Ethical Representation Joel - PowerPoint Presentation

Slide1

Ethical Representation

Joel

R.

GonzalezSlide2

Sources of Ethics

State

Rules on

Professional ResponsibilityImmigration

StatutesINA § 240(b)(6) - Treatment of frivolous behavior in removal proceedingsINA § 274C(a)(5) - Penalties for document fraudImmigration Regulations

8

CFR § 103(a)(3

) – Representation by licensed attorney or authorized representative8 CFR § 292.3, 1292.3 – Professional conduct for practitioners (USCIS)8 CFR § 1003.102 - Professional conduct for practitioners (EOIR)Slide3

Ethical Issues

Ineffective Assistance of Counsel

Dual RepresentationSlide4

Ineffective Assistance

Pro-Bono and “Low-Bono

”

RepresentationWithdrawal and Nonpayment for Services RenderedClients Who Fail to Appear

Attorneys Who Fail to AppearFrivolous Claims and “Gaming the System” Voluntary Departure“La Reforma Migratoria”Slide5

Form EOIR-44

Lists examples of behavior that may provide grounds for investigation:

Charging

grossly excessive fees;E

ngaging in conduct lacking competence or diligence;Knowingly or recklessly making a false statement of material fact or otherwise misleading and/or misinforming any person, including knowingly or recklessly offering evidence known to be false;M

aking

false or misleading communications about his/her qualifications or

services;Providing ineffective assistance of counsel as found by the Board of Immigration Appeals or an Immigration Judge; Repeatedly failing to appear for scheduled hearings in a timely manner without good cause;

F

ailing

to maintain communications with a

client;

F

ailing

to abide by a client’s decision in a

case.Slide6

Dual representation

Third-Party Payments

Family-Based Applications

Divorcing SpousesLabor CertificationsH-1B CasesSlide7

Hypothetical #1

You

jointly represent a U.S. citizen and her foreign spouse in pursuing

marriage-based permanent residence. A close friend of one of your clients, the husband, has told you that he

is seeking to obtain a marriage-based green card through fraud. In particular, the friend tells you that the husband is still seeing his ex-wife from the same country and that his ex-wife is also pursuing permanent residence through a recent marriage to a U.S. citizen. The friend tells you that the husband confided in him that they each intend to divorce their current spouses and remarry

after they get their green cards. When you confront the husband, for whom you

have already

filed papers, he insists that his current marriage is genuine and tells you he will continue pursuing permanent residence based on his current marriage.Slide8

Hypothetical #1

Analysis:

Is this a matter before a tribunal?

Is the information provided by the friend material?Are the statements from your client’s friend sufficient to establish actual knowledge that your client has submitted false evidence or is engaging in fraud?

Does the fact that you don’t have actual knowledge of the falsity excuse you from having to take any further steps to gain knowledge?What if you do obtain actual knowledge of the falsity or fraud?What are the reasonable remedial measures that you should take?Slide9

Hypothetical #2

Your

client had previously been denied asylum. He is now pursuing permanent

residence based

on his marriage to a U.S. citizen. In preparing for his adjustment interview, the client tells you that his asylum attorney had fabricated details of the claim. You explain that the client needs to disclose the misrepresentation and file for a waiver. When he and his wife come back to your office the next day, they insist that there was a misunderstanding earlier, that he made no misrepresentation when

applying

for asylum.Slide10

Hypothetical #2

Analysis:

Is this a matter before a tribunal?

Is there a possibility that your client’s prior false asylum application is material to his ability to obtain a green card through marriage?Is your client’s post-advice statement that there was a misunderstanding about the asylum application sufficient to establish actual knowledge that your client is prepared to commit perjury?

Does the fact that you don’t have actual knowledge of the falsity excuse you from having to take any further steps to gain knowledge?What if you do obtain actual knowledge of the falsity or fraud?What are the reasonable remedial measures that you should take?Slide11

Hypothetical #3

You

represent a small business owner in preparing and filing a labor certification for

his friend based on an offer of future employment as a project manager. The friend has

H-1B status through a different employer. You explain that there must be a bona fide, permanent job opening available to U.S. workers, and that the owner must have the intent to hire the friend and the friend must have the intent to work for the owner after being approved for permanent residence. The business owner pays your fee and completes the recruitment, and you submit the

labor certification application. After the labor certification application is approved,

before filing

the I-140 petition and I-485 application, the friend asks you how long he needs to work for the business owner, if he can leave after working for one day. The business owner and the friend admit after further discussion that the labor certification was filed as a favor. They intend to work together only as long as necessary; that the friend will take a leave of absence and

then return to his current employer.Slide12

Hypothetical #3

Analysis:

Is this a matter before a tribunal?

Do you have actual knowledge of the fraud triggering the duty of candor?What remedial measures that you should take?Slide13

Silence is Golden

Your clients (and you) have the right to remain silent. Use it or lose it.Slide14

Stop asking the wrong question

“Can they ask me… ?” is the wrong question. Here’s why:

Is it legal for me, Attorney Zoltan, to ask…

Your name

Your favorite colorEtc.Is it legal, for me “Officer” (heaven forfend!) Zoltan, to ask…

Your name

Your favorite color

Etc.Slide15

Texans

ain’t taciturn

So, who protects your right to remain silent?

You do.

Answering an officer’s questions with silence is really awkward, so turn the tables. Answer every question (but one*) with a question of your own: Are you detaining me, officer?

__________

* We’ll get to thatSlide16

Why ask, “Are you detaining me?”

You’re a law enforcement official who’s been asked, “Are you detaining me officer?” How would

you answer?Slide17

*

Who are you?:The question one always must answer

Failure to Identify

. A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information. Texas Penal Code § 38.02.

“Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances

.”

Hiibel

v. Nevada, 542 U.S. 177 (2004).Slide18

CBP: evasive maneuvers

Are you detaining me, officer?

Are you detaining me, officer?

Are you detaining me, officer?

Are you detaining me, officer? Are you detaining me, officer?

Are you

detaining

me, officer?Slide19

Conspicuous

silences

Fifth Amendment Lite

: Salinas’ “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's

question . . . It has long been settled that the privilege [against self-incrimination] generally is not self-executing and that a witness who desires its protection must

claim it

.”

Salinas v. Texas, 133 S.Ct. 2174 (2013).

In the Supremes’ brave new world, “Are you detaining me, officer?” prevents tell-tale silences

.Slide20

Are you detaining me?

:It’s not just for checkpoints anymore

Every citizen and lawful resident who does not

exercise her Fifth Amendment rights helps rat out the undocumented who

do.Resources:DHS Checkpoint Blog Entry 14: Obedience Training

(posted at

http://

www.youtube.com/watch?v=DDLlEh0x2XA) CHIRLA Know Your Rights Video (posted at

http://

www.youtube.com/watch?v=5_Z_Z5tSsUs

)

Silence is Golden

, an hour-long “self-defense” course: 10:00 a.m. the 1

st

Saturday of each month at the Law Office of Paul S. Zoltan, 8610 Greenville Avenue, Suite 100, Dallas 75342