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June 20, 2017; Legal Intelligencer

Legal services for immigrants in the U.S. are complicated and require precise timing, the completion of complicated forms (perhaps not in the immigrant’s native language), and often multiple court appearances. Having legal counsel and assistance for these processes enhances greatly the chances that an immigrant will win his or her case, especially in cases of asylum, where immigrants have a one-year period following their arrival to file papers. In a June 23rd phone interview, Simon Sandoval-Moshenberg, director of the Immigrant Advocacy Program for the Legal Aid Justice Center in Falls Church, Virginia, stated, “The problem is that immigration has penalties, like criminal law, but no guarantee of counsel. There is no mandate for public defenders for immigration court.”

The Northwest Immigration Rights Project (NWIRP) in Seattle was sent a cease-and-desist letter from the Executive Office of Immigration Review, a federal agency within the Department of Justice. The order referenced a nine-year-old rule of professional conduct promulgated by EOIR, codified at 8 C.F.R. Section 1003.102(t) and never-before enforced by the Department of Justice. It put the agency in the untenable position of not being able to carry out their mission, which is to aid undocumented immigrants through legal assistance, advocacy, and education.

The cease-and-desist letter referenced two motions that had been filed in immigration court; both motions included the agreed-upon notations indicating that NWIRP had assisted. The cease-and-desist letter stated that this limited assistance, without a corresponding filing of a notice of appearance, violated the rule. Disciplinary counsel also expressed the source of its concern: “By holding attorneys accountable for their conduct, this rule makes it possible for EOIR to impose disciplinary ­sanctions on attorneys who do not provide adequate representation for their clients.” So, after nine years of permitting this limited representation to indigent clients who would otherwise have no legal advice at all, EOIR was now seeking to prevent this limited representation on the grounds of ­ensuring that these unrepresented ­individuals have “adequate representation.”

As Sandoval-Moshenberg indicated, NWIRP was offering indigent clients some assistance, like help with filling out forms, but not actually appearing in court with these clients. “The regulation cited in the cease-and-desist letter was developed to keep bad lawyers from defrauding immigrants,” he said. But in this case, it would keep a good agency from doing its work and would limit severely how many undocumented immigrants they could help.

NPQ wrote about this last month when the DOJ sent a cease-and-desist letter “threatening disciplinary action if NWIRP did not close down its asylum advisory program,” to which NWIRP responded with a lawsuit against the order. A federal judge granted a temporary restraining order on the case, barring the DOJ from using the same tactic on other nonprofits in the meantime.

The rule comes down to what constitutes “adequate representation.” In immigration courts, where legal representation is not mandated, what nonprofit agencies provide may not be the best practice, but it’s all that’s available without a mandate for public defenders.

The NWIRP is a resource-driven agency. Because of this, the “unbundling” of legal services is the best way to serve the most clients. Unbundled services cover only a discrete part of a client’s legal issues and are more easily understood as “limited scope representation.” Limited scope representation ­occurs when a lawyer agrees to provide services piecemeal but not take on all the elements of a representation. Rather than one lawyer working with a client from start to finish and always appearing in court with that client, they can provide specific help with forms and process, and limit the costs of having lawyers at every court hearing.

In the context of the NWIRP problem, representation was limited by the nonprofit’s resources. Unable to provide full representation in every removal case, NWIRP instead provides a variety of methods of assisting indigent immigrants, including help drafting motions and removal applications and matching clients to pro bono attorneys. In response to the cease and desist letter, NWIRP filed a complaint in the United States District Court for the Western District of Washington: NWIRP v. Sessions, 17-cv-00716 seeking a declaratory judgment that the rule could not be enforced against it. As NWIRP stated in its complaint for declaratory and injunctive relief, a strict application of the rule requiring an entry of appearance every time NWIRP participated in a case in immigration court would curtail its ability to even screen cases for referral or provide educational services to undocumented immigrants.

In its response, NWIRP alleged the rule violated its First Amendment rights, as it inhibited free speech. It also alleged it was a violation of the Tenth Amendment, as it invaded the state’s right to regulate the practice of law. The court granted NWIRP’s motion for a temporary restraining order, finding it had met its burden of proof that it would be irreparably harmed and that it was likely to succeed on the merits of its case.

In addition, the court stated that because the DOJ ­affirmed during the hearing that it was going to continue to issue cease and desist letters to similarly situated nonprofit organizations, the court ordered that the ­enforcement of 8 C.F.R. Section 1003.102(t) would be temporarily restrained nationally. At oral argument, the court expressed its belief that the nine-year delay in ­enforcing the rule undermined the Department of Justice’s explanation that its current efforts were motivated by its desire to protect ­litigants. Instead, this delay supports an inference that the rule is being enforced to prevent NWIRP from preventing litigants from getting any available assistance and making it easier to deport forever those who came here fleeing persecution. The hearing on the permanent injunction will be held on July 24th. Until then, NWIRP is free to ­continue its limited representation of ­indigent immigrants in immigration court.

The practice of unbundling legal services remains a key part of how nonprofits can service immigrant populations and address the issues of deportation and asylum. The motivations of the Department of Justice in bringing this case after a nine-year dormancy remain in question.—Carole Levine