Can or Should Attorneys Really Hit the “Submit” Button on the DS-160 and DS-260 Forms?

I previously posted on my blog that officials from the Cd. Juarez post had announced that attorneys can hit the “submit” button on both the DS-160 and the newer DS-260.  Since then, I have had some discussions with other attorneys on this topic and I have come to the conclusion that this raises some ethical issues that attorneys need to be aware of.  First, a little background.  

The Department of State Liaison committee at AILA had brought up this issue with the Visa Office.  The concern has been all along that there are a lot of unscrupulous characters that hang around the consulate and offer to review client’s paperwork before their interviews for a fee or even help them fill out forms.  They are a huge problem that most consular officers recognize and are helping to fight against.  However the vultures keep doing what they are doing.  In Cd. Juarez they even wear official looking badges and colored polo shirts that state that they help applicants with the DS-260.  With the new electronic forms coming into being, this posed problems for us attorneys when dealing with unsophisticated clients who not only do not know how to use a computer, but don’t even have access to one.  Furthermore the form must be filled out in English, so language provided another barrier.  Inevitably, these clients will turn to these vultures for help since we attorneys are too far away to meet with our clients and it would be cost prohibitive to go meet each client abroad.  

The Visa Office was adamant that only the applicant can submit the electronic form; attorneys are not allowed to so.  However, there have been numerous reports from different consular posts where consular officers have advised attorneys that they themselves can submit the form for the client.  Their rationale is that the applicant is asked to swear to the contents of the application at the beginning of the interview anyway, so perhaps they thought that the regulatory requirements were being met anyway.  The Visa Office is aware of consular officers advising applicants and attorneys this way, but they remain adamant in that they should not be doing so.  

The VO has been adamant on requiring the applicant to submit the form in connection with allegations of fraud since many applicants are claiming that a misrepresentation on the form should not be held against them since it was an attorney or preparer who filled out the form.   However, I don’t think the VO grasps that the vultures around the consulates pose a bigger problem than the fraud concerns which can be addressed in a variety of ways.    

Here is my take on the regulatory provisions and whether they are met or not.  Following this, I will address ethical concerns.  

When the new DS forms came into being there were regulations promulgated by the Department of State.  The relevant regulations are as follows:

The non-immigrant visa regulation provides:

41.103(a) Filing an application--

41.103(a)(1) Filing of application required. Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 or, as directed by a consular officer, an application on Form DS-156. The Form DS-160 must be signed electronically by clicking the box designated "Sign Application" in the certification section of the application.

… 

41.103(b)(3) Signature. The Form DS-160 shall be signed electronically by clicking the box designated "Sign Application" in the certification section of the application. This electronic signature attests to the applicant's familiarity with and intent to be bound by all statements in the NIV application under penalty of perjury. 

(Emphasis added).

The immigrant visa regulation provides similarly:

42.63(a) Application Forms.

42.63(a)(1) Application on Form DS-230 or Form DS-260 Required.--Every alien applying for an immigrant visa must make application, as directed by the consular officer, on Form DS-230, Application for Immigrant Visa and Alien Registration, or on FormDS-260, Electronic Application for Immigrant Visa and Alien Registration. This requirement may not be waived. Form DS-230 consists of parts I and II which, together, are meant in any reference to this Form.

(Emphasis added).  

Looking at the regulatory language on the requirements for the new electronic forms, there is no explicit language that says applicant must hit the button.  It says applicant must make an electronic application and applicant must swear to the contents of the application.  Both of these requirements are satisfied because an electronic application is made and the applicant swears to the application at the interview and as this cable requires.  Therefore, it seems that there is some protection from the regulation on what the consular officers suggest we do.  However, beware of 41.103(b)(3) which states that by clicking the "sign application" button the form is signed and certified.  Therefore not everyone agrees with this interpretation above.  Some very well respected attorneys take the position that the attorney's act of clicking the button is essentially the attorney making the attestation on behalf of the client.  In essence, the latter position is that by clicking the button both purposes of the regulation (making the application and attesting to its truthfulness) are accomplished in the single act of clicking the submit button. 

This leads to some ethical concerns so I wouldn’t take the above analysis to the proverbial bank.  Think back to the days of the paper DS-156.  Would it be ok for an attorney to sign the form for the client?  The answer would be no.  Since the DS-160 is essentially an electronic version of the DS-156 the same argument goes for that.  In the same fashion, if both the making of the application and its attestation are encompassed in the one act of clicking the "sign application" button as explained above, the attorney would be essentially making the attestation for the client which the regulation does not provide for. 

A respected colleague suggested that the solution would be for the VO to amend these electronic forms and put an option for attorneys and preparers to submit the form on behalf of the applicant while attesting that the contents of the application were explained to the applicant and the applicant can be required to swear to the contents at the interview and perhaps electronically “sign” the application before the consular officer.  This would be akin to the old way of submitting the old DS-156 electronically and printing it out with a bar code which the applicant would sign ink on paper and take with him or her to the interview.  This would alleviate any ethical concerns while protecting the integrity of the system.  

The Department of State should stop talking out of both sides of its mouth and take action so this issue can be settled. 

Attorneys can now press the "submit" button on the electronic DS-260 form.

At a recent conference in Memphis, TN, an official from the Cd. Juarez consulate confirmed that attorneys can click the "submit" button the DS-260 form if they enter their information as the preparer.

EDIT 05/16/2011: After receiving questions, I went back and checked with the CDJ official regarding the DS-160 form.  The NIV chief at CDJ confirmed that the above applies to DS-160 in the same way; attorney must enter his or her information as preparer to be able to hit the "submit" button.

EDIT 05/23/2011: This news poses some ethical concerns.  See updated blog here: http://noblelawfirm.blogspot.com/2011/05/can-or-should-attorneys-really-hit.html

That was the rule yesterday.

I'm sitting in an airport writing this. People usually have aha moments in the bathroom; I have them in airports. I find myself in airports more than I would like to these days, but the one nice things about it is that I have some down time to think.

As I was going through airport security this morning, I couldn't help but reflect that in the aftermath of 9/11, the United States went into knee jerk reaction mode. The 3 oz toothpaste tube sprang into being and now you have to show up to the airport the night before so you have time to go through security. Why even bother getting dressed at home if you are on the way to the airport; just bring your clothes with you and put them on after you clear the security scanner that gives a naked picture of you to some nondescript TSA agent hiding somewhere to protect your privacy. I don't envy that person's job.

These are the changes most people see. What most ordinary people don't see, are the unchecked power the government gets and the erosion of due process rights that comes with every security motivated paranoia. I'm not going to rehash what has been dealt with ad nauseam by the media in the last decade. My focus is more specific to the enforcement arm of the Department of Homeland Security (DHS), the Immigration and Customs Enforcement (ICE). As people starting taking shoes off at the airport and leaving nail clippers and tweezers at home, DHS was born and was given more money and power than it knew what to do with. ICE got the prized label of "law enforcement" and with it a lot of perks and unchecked power in the name of national security.

Don't get me wrong, I am thankful for the men and women who put their lives on the line to protect us. However any humongous bureaucracy given unchecked power is bound to have some abuse of it.

Immigration violations are considered civil violations therefore foreign nationals who break the immigration laws do not have a lot of the due process rights that defendants have in criminal proceedings. This is so even though many immigrants are detained in ICE run jails for considerable periods of time, sometimes serving much more time than they did for a criminal violation that may have landed them there. In addition, Congress has taken away a lot of the rights of foreign nationals to seek redress in the courts when they are being wronged.

With this unchecked power that the agency is bestowed, a few bad apples who take advantage of it are inevitable. I live and practice law in the Albuquerque and Santa Fe, NM region. In the area where I practice, until recently, ICE got away with a lot.

My main bone to pick is the release of detained foreign nationals on bail. Most of my clients who come under the ICE radar are those who have been arrested for a criminal violation; a substantial majority of them are those arrested for failure to pay traffic tickets or driving while intoxicated. Most of these clients are generally granted small bonds by the state judges. However, when ICE takes them into custody, ICE needs to set its own bond before the foreign national can go home for dinner. So, as dutiful attorneys that we are, we go and ask for bond to be set for our clients. For a while we were being told ICE in Albuquerque had a "no-bond" policy. We were being told that despite the fact that we would walk in there with written guidance from ICE headquarters in Washington which clearly stated that there was no such thing as a "no-bond" policy. The answer to that would be something along the lines of "that was yesterday's rule, this is the rule today." Our clients would then be sent to a detention center about 4 hours away awaiting a bond hearing before an immigration judge that, at one point, was taking 7-8 weeks to schedule. Don't even get me started about bond hearings before some immigration judges. That's a whole other blog.

Making up rules on the fly used to be pretty common in my area, "your client has an arrest for simple possession of marijuana from 15 years ago? Sorry we have a no-bond policy for drug related offenses... You say he has not been convicted yet, well you know he did it so we don't want a dangerous criminal on our streets.... You want to know when this policy was set? You don't need to know that; national security is at stake so we don't have to give an account to you, this is the rule today." I could go on and on about stories like these.

This is not the case with every official at the local office. I have had many fair dealings with the top official at that office, but if he wasn't around, we had to deal with someone in middle management whose attitude was that my clients were the scum of the earth and I was even worse for representing them.

Recently there has been a change in leadership at the El Paso Field Office which oversees all of New Mexico. We had a chance to meet the new Director and I am very encouraged by his integrity and commitment to be fair which is a major change from the previous leadership. When we brought all these issues before him he expressed concern and vowed to make changes and opened a line of communication. Nevertheless, the shenanigans of a few bad mid-management apples continue. That's the problem with big bureaucracies, it takes quite a bit of time for the new era of change to trickle down and seep in to those who enjoy flaunting that unchecked power.

New leadership at the U.S. Consulate and USCIS in Cd. Juarez, Mexico.

There has been quite a bit of change in leadership at both the consulate and USCIS in Cd. Juarez.  The new appointments at the consulate are as follows:

Thomas Rogan - Consular Chief

Roger Rigaud - Deputy Consular Chief

Cathy Holt - Immigrant Visa Chief

In addition, Warren Janssen left as the head of the USCIS Cd. Juarez office and became the Deputy Director of the Nebraska Service Center.  A new replacement has been chosen, however that person has not been formally offered the position therefore his or her name has not been announced yet.  Government sources state that it may take some time for the new replacement to be notified, offered the position and begin the process of entering on duty.  In the mean time, Mari-Carmen Jordan, the Deputy District Director for the Mexico City District Office is the interim Field Office director until the new replacement takes office.  Pilar Peralta Mihalko is still the Branch Chief for the International Adjudications Support Branch located in Anaheim, CA.  The Anaheim office is the one that handles a majority of the I-601 waivers referred out of Cd. Juarez.  

Stay tuned for more information as it becomes available. 

 

We hired a new associate.

We are proud to announce that Amber Weeks will be joining our firm in September of this year after she finishes her clerkship at the NM Court of Appeals. Amber graduated 3rd in her class and she was the editor of the Natural Resources Journal at the University of New Mexico School of Law. Amber has given countless hours to non-profit organizations helping low-income immigrants.

We are happy to have her join our team and are looking forward to continue to provide top notch legal services to our community and beyond.

It doesn't make common sense, it makes government sense! A rant on bureaucracy and the naturalization test.

Imagine yourself at a cocktail party and a friend approaches you and asks, "Who did the U.S. fight in World War II?"

Your first instinct is probably, Germany, or Italy, or for that matter, a number of other countries (http://en.wikipedia.org/wiki/Axis_powers).

Not so, says the U.S. Government.  You have to say exactly "Japan, Germany and Italy."  If you end up including any other countries that were a part of the Axis Powers, or you leave any one of the big three out, you end up failing the Naturalization exam. 

There is a very interesting phenomenon when it comes to dealing with bureaucrats: they don't feel free to exercise independent judgment.  This is more of a problem with lower level bureaucrats than the higher ones.  It's as if on the first day of bureaucrat school, they have to take indoctrination 101: "you stick to the script."  The bigger the bureaucracy the stiffer its bureaucrats.  To be fair, I don't mean to degrade the men and women who dedicate their lives to public service, I simply mean to illustrate the nature of bureaucracies. 

To illustrate, think of a bureaucrat who has a manual that says, "the sky is yellow."  You go to the bureaucrat and say, "the sky is blue, look out the window, it's blue."  The bureaucrat will inevitably say, "regardless of what the true color of the sky may be, the sky is yellow, that's what the manual says." 

With this preface let me get to my story.  I recently attended a naturalization interview with a client.  For those of you who don't know, naturalization applicants are given a civics test as part of their application to become U.S. citizens.  There are 100 possible questions that applicants need to study.  They are found here: http://www.uscis.gov/USCIS/Office%20of%20Citizenship/Citizenship%20Resource%20Center%20Site/Publications/100q.pdf.  An applicant is given 10 out of those 100 questions and must answer 6 of them correctly to pass the test.

My client was having a hard time with the test.  She answered 5 correctly and 4 incorrectly.  It all hinged on one question. The pressure was on.  The final question was number 81 on the study guide:

81. Who did the United States fight in World War II?

The book answer is "Japan, Germany and Italy."

My client says, "Japan."

The officer starts pulling her copy of the study guide to check the answer.  I say, "you're not seriously going to check the answer to that, are you?"

Sure enough, she did and tells my client that the answer is incomplete.  She starts pushing my client to give more of the answer.  My objection: "she answered it correctly, just because she didn't give the book answer it does not mean she answered incorrectly."  The question did not ask "Who all did the U.S. fight during WWII?"  Logically, the way the question is phrased, a mention of any of the 3 countries listed in the book would be a correct answer.  Not so for a bureaucrat.  The officer kept pushing my client to answer more.  My client eventually says "Italy", the second correct country, and then gets stuck.  Officer keeps insisting and my client finally says "Africa" just to say something and end it.  Aside from the point that, technically, the U.S. did fight in Africa, I let it go and agreed that it was an incorrect answer since the question asked "who" the U.S. fought and not "where."  Nevertheless, my client should have been passed on that questions since she did answer correctly with Japan and Italy. 

After about an hour's discussion and argument, the officer decides she needs to check with a supervisor.  The supervisor's answer, "fail it is."

Anyone who knows me knows that I don't like to take an answer like that laying down.  So off I go to talk to the supervisor.  The supervisor chews it over for a few days and decides to reverse the officer's decision since the client had technically answered correctly and had only given an incorrect answer because the officer kept pushing for more.

I was happy as a clam.  Finally a bureaucrat who exercises some common sense and independent judgment. 

I was starting to change my opinion about bureaucrats until... I get another call from the supervisor a few days later (and after I had given the client the good news) who informs me that his boss had gotten wind of this issue and she had decided to overrule his decision and fail my client.

Our lawyer's association raised this issue at a liaison meeting with USCIS, but the answer was that they have to stick to the book answers regardless of whether the preface to the current naturalization test says:

"Although USCIS is aware that there may be additional correct answers to the 100 civics questions, applicants are encouraged to respond to the civics questions using the answers provided below."  (Emphasis added).

Last time I checked, "encouraged" was not a synonym for "required."

Translation: what the book says is correct regardless of the completeness or accuracy of the book answer.  This opens a whole new can of worms about the accuracy of the book answers which was superbly handled by Dafna Linzer here: http://www.propublica.org/article/how-i-passed-my-us-citizenship-test-by-keeping-the-right-answers-to-myself.

My client will be given a second chance as are all applicants who fail the civics or English test, but in case she fails it again, I would LOVE to litigate this issue.  I dream of the day when a bureaucrat explains to a federal judge how "Japan" is not the correct answer to "who did we fight in WWII?"

Welcome to my blog!

I figured that in the age of technology any law firm not having a Facebook page and a blog is considered so 1999.  So here I am: a Facebook page and a blog all in the inside of 24 hours.

With this blog I hope to bring commentaries about new cases coming out, practice tips for other attorneys, or just plain old rants.  Anyone who has practiced immigration law understands that we need to blow off steam constantly when dealing with the giant behemoth called DHS.