Justia Professional Malpractice & Ethics Opinion Summaries

The plaintiffs alleged that the defendants marketed fraudulent franchise opportunities to foreign nationals seeking to invest in the United States to obtain residency visas. The complaint included claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law claims for fraud, breach of contract, and malpractice. The plaintiffs claimed that the defendants misrepresented the nature of the investment opportunities, leading the plaintiffs to believe they were purchasing franchises that would qualify them for E-2 or EB-5 visas. Instead, they received licenses that did not meet visa requirements, resulting in financial losses and visa application issues.The United States District Court for the Southern District of Texas dismissed the case for failure to state a claim. The court found that the plaintiffs did not adequately allege a cognizable enterprise under RICO and failed to meet the heightened pleading standards for fraud under Federal Rule of Civil Procedure 9(b). The district court also denied the plaintiffs leave to amend their complaint, citing undue delay and the plaintiffs' failure to provide a proposed amended complaint or additional facts that would cure the deficiencies.The United States Court of Appeals for the Fifth Circuit reviewed the case and affirmed the district court's decision. The appellate court agreed that the plaintiffs failed to plead a RICO enterprise, as the complaint did not provide sufficient factual detail to support the existence of an association-in-fact enterprise. The court also upheld the dismissal of the fraud and fraudulent inducement claims, finding that the plaintiffs did not meet the particularity requirements of Rule 9(b). Additionally, the court found no abuse of discretion in the district court's denial of leave to amend the complaint and the dismissal of claims against certain defendants for failure to effect timely service of process. View "Crosswell v. Rodriguez" on Justia Law

A family of six Mexican citizens entered the United States without authorization and were subsequently placed in removal proceedings. They hired an attorney to help them apply for asylum. Despite having nearly fifteen months to prepare, the attorney requested a continuance only eight days before the hearing, citing the government shutdown as a reason for her lack of preparation. The Immigration Judge (IJ) denied the continuance and, due to the attorney's unpreparedness, deemed the asylum applications abandoned, ordering the family's removal. The Board of Immigration Appeals (BIA) affirmed the IJ's decision.The family appealed to the United States Court of Appeals for the Seventh Circuit. The court dismissed the cases of two family members due to lack of jurisdiction, as their removal proceedings had been terminated after they received special immigrant status. The remaining four family members argued that the IJ erred in denying the continuance and that their attorney was ineffective. The court found that the IJ did not abuse his discretion in denying the continuance, as the attorney had ample time to prepare and failed to do so. The court also noted that the attorney's unpreparedness did not violate the family's due process rights.Regarding the ineffective assistance of counsel claim, the court acknowledged the attorney's failure to prepare but noted that the family did not present this claim to the BIA, thus failing to exhaust administrative remedies. Consequently, the court could not consider the ineffective assistance claim. The court suggested that the family could seek to reopen the proceedings through a motion to reopen or by requesting equitable tolling of the deadline.The United States Court of Appeals for the Seventh Circuit dismissed the petitions of two family members and denied the petitions for review of the remaining four family members. View "Bustos-Millan v. Garland" on Justia Law

Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain. View "Dat v. United States" on Justia Law

In her representation of a client charged with alien smuggling, 8 U.S.C. 1324, Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years, had a number of disagreements with the federal prosecutor, who ultimately moved for sanctions against Migdal. The prosecutor failed to follow Department of Justice policy requiring supervisory approval of sanctions requests. Despite the government withdrawing the motion and indicating that it did not believe that Migdal acted in bad faith, the district court entered orders strongly publicly reprimanding Migdal. The Sixth Circuit vacated, stating that the record does not support any basis for the orders.View "United States v. Llanez-Garcia" on Justia Law

Plaintiffs, Klever Miranda and Nancy Campoverde, entered the U.S. without documentation. Klever received a notice of removal order and was represented by attorney Michael Said. Said advised Klever and Nancy to leave the country and then file a document called a Form I-601 waiver, which permits an applicant who is otherwise ineligible to be admitted into the U.S. based on extreme hardship to a qualifying relative. Said told Plaintiffs that once their son Cesar obtained citizenship, he would be a qualifying relative. However, once Plaintiffs left the country and filed the Form I-601, the applications were denied. Plaintiffs later learned that Cesar was not a qualifying relative. Plaintiffs and Cesar brought a legal malpractice action against Said, including a claim for emotional distress damages and punitive damages. The district court allowed only the claim for economic damages to be considered by the jury and found Said negligent. The court of appeals reversed, finding the claims for emotional distress and punitive damages should have been submitted to the jury. The Supreme Court affirmed, holding that the district court erred in concluding that emotional distress and punitive damages were not available to Plaintiffs. Remanded for a new trial.View "Miranda v. Said" on Justia Law

El-Gazawy a citizen of Jordan, entered the U.S. in 1990 as a non-immigrant, overstayed, and failed to appear for special registration in 2003, required by the National Security Entry-Exit Registration System program. In 2006, the Department of Homeland Security served notice that he was removable under 8 U.S.C. 1227(a)(1)(B); 8 U.S.C. 1227(a)(3)(A) and 1305. At his hearing, El-Gazawy admitted the charges and stated that he would seek cancellation of removal (8 U.S.C. 1229b(b)) or voluntary departure (8 U.S.C. 1229c). The IJ allowed 90 days for the necessary paperwork and advised that failing to timely file fingerprints could result in denial of relief. With an additional schedule change, El-Gazawy had about 14 months to file the necessary paperwork. The IJ concluded that no good cause had been demonstrated for delay, deemed the cancellation claim abandoned, and granted voluntary departure. The BIA dismissed an appeal. El-Gazawy had been represented by attorney Abuzir throughout, but obtained new counsel for filing a motion to reopen, seven months later, arguing ineffective assistance of counsel. El-Gazawy claimed that he had given notice to Abuzir and had filed a claim with the Illinois Attorney Registration and Disciplinary Commission. The BIA denied his motions. The Seventh Circuit denied a petition for review. View "El-Gazawy v. Holder" on Justia Law

In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice. View "New Jersey v. Gaitan" on Justia Law

In these consolidated appeals, the Supreme Court considered whether "Padilla v. Kentucky" (130 S.Ct. 1473 (2010)) could be applied retroactively on collateral review, and whether defendants' attorneys were ineffective under "State v. Nunez-Valdez" (200 N.J. 129 (2009)). In 2004, Defendant Frensel Gaitan was indicted for multiple possession of a controlled dangerous substance (CDS) and distribution charges. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school in 2005, and was sentenced to five years’ probation. Gaitan did not file a direct appeal. In 2008, based on the drug conviction, a removable offense, Gaitan was removed. He thereafter filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. In 2007, Defendant Rohan Goulbourne was indicted on multiple CDS possession and distribution charges. He agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal. Upon review, the Supreme Court concluded that "Padilla" represented a new constitutional rule of law that for Sixth Amendment purposes, was not entitled to retroactive application on collateral review. Although "Nunez-Valdez" governs the standard of attorney performance in these cases, the Court concluded Defendants were not entitled to relief under that decision because neither was affirmatively misadvised by their counsel, nor did they establish prejudice. View "New Jersey v. Goulbourne" on Justia Law

Petitioners, citizens of Mexico, entered the U.S. unlawfully in 1993 and 1998, respectively. Since 2000, husband has been seeking employment-based permanent residency. An individual who would not ordinarily qualify for lawful permanent residency because he entered without inspection, may apply as the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001, 8 U.S.C. 1255(i). According to the court, petitioners' former attorney provided incompetent, and at times ethically questionable, representation throughout the visa petition process, missing filing deadlines and sending associates to hearings without adequate information about the case, so that an IJ granted voluntary departure and the BIA affirmed denial of a motion to reopen. The Third Circuit denied review. The Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. By the time removal proceedings began, petitioners had accrued more than one year of unlawful presence and would have been ordered removed regardless of counsel's actions.View "Contreras v. Attorney Gen. of U.S." on Justia Law

A Polish citizen, who entered the U.S. on a visitor's visa in 1994, overstayed, and allegedly tried to bribe an immigration officer in a 1999 sting operation. Before her removal proceedings began, she married a U.S. citizen, who filed a petition for an alien relative visa. In 2006, after the petition was approved, she applied to adjust her status under 8 U.S.C. 1255. The IJ found her removable, denied her motion to suppress evidence collected in the sting, and decided that she was not entitled to adjust her status. The Board of Immigration Appeals dismissed an appeal. The Seventh Circuit dismissed an appeal and forwarded information about petitioner's attorney to the state disciplinary board. The petition included a single, underdeveloped legal argument: that evidence gathered during the sting should have been suppressed because the operation was an egregious violation of petitioner's right to due process, an argument foreclosed by an earlier case. The court noted its jurisdictional limitations, but stated that the agency's evaluation of the equities was not particularly persuasive and that it would have required more than weak circumstantial evidence that an alien had bribed a federal immigration official.