Ethical Issues in Immigration Litigation in Federal District Court
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Transcript of Ethical Issues in Immigration Litigation in Federal District Court
Naomi Jiyoung Bang
Clinical Adjunct Professor, STCLAsylum and Human Trafficking clinic
Senior Attorney, FosterQuan, LLP
More than half of federal court cases of docket.
In Texas (southern states), these cases are five times the national average.
STUDENTS: Ethical issues regarding clients and immigration policy frequently arise when fighting for liberties and rights.
Writs of Mandamus APA violations/contesting laws and regs Fifth Amendment Due Process Fourth Amendment Bivens Habeas Corpus – Eighth Amendment DJ actions for US citizenship Section 1421(c) de novo reviews of naturalization denials Freedom of Information Act litigation 1447(b) after exam naturalization delays Padilla Section 2255 motions (ineffective…) Rule 35 Motions to reopen criminal cases Undocumented victims in Federal Criminal/Civil Litigation
as witnesses/victims
The government is:
discriminating against me! violating my constitutional
rights. keeping me locked up too
long. wrongfully deporting me! refusing to recognize I am a
US citizen. allowing agents to hurt me. sitting on my case.
4th Amendment◦ Bivens
Federal Criminal and Trafficking Cases◦ T, U, Asylum cases
USC issues (1503)◦ Citizenship claims
Fifth Amendment◦ Unreasonable delays◦ Litigation impact
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
Federal cause of action under the Fourth Amendment for damages recoverable upon proof of injuries resulting from agents' violation of that Amendment.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
Detention facilities◦Agents, foster homes
Abuse, neglect, discrimination◦Assault is good claim because no other remedy
◦ICE raids, destruction of property Frivolous, malicious denials Discriminatory interviews Outrageous conduct
Egregious emotional casesAuthenticity of evidenceHow to prove the acts? Credibility of witnessesCredibility of Victim Victory means $$$$
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement..
… (3) offer evidence that the lawyer knows to be false.
(b) Representations to the Court. By presenting to the court a pleading, … an attorney … certifies that …
(2) the claims … are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.
U visa (victim of crime)
T visa (TVPRA – trafficking visa)
S visa (“snitch”)
CP (Continued Presence)
Legal immigration status
Employment authorization◦ Temporary/ Permanent
Legal Reprieve – from pending deportation.
Benefits for derivatives
Client MotivesClient’s backgroundsCultural differences re honestySurvival tactics – Cambodia
Lawyer’s personal desires to assistYoung practitionersConsequences are high -- life or death
ABA Rule 8.04(a)(3) – A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
Good intentions are not a defense.
Fifth Amendment
Writ of Mandamus
Violation of Administrative Procedures Act (APA)
No person shall ... be deprived of life, liberty, or property, without due process of law; …
Government has a clear legal duty to do X.
Plaintiff has a clear legal right to have X done.
No other adequate remedy.
◦ **Government can decide “HOW” but not “IF”
YES!
Naturalization Cases (N-400)◦120 day condition (Section 1447-b)
NO! or MAYBE NOT?
Pre-interview natz◦“Green card” Adjustment of Status Cases
◦Or MAYBE NOT HERE….
Waiting in the wings
Fei BIAN v. Clinton, 605 F.3d 249 (5th Cir. 2010) vacated, 09-10568, 2010 WL 3633770 (5th Cir. Sept. 16, 2010)
DO YOU PROCEED?
Rule 3.3 (a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
FRCP 11 (c) Sanctions. (1) If … the court determines that Rule
11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, … .
Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
7th or 9th, but NOT 5th? As Justice Jackson’s words suggest, “forum
shopping” is not an activity that should be associated with questionable ethics or
doubtful legality. It is part of a lawyer’s job to bring suit in
the forum that is best for the client’s interests. (Food for thought?)
You were born here and they don’t believe you!
US Passport Cases
Mid-wife cases in valley
(a) If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency … declaring him to be a national of the United States, …
Client motives
◦US citizenship◦Privileges and rights of USC◦Since July 1, 2011, travel restricted.
ABA Rule 4.01 – falsity v. puffery
ABA Rule 8.04(a)(3) – dishonesty, fraud
ABA Rule 3.3 – Candor towards Tribunal
Document, document, document
Corroboration – affidavits?
Witness – bias, self-interested◦ Parents? (OIL e.g.)
Expert witness – trustworthy, qualified, credible, availability?
Rule 1.4: Communication (a) A lawyer shall: (1) promptly inform the client of any decision or
circumstance… (2) reasonably consult with the client… (3) keep the client reasonably informed about
the status of the matter; (4) promptly comply with reasonable requests
for information …
*
◦Return ALL client phone calls/emails◦Document all client contact – email is
good.◦Signed waivers for any doubtful areas ◦Research and verify expert witnesses ◦Get a mentor◦Have go-to people (second opinion)◦Meet in pairs during client intake/affidavit
(corroboration – witness/cops)◦Keep current on the law◦Trust your gut.