Page 40 - The Indian EYE 051223

IMMIGRATION MAY 12, 2023 | The Indian Eye 40

Ethical Considerations When

the Removal Case is Dismissed

BY CYRUS MEHTA AND U.S. Immigration and Custom (June 10, 2022), holding that the olution of cases; to direct that strate, among other things,
KAITLYN BOX* Enforcement (ICE) Office of guidance laid out in the memo vi- the adjudication of certain cas- that “removal would result in
the Principal Legal Advisor olates the two mandatory deten- es be deferred; to regulate the exceptional and extremely un-
n recent times, immigration (OPLA) Kerry E. Doyle (“Doyle tion provisions at INA § 236(c) assignment of adjudicators to usual hardship to the alien’s
courts are dismissing the cas- Memo”), which empowered and INA § 241(a)(2), as well as cases; and otherwise to man- spouse, parent, or child, who
Ies of noncitizens with great ICE attorneys to exercise pros- the Administrative Procedure age the docket of matters to be is a citizen of the United States
zeal. Even government attor- ecutorial discretion in handling Act (APA). As such, OPLA at- decided by the Board, the im- or an alien lawfully admitted
neys are moving to dismiss these the cases of noncitizens who are torneys are no longer relying migration judges, the Chief Ad- for permanent residence.” See
cases and Immigration Judges not considered enforcement pri- on the Mayorkas memo, or the ministrative Hearing Officer, or INA § 240A(b)(1)(D). Hence,
(IJ) are going along. This bodes orities under the criteria laid out sections of the Doyle memo that the administrative law judges…” even if dismissal would deprive
well for the noncitizen who is no in the earlier Mayorkas memo. rely on the criteria provided in This provision thus empow- the client of work authoriza-
longer facing the specter of a re- The goal of the ICE prosecuting the Mayorkas memo. Howev- ers EOIR to “ensure the effi- tion, in the long term, the client
moval order. On the other hand, attorney under the Doyle memo er, recent OPLA guidance on cient disposition of all pending would not want to risk a remov-
the dismissal of the case often was to achieve justice rather prosecutorial discretion states cases”, “set priorities” for the al order. On the other hand, a
leaves the noncitizen in limbo. than removing the noncitizen. as follows: “OPLA attorneys, resolution of cases, “direct that client who may not have any al-
The noncitizen may have filed Indeed, under the Doyle memo, however, may—consistent with the adjudication of certain cases ternative relief on the horizon
a viable cancellation of remov- the ICE attorney’s role as the longstanding practice—exer- be deferred”, and “otherwise to may want to take the chance
al case and has been obtaining government’s representative in cise their inherent prosecutori- manage the docket of matters to and pursue cancellation of re-
interim work authorization for removal proceedings was to pro- al discretion on a case-by-case be decided”, which can include moval in the hope of winning
many years due to the case be- actively alert the immigration basis during the course of their removing cases from the active even though there is a risk
ing stuck in an IJ’s overcrowded judge to potentially dispositive review and handling of cases.” calendar. For the noncitizen that an IJ may deny the claim.
court docket. After the dismiss- legal issues and viable relief op- Although the Doyle memo who has a cancellation of remov- It is important to com-
al, the noncitizen can no longer tions they have identified. is no longer applicable, the gov- al case and has been renewing municate the risks and bene-
renew work authorization and On June 10, 2022, the U.S. ernment continues to dispense work authorization, taking the fits to the client who is facing
can lose their job. District Court for the South- with many cases in the way it case off the calendar is prefer- a dismissal of the proceeding.
These dismissals have ern District of Texas vacated recommends, relying now on able than outright dismissal as ABA Model Rule 1.4 requires
their genesis in an April 3, the Mayorkas memo in Texas v. traditional principles of prose- they can continue to renew work the attorney to inform the cli-
2022 memorandum from the United States, No. 6:21-cv-0016 cutorial discretion rather than a authorization. ent of any decision or circum-
guiding memorandum. As Dismissal of the proceeding stance with respect to which
an alternative to dismissing can raise ethical conundrums the client’s informed consent is
the case, EOIR has recent- for immigration practitioner required. Under ABA Model
ly begun removing some representing the noncitizen. As Rule 1.0(e) “‘Informed con-
cases from the active calen- already noted, if an individual sent’ denotes the agreement by
dar. The case thus remains in removal proceedings has an a person to a proposed course
technically open, but with- application for relief pending of conduct after the lawyer has
out any scheduled hearing before EOIR such as an appli- communicated adequate infor-
date. 8 CFR § 1003.0(b)(1) cation for cancellation of re- mation and explanation about
(ii) provides the authority moval and the case is outright the material risks of and rea-
for this practice, stating: dismissed, the noncitizen might sonably available alternatives
“(b) Powers of the lose work authorization or an- to the proposed course of con-
Director—(1) In general. other benefit associated with duct.” The attorney must also
The Director shall manage the pending application. This check the state analogue to
EOIR and its employees individual will also be deprived the ABA model ethical rules
and shall be responsible for of the ability to pursue the ap- where they may be admitted.
the direction and supervi- plication and win cancellation of Moreover, there are indepen-
sion of each EOIR compo- removal. Dismissal will put the dent grounds promulgated
nent in the execution of its noncitizen back to square one by the EOIR that can result
respective duties pursuant as an undocumented person. in sanctions for an immigra-
to the Act and the provi- It is possible that a noncitizen tion conduct such as failing
sions of this chapter. Un- who has been granted cancel- to maintain communication
less otherwise provided by lation of removal but is waiting with the client throughout the
m of the Attorney General, the in the queue for a number can duration of the client-prac-
Director shall report to the
also be subject to a unilateral titioner relationship, 8 CFR
CYRUS D. MEHTA & PARTNERS PLLC Deputy Attorney General motion to dismiss by an ICE 1003.102(r), and failing to
and the Attorney General. prosecutor. Thus, it is crucial abide by a client’s decisions
The Director shall have the for attorneys to promptly no-

concerning the objectives of
authority to: tify clients of an outright dis- representation and failing to

  . . . . missal and any associated con- consult with the client as to the
   
­ (ii) Direct the conduct sequences. means by which they are to be
€
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of all EOIR employees to Before accepting the dis- pursued. 8 CFR § 1003.102(p).
ensure the efficient dispo- missal, the client should con- Board of Immigration ap-
sition of all pending cases, sent to the dismissal. Winning peals case law also provides a
a request for cancellation of basis for attorneys to be able to
including the power, in his
2 6th Floor discretion, to set priorities removal is never guaranteed as challenge outright dismissals

    or time frames for the res- the respondent has to demon- that are deleterious to their cli-

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