Friday, July 06, 2018

Lawyers Who Participate in the USCIS De-Naturalization Task Force (and the Head of USCIS) May Be Engaged in Professional Misconduct

by Diane Klein

In mid-June 2018, the Director of the United States Citizenship and Immigration Services (USCIS), announced the formation of a new task force focused on de-naturalizing U.S. citizens.  This new office will be in Los Angeles, and is scheduled to open in 2019.

Like "voter fraud" and ICE "liberating" towns from MS-13, there is no substantial naturalization fraud.  There is no crisis requiring a "task force" or a new U.S. Citizenship and Immigration Services (USCIS) office.  This is another pseudo-problem, put forward to advance the Trump Administration's racist, populist, and nationalist themes, regardless of the evidence (or the lack of it), and to justify mobilizing government resources against vulnerable people.  This time around, those people are citizens.  Lawyers who participate in this project - to the extent it targets individuals on the basis of race, religion, or national origin, as it seems very likely to do - should know that they do so at the risk of violating their professional codes of conduct.

Like so many Trump Administration policies, this latest initiative is intended to strike fear into the hearts of the vulnerable, mostly black and brown people already likely to be disparately treated by law enforcement, and to breed unwarranted suspicion among native-born citizens (of any race) towards ta group of our fellow citizens who have made a commitment to this country far more knowing, deliberate, and often more costly, than most of the rest of us ever will.  Hundreds of thousands of them have served in our military.

On that basis alone, it is an evil, repugnant, wasteful endeavor, in which no person of conscience should willingly take part.  By its nature, though, it will require the services of "several dozen" new government lawyers - each of whom, I would suggest, may find themselves in violation of the applicable rules of professional conduct.

From the scope of the operation, one might imagine a problem of significant magnitude.  The U.S. Attorney's Office for the Central District of California (including Los Angeles) is already the second-largest in the country, after D.C., but its 264 attorneys are apparently insufficient to the task.  Lee Francis Cissna, the director of USCIS who made his bones implausibly arguing that foreign workers with H1-B visas were displacing U.S. workers, currently claims that his "several dozen" new government lawyers (hired at a cost to the taxpayers of no less than $70K a year apiece) (plus immigration officers), plus LA office rent, is being undertaken for the sake of "potentially a few thousand cases."  And even that number may be exaggerated, given that since 1990, only 305 such cases - what might charitably be called "a handful" - have been filed.

In the past ten years, approximately 6.6 million immigrants have become naturalized U.S. citizens.  If Cissna is correct, and there are about 3300 cases of naturalization fraud, and if all of those arose from naturalizations in the last decade, that would be a rate of  .05%, or 1 in 2000.  Keep in mind that Cissna has not suggested that even those who have been fraudulently naturalized have engaged in any other criminal activity, or pose any significant risk to anyone.  And as Masha Gessen pointedly notes in The New Yorker, such "fraud" may consist of nothing more than lying on a naturalization form in answer to a question about whether one has ever committed a crime (regardless of whether the person was been arrested, prosecuted or convicted), asked of immigrants from the sorts of places where reading foreign newspapers, or being gay, is defined as a crime.

While actual naturalization fraud should not be completely ignored, it surely cannot be justified as a legitimate immigration or law enforcement priority.  Instead, it is part and parcel of ending DACA; the Muslim ban; "zero tolerance" for border crossings; family separation; and interference with asylum-seekers and refugees.  A DOJ led by someone who has long been hostile to immigration - all immigration - is now turning its sights on a group the overwhelming majority of whom - some 99.95%, by their own count - have done everything "right." (And as for that H1-B visa argument?  Well, there are about half a million H1-B visa holders in the U.S. today, and about 2/3 of the 85,000 granted per year go to computer coders.  Which Trump voters are they displacing, do you think?)

By the time this office is up and running, California's new Rule of Professional Conduct 8.4.1 will be in effect.  It provides that,
(a) In representing a client...a lawyer shall not: (1) unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic....
(b) In relation to a law firm's operations, a lawyer shall not: (1) on the basis of any protected characteristic, (i) unlawfully discriminate or knowingly permit unlawful discrimination;
(c) For purposes of this rule: (1) "protected characteristic" means race, religious creed, color, national origin, ancestry,...or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.
(California Rule 1-100(B)(1)(d) defines "law firm" to include "a publicly funded entity which employs more than one lawyer to perform legal services," so the new office would clearly be covered.)

To the extent that lawyers working in this office are likely to be admitted or appear in states other than California, the Model Rules or very similarly-worded rules are in effect in those jurisdictions, too.  In August 2016, the ABA House of Delegates voted to add a new paragraph (g) to Model Rule of Professional Conduct 8.4, the catch-all "misconduct" rule. It reads:
It is professional misconduct for a lawyer to: (g) engage in conduct the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law....
 Comment [3] to the new paragraph explains,
A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, violates paragraph (g) when such actions are prejudicial to the administration of justice.
Comment [5] emphasizes that "Lawyers holding public office assume legal responsibilities going beyond those of other citizens."

Should DOJ lawyers get involved, the D.C. Rules would apply. The District has not yet adopted MR 8.4(g); however, it has a modified version of Model Rule 8.4(d).  D.C.'s rule prohibits conduct "that seriously interferes with the administration of justice."  Comment [3] to D.C. Rule 8.4(d) is very similar to ABA Comment [3] to MR 8.4(g).  It reads,
A lawyer violates paragraph (d) by offensive, abusive, or harassing conduct that seriously interferes with the administration of justice.  Such conduct may include words or actions that manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.
Another important jurisdiction for immigration enforcement is the current "ground zero": Texas, which is home to the Central Processing Station in McAllen and the Marcelino Serna Port of Entry in Tornillo, Texas. Government lawyers there, if they are admitted in Texas, are subject to Texas Disciplinary Rules of Professional Conduct, including Rule 5.08(a), "Prohibited Discriminatory Activities," which states,
A lawyer shall not willfully, in connection with an adjudicatory proceeding...manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity. 
Regardless of the precise wording of the different jurisdictions' rules, their general import is clear: lawyers cannot, in the ethical discharge of their professional duties, engage in conduct that is discriminatory on the basis of race, religion, national origin, or similar categories.

A denaturalization task force is chilling enough, coming from this Administration, which has so openly espoused a White and xenophobic ideal of "Americanness" that excludes racial and religious minorities, whatever their origins.  The deprivation of what Gessen calls "the assumption of permanence" is arguably an equal protection violation, in treating the naturalized as less than the natural-born in a way that serves no legitimate government interest.

Moreover, to the extent that that any lawyer within Cissna's new office is instructed, directed, pressured, or rewarded (officially or otherwise) for focusing on Muslims, or persons from identified countries (for example, countries covered by the travel ban, "shithole" countries, or countries whose nationals currently comprise a substantial fraction of those undergoing family separation at the border, like Guatemala and Honduras), such conduct is potentially discriminatory - even if the office's purported mission appears neutral and anodyne.  Even if individual cases are well-founded (as some might be), if the overall operation of the office "manifests" bias or prejudice, the lawyers can be sanctioned.

It is hard to imagine that USCIS needs to open a whole new office and create a task force to handle just a few thousand lingering cases of paperwork fraud.  Who will be next - perhaps the native-born children of those the government claims "should not have been naturalized in the first place"?  (And imagine how many of our immigrant ancestors that might include, from a Trump/Sessions point of view.)  The location of the office in California - the state with more undocumented persons than any other, many "mixed status" families, and where so many of those H1-B visa holders live and work (for example) - seems non-accidental.  Los Angeles was also home to one of the very largest June 30 marches against family separation.  Cissna would be well-advised to put his new office near a Chick-Fil-A, because I can't imagine his legal henchmen (and women) will find a very welcome reception at the taco trucks downtown - or from the California State Bar.

5 comments:

Shag from Brookline said...

Might we expect the Federalist Society to provide a list for such new government lawyers?

Diane Klein said...

The question is whether (and who) will volunteer - these are not Senate confirmed positions, just standard government lawyer hiring, I think.

David Ricardo said...

I believe Scott Pruitt has the ethical qualifications for a position in group, and I believe he is available.

Thanks for an interesting post on a topic most of us would have never thought about.

Diane Klein said...

Thanks for that! All of us have a variety of obligations as citizens, including moral and political resistance to evil policies. But Trump's style of authoritarianism in the administrative state requires the cooperation of lots of professionals - including lawyers of course - and if being members of a self-regulating profession is to mean anything, it needs to be exercised on matters like this. Not every "bad" thing a lawyer does is a violation of PR rules (you can see my earlier blog post on Aaron Schlossberg, the d-bag lawyer who yelled at the sandwich shop employees). But some things are.

Shag from Brookline said...

But some "bad" thing a lawyer does, especially a "celebrity" lawyer, that may not be a violation of PR rules, still needs to be disclosed, such as claiming a personal McCarthyism attack for defending a long time Florida acquaintance. No man is an island, especially on an island. Now for some orange juice.