabilitation, as appropriate. For example, a noncitizen who receives a delinquency adjudication because of an offense which otherwise would have been considered a significant misdemeanor for an adult, may be found ineligible. A noncitizen convicted as an adult offender has an adult conviction, and does not receive case-by-case treatment based on age. 18 See, e.g., Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) (requiring offense to be for conduct deemed criminal in the United States and evaluating crime in light of United States standards for purposes of determining whether offense was criminal or delinquent). 13 AILA-DC 2012 FALL CONF. 462

155 Will expunged convictions be considered under the new policy? The same policy relating to juvenile convictions applies to expunged convictions. Applicants with expunged convictions will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. This is a departure from immigration law precedent, which treats expunged convictions as convictions for immigration purposes. What other conduct-based activities are bars to deferred action? Even absent a criminal conviction, individuals are ineligible for deferred action if their background checks or other information reveal that they pose a threat to public safety or national security. Relevant factors include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States. 19 Under a totality of circumstances test, DHS may consider allegations of participation in criminal activities based on the facts surrounding dismissed charges, as well as participation in drug/alcohol programs, or anger management classes. Attorneys should review the circumstances of any dismissed charges to see if the applicant could nonetheless be found ineligible for deferred action or even at risk of enforcement action. Police reports or complaints suggesting drug use or drug trafficking, assaults against family members or partners, and sex crimes should be explored in detail to see if the conduct could be construed as participation in criminal activities. Suspected gang membership also presents a bar to DACA. Unfortunately, many people will not know if they are suspected of being gang members until USCIS completes a background check. USCIS may rely on reports from local police departments to determine gang membership, and has not indicated whether individuals will be advised if this is the reason for a failed application, much less whether an applicant will be notified of the issue and provided an opportunity to rebut allegations of gang membership. Attorneys should carefully review criminal history information for any gang references. In addition, the attorney can submit a FOIA request to ICE or a public records act request to the local police department to see if a client is believed to be a current or former gang member. Attorneys are advised to review distinctions between gang members and nonmembers. For example, a gang membership determination could be incorrect if a USCIS officer misreads tattoos and incorrectly concludes that the person in question belongs to a specific gang. Alternatively, an individual may have been a gang member in his teenage years, but subsequently left the gang. An applicant with mitigating factors and other significant equities might still be favorably considered. However, as discussed above, such an individual risks potential removal if he or she is considered an enforcement priority. Practitioners are advised to follow trends in this area closely. This same analysis would apply when reviewing whether someone could be construed to be a national security threat. 19 Gang membership may prove to be an area of concern for potential applicants, given the reported difficulties former gang members face obtaining other immigration benefits or forms of prosecutorial discretion. 14 AILA-DC 2012 FALL CONF. 463

156 What constitutes an exceptional circumstance to overcome a bar to DACA? DHS has not provided any guidance as to what could constitute an exceptional circumstance, but practitioners should assume that DHS will apply this exception sparingly. A possible example of a case that might qualify would be a domestic violence conviction where the person convicted was not the primary perpetrator of violence in the relationship. 20 It is unclear whether evidence of rehabilitation or significant time since the activity at issue will overcome the bar. Because individuals who would face these bars are necessarily likely to be considered enforcement priorities, attorneys should proceed with caution, if at all, in affirmative filings, and should consider providing clients with clear written warnings of the risks associated with making a request. Are individuals who are currently in removal proceedings or subject to a final removal order or a voluntary departure order eligible for DACA? Yes. According to the FAQs, individuals who fall into these categories, meet the eligibility guidelines, and are not currently in immigration detention should submit their applications to USCIS not ICE as stated in the initial FAQs released on June 15, The request should include a copy of the removal order or the decision of the immigration court or the Board of Immigration Appeals, if available. Such individuals may be under 15 at the time of the request, but cannot have been 31 or older as of June 15, 2012, to be considered for DACA. If an individual does not meet the age requirements for DACA, he or she may ask ICE to consider a request for prosecutorial discretion under the June 17, 2011 Morton memo. If a client in immigration detention meets the eligibility criteria for DACA, you should notify his or her detention officer or contact the ICE Office of the Public Advocate at (9 a.m. to 5 p.m., Monday to Friday) or by at EROPublicAdvocate@ice.dhs.gov. Once ICE is made aware of the case, it is unclear whether the application will be adjudicated by ICE or USCIS, or what the process will be. If your client is in danger of imminent removal, you should immediately contact the Law Enforcement Support Center hotline at (24 hours/day, 7 days/week). Individuals who recently received a final order of removal and are still within the statutory time period for seeking reopening (within 90 days of the entry of a final order of removal under INA 240(c)(7)(C)), may want to consider filing a motion to reopen based on the new DACA guidance. Alternatively, an individual beyond the reopening period may seek DHS s consent to file a joint motion to reopen or even present a motion to the immigration court or Board of Immigration Appeals (BIA) for sua sponte consideration. Even though such individuals are eligible for DACA, it is to their advantage in most cases to reopen the case in order to obtain administrative closure or termination. This may put them in a better position in the event DACA is rescinded, a renewal application is denied, or the individual becomes eligible for another form of relief from removal. 20 INA 237(a)(7). 15 AILA-DC 2012 FALL CONF. 464

157 Can individuals apply for DACA if they were previously offered, but did not accept an offer of administrative closure, or if a request for prosecutorial discretion was declined? Yes. Any individuals who can demonstrate that they meet the guidelines are eligible for DACA, even if their cases were considered in the course of DHS s case-by-case review process and regardless of the results. Since Secretary Napolitano s June 15th announcement, ICE has granted deferred action to certain individuals who met the DACA guidelines whose cases were already identified for administrative closure. Will deferred action applicants accrue unlawful presence while their applications are pending? Applicants who are 18 years old or older will continue to accrue unlawful presence while their applications for DACA are pending. Individuals under 18 years old do not accrue unlawful presence. See INA 212(a)(9)(B)(iii)(I). Based on the FAQs, applicants who request deferred action while under age 18 will not accrue unlawful presence even if they turn 18 while their requests are pending. An individual granted deferred action will not accrue unlawful presence during the period of deferred action, but previous or subsequent periods of unlawful presence are not erased by a grant. Thus, individuals who have accrued at least 180 days or one year of unlawful presence before receiving deferred action may already be subject to the three and ten-year bars, respectively, and should avoid leaving the country under any circumstances. The FAQs state that a person granted deferred action is eligible to apply for advance parole, and may be able to depart and reenter the country as a parolee. Note, however, that under the recent BIA decision in Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012), an individual who otherwise would trigger the three- or ten-year bar simply because he or she departed under advance parole, is not considered to have departed the United States. Presumably, individuals who already have a path to residency, but who are not currently eligible to adjust, may find themselves adjustable after travel on advance parole. What will happen to individuals who meet the eligibility criteria but are stopped or arrested by ICE or CBP? On June 15, 2012, Secretary Napolitano instructed ICE and CBP to immediately exercise their discretion, on a case-by-case basis, to prevent individuals who meet the eligibility criteria from being apprehended, held under ICE detainers, placed into removal proceedings, or removed from the United States. On a June 18 national stakeholder call, CBP announced that individuals who encounter CBP will be briefly detained for screening purposes. Following an interview and a background check, CBP will release individuals who are found to be prima facie eligible for deferred action. CBP will instruct eligible individuals to apply to USCIS for deferred action. If you believe that ICE or CBP has pursued enforcement action against your client in violation of this policy, you should contact the Law Enforcement Support Center s hotline at (24 hours/day, 7 days/week) or the ICE Office of the Public Advocate at (9 am 16 AILA-DC 2012 FALL CONF. 465

158 to 5 pm, Monday-Friday) or by at EROPublicAdvocate@ice.dhs.gov. Also, please complete this survey to assist AILA and the Legal Action Center in monitoring implementation of the new policy. Can individuals in removal proceedings who are granted deferred action influence whether their cases should be terminated, administratively closed or pursued? Once an NTA has been filed with the immigration court, only the immigration judge can decide whether to terminate or administratively close proceedings. Joint motions for such relief are invariably granted. In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), however, the Board held that an immigration judge could grant a motion to administratively close proceedings filed by either party over the objection of the other party. Thus, a respondent can seek this relief even if ICE counsel does not agree. Conversely, because a party s opposition to administrative closure is a factor that an immigration judge must consider under Matter of Avetisyan, a respondent also can object to an ICE motion for administrative closure. Attorneys should bear in mind that there may be strategic advantages to termination or administrative closure, or even continuing on to the merits, depending on a particular respondent s situation. Attorneys should thoroughly weigh options before choosing a particular course of action. Notably, there is no legal authority requiring that a case be administratively closed or terminated before DHS grants deferred action. DHS has not addressed whether it will require respondents to join a motion to terminate or administratively close the removal case as a condition of a DHS grant of deferred action. Assuming an individual can decline an ICE offer to join a motion for termination or administrative closure without losing eligibility for DACA, it remains to be seen whether the offer then expires or can be accepted at a later time (e.g., after an adverse determination on the merits by an immigration judge). During ICE s review of pending cases for prosecutorial discretion, individuals in removal proceedings have frequently faced a take it or leave it dilemma, where administrative closure is not offered a second time if initially declined. However, if DHS determines that an individual meets the eligibility criteria for deferred action, this determination should not be affected if the individual opts to pursue other forms of relief first. Further, given that deferred action is available to those with final orders of removal, it is reasonable to expect that offers would be renewed at the end of removal proceedings if a more favorable outcome were not achieved. Will individuals who receive deferred action be eligible to work? Yes. Under 8 C.F.R. 274(a).12(c)(14), individuals who receive deferred action may apply for and obtain employment authorization for the period of deferred action if they can establish an economic necessity for employment. 21 An application for employment authorization should be 21 Economic necessity, which also governs requests for employment authorization by U visa holders, does not require a showing of economic hardship. 17 AILA-DC 2012 FALL CONF. 466

159 filed concurrently with an application for DACA. 22 An individual who applies for and receives a renewal of deferred action separately must request a renewal of his or her employment authorization. At this point, there is little guidance on what evidence is necessary to establish economic necessity, but it is important to distinguish between economic necessity and economic hardship. In practice, any individual demonstrating a need to lawfully be able to accept employment should be eligible for work authorization. What is the application process for DACA? On or after August 15, 2012, applicants other than those in detention should send a completed and signed Form I-851D (Consideration of Deferred Action for Childhood Arrivals) and supporting documentation, along with Form I-765 (Application for Employment Authorization), Form I-765WS (Form I-765 Worksheet), and the requisite fees totaling $465, 23 to the USCIS lockbox designated for their state of residence. 24 Applicants must submit an Application for Employment Authorization and associated fee in order to apply for DACA. Once USCIS determines that an application is complete, the applicant will be sent a receipt notice, followed by an appointment notice requiring the applicant to attend a biometrics appointment at an Application Support Center. Applicants who wish to receive notices via or text message may submit a Form G-1145 (E-Notification of Application/Petition Acceptance). All applicants must submit to biometric and biographic background checks prior to receiving deferred action. USCIS will notify applicants in writing if more information or evidence is needed, or if an in-person appearance will be required. Applicants will be able to track the status of their applications online and will receive a final written decision from USCIS. Are fee waivers available under DACA? There are no fee waivers associated with DACA, but in accordance with 8 C.F.R (d) limited fee exemptions are available. To request a fee exemption, attorneys should send USCIS a letter and supporting documentation establishing that their clients: Are under 18, homeless, in foster care or lacking parental or familial support for other reasons, and have an income under 150% of the U.S. poverty level, Cannot care for themselves because they suffer from a serious, chronic disability and have an income under 150% of the U.S. poverty level, or At the time of the request, have accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for themselves or an immediate family member, and their income is less than 150% of the poverty level. Requests for such exemptions must be filed and granted before an individual files a DACA application without the requisite fee. 22 The required forms are available on the USCIS website at and 23 This includes $380 for employment authorization and $85 for biometrics. 24 The mailing addresses and instructions are available at 18 AILA-DC 2012 FALL CONF. 467

160 Acceptable evidence will include: Affidavits from community-based or religious organizations to establish homelessness or lack of parental or familial support, Copies of tax returns, bank statements, pay stubs, or other reliable evidence of income; Affidavits from the applicant or responsible third parties attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income, Copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses. USCIS will issue requests for evidence (RFEs) if more information is needed. Will individuals who apply for DACA be permitted to travel outside the United States? Individuals who travel outside the United States after August 15, 2012 either before they apply for DACA or while their applications are pending will be deemed not to have fulfilled the continuous residence requirement. Any departure after that date, but before a grant of deferred action (regardless of being brief, innocent and casual) will disqualify an applicant for DACA. Thus, all clients should be warned of the consequences of travel prior to a grant of deferred action. Individuals who have been granted deferred action may be permitted to travel abroad, but only pursuant to a grant of advance parole from USCIS. After receiving deferred action, individuals seeking to travel outside the United States must apply for advance parole by filing Form I-131, Application for Travel Document and paying the $360 filing fee. USCIS generally will grant advance parole to a DACA recipient only if the purpose of the intended travel is humanitarian, educational or employment-related. The advance parole must have been granted prior to any departure. Those individuals who receive deferred action but are subject to a final order of removal may request advanced parole, but should not travel outside of the country unless they have reopened their removal cases and the case has been terminated, or the case has been administratively closed and is before the immigration court. 25 Even if travel abroad is permitted via advance parole, it may not be in your client s best interest. Although unlawful presence will not accrue during any deferred action period, individuals who have reached the age of eighteen may be subject to the inadmissibility bars if they have previously been unlawfully present in the United States for more than 180 days. The Board s recent decision in Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012), however, hints at a possible advantage to travel on advance parole. Arrabally held that a departure under advance parole after more than 180 days of unlawful presence does not trigger the three- and tenyear bars. 25 It is important to note that if the applicant s case is before the BIA and the case is administratively closed, departure will automatically withdraw the appeal. 8 C.F.R AILA-DC 2012 FALL CONF. 468

161 If a person has already triggered inadmissibility under 212(a)(9)(B) or (C), travel under advance parole will not cure the previously incurred bar. Under Arrabally, an argument could be made that individuals who already have a path to residency, but who are not currently eligible to adjust (such as an EWI immediate relative of a U.S. citizen, entering as a parolee), may find they are not only eligible to apply to adjust after travel on advance parole (because they now are in parole rather than EWI status), but also need not apply for a waiver of the three- or ten-year bar. Given the short time Arrabally has been in play and the lack of guidance on how USCIS may treat such departures, attorneys should monitor developments in this area before advising clients on the impact of travel. Under no circumstances should an individual granted deferred action travel abroad without a grant of advance parole. Such an individual will be subject to any applicable grounds of inadmissibility upon returning to the United States. Will family members of individuals who receive deferred action under this policy also be granted deferred action? Only individuals who meet all the eligibility criteria will be granted deferred action under the new memorandum. Family members, including dependents who do not independently qualify, will not receive deferred action pursuant to this process. Although such family members may still be eligible for prosecutorial discretion pursuant to prior guidance issued by USCIS or ICE or the ongoing review of pending removal cases announced in August 2011, there is no affirmative application process for such relief. Thus, if family members are not currently in removal proceedings, not likely to be placed into proceedings, and not under an imminent threat of deportation, they will not be able to apply for prosecutorial discretion under the prior guidance. There is no indication that family members of individuals who receive deferred action will have a heightened risk of immigration enforcement. To the contrary, confidentiality provisions outlined in the FAQs indicate that these individuals are not at any increased risk, and the fact that a family member has been granted deferred action may be a positive discretionary factor in evaluating enforcement priorities. Can a grant of deferred action be extended beyond two years? Yes. Unless a grant of deferred action is terminated prematurely, a recipient may request a renewal of both deferred action and employment authorization. Like the original applications, these requests will be considered on a case-by-case basis. What will happen to individuals whose requests for deferred action are denied? Attorneys are advised to warn their clients in writing that even for prima facie eligible cases, deferred action is not guaranteed. The warning should further explain that applicants will be revealing and, in most cases, documenting their removability to a government agency that can 20 AILA-DC 2012 FALL CONF. 469

162 initiate removal proceedings. 26 If USCIS denies deferred action to an applicant subject to a final order of removal, that individual may still request prosecutorial discretion pursuant to the prior guidance issued by ICE on June 17, 2011, or the ongoing review of pending removal cases announced in August Such requests may be submitted to the local ICE Office of Chief Counsel or Field Office Director, as appropriate. In cases where USCIS denies an individual s request for deferred action and the individual is not subject to a final order of removal, USCIS will apply its existing Notice to Appear guidance governing referral of cases to ICE and issuance of notices to appear. This guidance prioritizes the prosecution of cases involving criminal convictions, fraud, and threats to national security or public safety. 27 In addition, DHS said in the FAQs that individuals who knowingly make a misrepresentation or knowingly fail to disclose facts in the deferred action application process will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States. Other cases will be referred to ICE for removal proceedings only where DHS determines that there are exceptional circumstances, a term which is not defined. However, USCIS has indicated that, even where an applicant for deferred action is referred to ICE for immigration purposes, information regarding that individual s family members or guardians will not be given to ICE for the purpose of seeking the removal of the family member or guardian. USCIS may share information regarding applicants, as well as their family members and guardians, with national security and law enforcement agencies, including ICE and CBP, for purposes unrelated to immigration enforcement, including for assistance in consideration of DACA applications, to identify or prevent fraudulent claims, for national security purposes, or to investigate or prosecute a criminal offense. Can individuals appeal a denial of deferred action under the new memorandum? No. However, applicants or their attorneys can contact the National Customer Service Center at to request review if: (i) USCIS denied the DACA application based on abandonment in a case where the applicant responded to a Request for Evidence within the prescribed time; or (ii) USCIS mailed the Request for Evidence to the wrong address despite the applicant s prior submission of a Form AR-11 (Change of Address) or online change of address. If you believe that your client s DACA application was improperly denied, please be sure to 26 Confidentiality provisions outlined in the most recent FAQs indicate that such information, regarding applicants or their family members or guardians, is protected from disclosure for the purpose of immigration enforcement unless the requestor meets the criteria for the issuance of a Notice to Appear. Notably, the policy is subject to change. 27 In accordance with its existing guidance, USCIS also will continue to issue Notices to Appear as required by statute or regulation, including in cases involving denials of Form I-751 (Petition to Remove the Conditions of Residence), denials of Form I-829 (Petition by Entrepreneur to Remove Conditions), terminations of refugee status, denials of NACARA 202 and HRIFA adjustments, asylum referrals, termination of asylum or withholding of removal, positive credible fear findings, and certain NACARA 203 cases. 21 AILA-DC 2012 FALL CONF. 470

163 complete AILA s survey in order to help AILA and the LAC monitor implementation and advocate for improved policies and procedures. There is no prejudice to filing a new application. 22 AILA-DC 2012 FALL CONF. 471

164 SCREENING DACA APPLICANTS FOR ADDITIONAL IMMIGRATION REMEDIES Paula Fitzgerald Virginia Managing Attorney AILA-DC 2012 FALL CONF. 472

165 Potential Immigration Remedies for DACA applicants Special Immigrant Juvenile Status (SIJS) U Visa T Visa Violence Against Women Act (VAWA) Self Petition Derivation/Acquisition of Citizenship Asylum Family Petition Prosecutorial Discretion AILA-DC 2012 FALL CONF. 473

166 SPECIAL IMMIGRANT JUVENILE STATUS AILA-DC 2012 FALL CONF. 474

167 SIJS - Elements The child must be unmarried and under 21 The Court must have jurisdiction under state law to make determinations about the care & custody of children The child must be dependent on the Juvenile Court or placed under the custody of an individual or entity appointed by a State or Juvenile Court Reunification w/ 1 or both parents is not viable b/c of abuse, abandonment, or neglect It must not be in the child s best interests to return to his/her country AILA-DC 2012 FALL CONF. 475

168 SIJS - Benefits Can apply for adjustment of status after I-360 is approved by USCIS Certain grounds of inadmissibility are waived (i.e. public charge, unlawful entry, fraud, misrepresentation, unlawful presence) ICE will join motions to reopen after I-360 approval if certain criteria are met. AILA-DC 2012 FALL CONF. 476

169 U NONIMMIGRANT STATUS ( U VISA ) AILA-DC 2012 FALL CONF. 477

170 U Visa - Elements Applicant was a victim of a qualifying crime Indirect victim: Includes certain family members of direct victims who are incompetent, incapacitated (including under 18) or deceased Applicant suffered substantial physical or mental abuse Applicant possesses information Applicant has been helpful, is being helpful, or is likely to be helpful The criminal activity violated the laws of the US The applicant is admissible AILA-DC 2012 FALL CONF. 478

171 U Visa - Qualifying Crimes Abduction Female Genital Mutilation Obstruction of Justice Slave Trade Abusive Sexual Contact Hostage Peonage Torture Blackmail Incest Perjury Trafficking Domestic Violence Involuntary Servitude Prostitution Unlawful Criminal Restraint Extortion Kidnapping Rape Witness Tampering False Imprisonment Manslaughter Sexual Assault Related Crime(s) Felonious Assault Murder Sexual Exploitation Other Attempt to Commit any of the named crimes Conspiracy to Commit any of the named crimes Solicitation to Commit any of the named crimes AILA-DC 2012 FALL CONF. 479

172 U Visa - Benefits Nonimmigrant status valid for 4 years U-visa based work permit is valid for 4 years and does not need to be renewed Can apply for adjustment of status 3 years after initial grant Can petition for qualifying family members in the US or abroad includes spouses, unmarried children under 21, parents (if the victim was under 21), siblings under 18 (if the victim was under 21) Allows for waivers of inadmissibility Can apply for adjustment even if have prior order of deportation AILA-DC 2012 FALL CONF. 480

173 T VISA AILA-DC 2012 FALL CONF. 481

174 T Visa - Elements For persons: Who have been subject to severe trafficking Defined as: the use of force, fraud, coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage, or slavery Who are in the U.S. Who complied with reasonable request for assistance by law enforcement or who are unable to cooperate due to physical or psychological trauma; or who is under 18; and Who would suffer extreme hardship involving unusual and severe harm upon removal AILA-DC 2012 FALL CONF. 482

175 T Visa - Benefits Eligible for employment authorization Eligible for residency after three years or once investigation is complete Eligible to bring derivatives to the US or confer legal status on derivatives May be eligible for continued presence (and work permit) before approval Eligible for certain public benefits AILA-DC 2012 FALL CONF. 483

176 VAWA SELF PETITION AILA-DC 2012 FALL CONF. 484

177 VAWA Self Petition - Elements Subjected to Battery or Extreme Cruelty By a U.S. Citizen or Lawful Permanent Resident Spouse or Parent Includes step-children and adopted children Under 21 years of age Or over 21 and under 25 if shows connection between not filing on time and the abuse Good Faith Marriage File within two years of divorce Good Moral Character AILA-DC 2012 FALL CONF. 485

178 VAWA Self Petition - Benefits Upon approval of the self petition, a VAWA self petitioner is eligible for employment authorization. If self petitioner is/was married to a USC or the child of a USC they are eligible to apply for their residency or may apply for their residency concurrently with their self petition. If self petitioner is/was married to a LPR or are the child of a LPR they may apply for their residency when a visa becomes available. Can naturalize after three years in LPR status Can include derivatives in application AILA-DC 2012 FALL CONF. 486

179 Sample Screening Questions SIJS (If under 21) Note: If the young person is 18 or older and has no open family court case, he or she is probably not eligible, but still encourage the young person to obtain a thorough consult at some point. Do you live with both of your parents? Why not? Have either of your parents ever hit you? Ever mistreated you? Did either of them abandon you? Are either or both of them deceased? T/U Visa Have you ever been forced to work against your will? Have you been the victim of a crime or been hurt by someone in the US? Have you ever talked with the police about something that happened to you or someone close to you? AILA-DC 2012 FALL CONF. 487

180 Sample Screening Questions Asylum Do you fear returning to your home country? VAWA/Family-based/Derivation or Aquisition of Citizenship Do any of your grandparents, parents, step-parents, spouses, siblings, or children have any legal status in the US? AILA-DC 2012 FALL CONF. 488

181 Questions? Paula Fitzgerald Ayuda (703) AILA-DC 2012 FALL CONF. 489

182 10/2/12 USCIS - Frequently Asked Questions Frequently Asked Questions FAQs updated September 14, 2012 Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization. You may request consideration of deferred action for childhood arrivals if you: 1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching your 16th birthday; 3. Have continuously resided in the United States since June 15, 2007, up to the present time; 4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; 5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012; 6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Individuals can call USCIS at with questions or to request more information on the deferred action for childhood arrivals process or visit View the Consideration of Deferred Action for Childhood Arrivals Process Video /portal/site/uscis/template.print/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a?v g AILA-DC 2012 FALL CONF /23