I had a hard time putting together this week’s Chair notes. Not because there was no immigration news of note, but because week after week, it just feels like we are piling on more bad stuff that we need to deal with. Each week I look for the silver lining. It seems to me that regardless of what is going on in the news, It is one client, one family, one small business at a time that we can focus on and bring great results. I was down in Los Angeles to meet the Ethiopian Airlines flight from Ethiopia on Wednesday because my mother was coming back. Waiting for that same flight was one of my old clients. I had represented him in detention over a decade ago and then throughout until he became a citizen. I had filed the petition for his wife and the passport applications of his two children who are citizens. The process had taken a long time, but right before me I got to witness the real-life effect of my work and it felt really good. Despite what is going on out there, we are still getting approvals, seeing people become citizens, businesses staffed with the brightest and the best. We are still getting the job done. I remember this time last year with the disastrous Travel Ban. It was the start of what continued to be a very difficult year. But I also look at the fact that we continue to succeed and push back.
Nationally, the unveiling of the White House’s Immigration Framework perhaps made the conversation surrounding the Dreamers that much more difficult. Our website has a feed of the American Immigration Council’s analysis in the News section, but you can also find it here http://immigrationimpact.com/2018/01/26/decoding-white-house-immigration-framework/ Essentially, for a path to citizenship in 10-12 years where DACA recipients cannot go below the poverty line commit any crimes and will have no ability to petition for their parents. The framework also cuts visa preference categories and eliminates all but immediate relatives and family second preference (F2A) , provides expedited removal for visa overstays, heightened asylum credible fear standards and completely eliminates Diversity Visa Lottery program. I almost feel that if someone told the President that the H1B program is also lottery based he may move to eliminate that too, as it is it very difficult. There has been a rumor that ICE is about to start tracking license plates. This has circulated around enough circles that I am going to share it, with the understanding that it did not come from an AILA source. https://www.theverge.com/2018/1/26/16932350/ice-immigration-customs-license-plate-recognition-contract-vigilant-solutions. This is disturbing and I hope that your are brushing up on your con law skills. Along the same lines, lawyers who are traveling abroad now have protection on a search of their devices. https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf . My first thought, perhaps like everyone else, is why should we be subject to search considering the attorney-client privilege is sacrosanct? The ABA is working hard on it and thus far for those traveling is the following: • Determine which of your electronic devices may contain attorney work product or privileged information, and consider either leaving them at home or minimizing the number of those devices you travel with.
- Consider buying a disposable cellphone, inexpensive electronic device or fresh storage drives which only have the information absolutely necessary to you during your travel.
- Be familiar with the type and location of confidential information on any device you do travel with. Remember that an ordinary “delete” almost never fully removes data.
- Place all your devices in “airplane” mode as you approach a border inspection area, and fully power down or lock your electronic devices when appropriate.
- Have some form of identification ready showing that you are a legal professional, such as a work ID, your bar admission card or your business card.
- Be familiar with the requirements in your jurisdiction’s rules of professional conduct, and how they dictate you behave when approached with a request or demand for inspection; the expectations for how you will safeguard your clients’ information; and the rules for notifying any clients whose information may have been revealed during a border search.
Locally, we got an email survey request from Centro Legal de la Raza about a potential class action they are trying to put together for those whose removal orders have been reinstated or who are subject to an administrative removal order or who have been denied bond after 180-day detention. If you have clients in the Ninth Circuit who fit this bill, please complete this survey. The purpose of this survey is to identify potential plaintiffs for such lawsuits. Thank you to Isabel Soto Wagner for our new EOIR Directory that I will send out separately. I was sad to note that Judge Griswold, one of the most pragmatic judges that I encountered, is retiring on February 28, 2018. In view of the DOJ’s new directives, I am sad that the reliably pragmatic, thoughtful judges are retiring and being replaced by a lot of former TA’s.
Finally, this week’s Merle’s Corner is not so much a summary of cases but for all of us that get queasy about filing Lozada actions, words of wisdom and encouragement, a good PSA on why we should. This is good stuff! FYI, SCOTUS has requested briefs by 2/2/2018 on the District Court DACA Injunction. The golden window within which to file extensions may be closed by then.
Public Service Announcement on Ineffective Assistance of Counsel in Light of Matter of W-Y-C-
This week there have not been any decisions published by either the Board of Immigration Appeals or the Ninth Circuit. However, in light of last week’s decision by the BIA in Matter of W-Y-C- & H-O-B-k, 27 I.&N. Dec. 189 (BIA 2018), I am making this public service announcement. Do not hesitate to file a Motion to Reopen for Ineffective Assistance of Counsel when you get an asylum case where the original attorney did not craft the right particular social group. You need to Lozada it, send the complaint to the State Bar, and file a Motion to Reopen with the BIA or the Court with the proper particular social group. In the interest of full disclosure, in the late 1980’s early 1990’s I was a law clerk for the D.C. Office of Bar Counsel, and later I was a staff attorney for the Attorney Registration and Disciplinary Commission for the Supreme Court of Illinois. I think my background makes me more open to filing a bar complaint against another attorney. Because, it’s likely that nothing bad will happen to the attorney. In my experience, unless the attorney stole or commingled client funds the chances of the attorney being disciplined are next to nil. (There are exceptions, but the attorney misconduct has to be egregious for a complaint to be filed).
I checked the most recent State Bar annual report (April 2017) and here are the interesting numbers that I found. In 2016, the State Bar of California had 191,464 licensed attorneys and another 58, 874 inactive attorneys. In 2016, 15,240 cases were closed by the State Bar and 672 formal charges were filed. In 2016, 191 attorneys were disbarred, and 202 attorneys were suspended. See, http://www.calbar.ca.gov/Portals/0/documents/reports/2016_AnnualDisciplineReport.pdf. If you file a complaint for an attorney who did not create the proper social group, the State Bar will likely not engage in any disciplinary action and you will be able to get the case reopened to obtain relief for your client.
For those of you, who are not familiar with Lozada, it is a BIA decision from 1988 that gives you the steps for filing a motion to reopen based on ineffective assistance of counsel. Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988). The decision states that if you are filing a Motion to Reopen for ineffective assistance of counsel (and I am grossly oversimplifying here), you need to: 1) Have the client write a declaration stating that s/he hired the attorney, and what the scope of the representation included (if you have a retainer agreement add that too). 2) The new attorney must send a letter to the former attorney with a copy of the declaration, explain what the first attorney did wrong, give them time to respond, and tell the attorney that you will be filing a complaint with the State Bar. 3) You must wait for the attorney to respond (I usually give the attorney 10 days) and then you file the declaration, your letter, and a letter explaining what the attorney did wrong to the State Bar. 4) You then file everything you submitted to the State Bar, in your Motion to Reopen. There is some discussion about whether it is necessary to file the complaint with the State Bar. My feeling is, if the attorney crafted the wrong particular social group, the State Bar is not going to pursue any disciplinary action, and this way, the IJ or the BIA cannot deny the case because you did not file a complaint with the State Bar. It takes that issue off the table. My person experience is that good attorneys will help you with a Lozada complaint against them and bad attorneys need it to be filed anyway. No one wants to be Lozada’ed, but it helps the client and the attorney will not be disciplined. Look at those numbers!!!! So, in light of W-Y-C- & H-O-B-, be prepared to file a Motion to Reopen for Ineffective Assistance of Counsel if you see that someone crafted the wrong particular social group.