Ethical Issues in Immigration Litigation in Federal District Court

1. Ethical Issues in Immigration Litigationin Federal District Court Naomi Jiyoung Bang Clinical Adjunct Professor, STCL Asylum and Human Trafficking clinic Senior Attorney, FosterQuan, LLP

2. Texas Immigration Cases • 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.

3. What type of immigration/constitutional issues can you litigate in district court? • 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

4. In other words …. • 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.

5. Let’s pick four … • 4th Amendment • Bivens • Federal Criminal and Trafficking Cases • T, U, Asylum cases • USC issues (1503) • Citizenship claims • Fifth Amendment • Unreasonable delays • Litigation impact

6. #1: The Fourth Amendment • 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

7. Bivens • 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)

8. BIVENS scenarios • 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

9. Ethical considerations • Egregious emotional cases • Authenticity of evidence • How to prove the acts? • Credibility of witnesses • Credibility of Victim • Victory means $$$$

10. ABA Rule 3.3 Candor towards Tribunal • (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.

11. Federal Rule of Civil Procedure 11 • (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.

12. #2: Federal Criminal Cases involving immigration status • U visa (victim of crime) • T visa (TVPRA – trafficking visa) • S visa (“snitch”) • CP (Continued Presence)

13. Client Benefits… • Legal immigration status • Employment authorization • Temporary/ Permanent • Legal Reprieve – from pending deportation. • Benefits for derivatives

14. Ethical Considerations Client Motives Client’s backgrounds Cultural differences re honesty Survival tactics – Cambodia Lawyer’s personal desires to assist Young practitioners Consequences are high -- life or death

15. Honesty • 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.

16. #3: Unreasonable delay cases • Fifth Amendment • Writ of Mandamus • Violation of Administrative Procedures Act (APA)

17. Fifth Amendment • No person shall ... be deprived of life, liberty, or property, without due process of law; …

18. WOM: Unreasonable Delay • 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”

19. Can you sue for unreasonable delay? • YES!  • Naturalization Cases (N-400) • 120 day condition (Section 1447-b)

20. ALL unreasonable delays? • NO!  or MAYBE NOT? •  Pre-interview natz • “Green card” Adjustment of Status Cases • Or MAYBE NOT HERE….

21. BIAN • 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?

22. Candor towards Tribunal • 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

23. What about your law firm? • 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.

24. Forum Shopping? • 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?)

25. #4: Declaratory Actions for USC • You were born here and they don’t believe you! • US Passport Cases • Mid-wife cases in valley

26. Statute right on point: 8 USC 1503 • (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, …

27. Client credibility concerns • Client motives • US citizenship • Privileges and rights of USC • Since July 1, 2011, travel restricted.

28. Ethical dilemma • ABA Rule 4.01 – falsity v. puffery • ABA Rule 8.04(a)(3) – dishonesty, fraud • ABA Rule 3.3 – Candor towards Tribunal

29. How to safeguard? • Document, document, document • Corroboration – affidavits? • Witness – bias, self-interested • Parents? (OIL e.g.) • Expert witness – trustworthy, qualified, credible, availability?

30. IMPORTANT TIP FOR ALL CASES* • Rule 1.4: Communication • (a) A lawyer shall: • (1) promptly inform the client of any decision or circumstance… • (2) reasonablyconsult with the client… • (3) keep the client reasonably informed about the status of the matter; • (4) promptly comply with reasonable requests for information … • *

31. It’s not worth your license! • 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.