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.