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IMMIGRATION OCTOBER 09, 2026 | The Indian Eye 42
When Government Threats
Collide with the Ethics of Asylum
Representation
CYRUS MEHTA as responsible for the asylum “well-founded fear” is not dependent judgment on ques- be false. These duties do not
backlog. That accusation de- surplusage, and it does not tions of statutory interpreta- run only in the government’s
HS General Coun- mands a clear response. impose a more-likely-than- tion and may not defer to an direction. A lawyer also has a
sel James Percival’s Immigration lawyers do not test. agency merely because the duty not to abandon a legally
DSeptember 15, 2026 not need an elementary les- In INS v. Cardoza-Fon- statutory language is ambig- supportable claim out of fear
letter to the American Immi- son in asylum law from an seca, 480 U.S. 421 (1987), uous. Lawyers may therefore that an enforcement agency
gration Lawyers Association administration that has sys- the Supreme Court made challenge in good faith re- may retaliate merely because
is troubling not because it re- tematically sought to close this point unmistakably clear. strictive BIA interpretations the issue is contested or the
minds lawyers that fraud and the courthouse door to asy- The asylum standard is more of “particular social group,” facts are difficult.
frivolous filings are prohibit- lum seekers. They need the generous than the clear-prob- even if Percival believes the That is why Percival’s
ed. No responsible immigra- government to administer the ability standard governing underlying claims do not fur- warning is especially perni-
tion lawyer disputes that. It is law faithfully. Congress made withholding of removal. An nish a basis for asylum. Inter- cious. The threat of fines and
troubling because the letter asylum available to a person applicant need not prove that nal relocation likewise must discipline, untethered from a
largely collapses the distinc- who is unable or unwilling to persecution is more likely be reasonable, not merely careful distinction between
tion between fraud, frivo- return to the country of na- than not. As the Court ex- imaginable. These are fact-in- knowingly fraudulent conduct
lousness, and a claim that tionality “because of persecu- plained, even a one-in-ten tensive and legally contest- and good-faith advocacy, can
the government ultimately tion or a well-founded fear of chance of persecution may es- able questions, not grounds chill lawyers from represent-
finds unpersuasive, while persecution” on account of a tablish a well-founded fear in for branding counsel uneth- ing the very people asylum
casting immigration lawyers protected ground. The phrase an appropriate case. A lawyer ical before a claim has been law was enacted to protect.
who advances a good-faith heard. Asylum seekers often arrive
claim within that legal Immigration lawyers al- traumatized, detained, unfa-
framework is not abusing ready operate under demand- miliar with the legal system,
the system merely be- ing ethical rules that require unable to speak English, and
cause DHS disputes the advocacy, not timidity. ABA without records that can read-
claim or an adjudicator Model Rule 1.1 enjoins law- ily corroborate events occur-
eventually denies it. yers to provide competent ring in repressive or chaotic
The letter also treats representation, including the countries. They are made still
broad categories—gang legal knowledge, skill, thor- more vulnerable when the
violence, domestic vio- oughness, and preparation government portrays their ad-
lence, private-actor per- reasonably necessary for the vocates as presumptive partic-
secution, and conditions matter, while Model Rule ipants in wrongdoing.
in countries DHS con- 1.3 requires reasonable dili- Nor can DHS fairly lay
siders generally safe—as gence and promptness. Mod- the asylum backlog at the
though labels can sub- el Rule 3.1 permits lawyers feet of immigration lawyers.
stitute for individual- to advance claims that have a The government has aggra-
ized adjudication. They nonfrivolous basis in law and vated the very problem it now
cannot. Persecution by a fact, including a good-faith blames on the bar. At a time
nonstate actor may sup- argument for the extension, when the immigration courts
port asylum when the modification, or reversal of were already overwhelmed,
government is unable existing law. Lawyers may the administration fired or
or unwilling to control therefore boldly advance asy- pushed out more than 100 im-
m of the persecutor. Particu- lum claims for their clients, migration judges and sharply
CYRUS D. MEHTA & PARTNERS PLLC lar social group claims challenge restrictive prece- reduced the corps available
require careful analysis
to adjudicate cases. Backlogs
dent, and seek the develop-
of the facts, the statute, ment of the law so long as reflect years of congressional
and governing precedent. their factual representations underfunding, shifting adjudi-
Moreover, the BIA’s are truthful and their legal catory standards, administra-
precedents defining “par- arguments are made in good tive dysfunction, abrupt pol-
ticular social group” are faith. The ethical boundary is icy changes, and a system in
not beyond challenge. clear: under Model Rule 3.3, which immigration courts re-
After Loper Bright a lawyer may not knowingly main housed within the pros-
Enterprises v. Raimon- make a false statement of fact ecuting agency. Removing
2 6th Floor do, 603 U.S. 369 (2024), or law to a tribunal or offer adjudicators while accusing
courts must exercise in- evidence the lawyer knows to lawyers of causing delay is not
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