Ethics in Immigration Law: Immigration Benefit Fraud & the Peril Of Conscious Avoidance

I. Introduction

The recent Enron Corporation bankruptcy filing, reportedly the largest in history, has raised issues of whether lawyers representing Enron have complied with legal and ethical obligations. The prominent Chicago law firm of Kirkland & Ellis has recently become a target of such inquiries by Enron’s creditors, at least one congressional committee, and other federal investigative entities.¹

Geoffrey C. Hazard, Jr., a Professor of Legal Ethics at the University of Pennsylvania stated that whether Kirkland & Ellis had legal or ethical problems could well depend on what their attorneys knew.² According to Professor Hazard, if Kirkland & Ellis lawyers thought that something was improper in the course of their representation of Enron, the lawyers had a duty to make further inquiries. That after such an inquiry, the lawyer must decide whether the client’s explanation was reasonable. That "the lawyer should understand that if later on this (story) is shown to be a story they had no business believing...that they had to be putting their head in the sand, then they are going to be in trouble."³ In his statement, Professor Hazard was alluding to the conscious avoidance doctrine of liability.

Immigration lawyers would do well to pay heed to the conscious avoidance doctrine of liability in view of the recently issued report on Immigration Benefit Fraud published by the United States General Accounting Office ("GAO) in response to inquiries from the United States House of Representatives Subcommittee on Immigration and Claims, Committee on the Judiciary⁴ According to the GAO, immigration benefit fraud is a significant problem that threatens the integrity of the legal immigration system. That INS officials indicated that immigration benefit fraud was pervasive and significant and would continue to increase as smugglers and other criminal enterprises used fraud as a means for bringing illegal aliens, including criminal aliens, into the country. That INS officials described immigration benefit fraud as being a major problem and was rampant.⁵

Currently, the INS’ goal is to focus on large scale complex fraud schemes against facilitators or criminal organizations on cases involving multiple persons and large sums of money with national coordination.⁶ Individual cases involve an individual fraudulent application for immigration benefits by or on behalf of an alien in which prosecution is not a factor in acceptance and the main purpose is to gather evidence to deny the benefit sought.⁷ "Facilitator" includes any person who or entity that has an income of at least $10,000 but less than $100,000 per year from illegal immigration related fraud activities, and include those who prepare fraudulent benefit applications and those who arrange sham marriages for a fee. "Organizations" are large scale operations with income in excess of $100,000 per year from illegal immigration related fraud activities.

However, the GAO has recommended that the United States Attorney General direct the Commissioner of the INS to take steps to ensure a more focused approach to effectively investigate and prosecute such facilitators and organizations engaged in immigration benefit fraud. In view of the September 11, 2001 terrorist attacks on the United States, the GAO report of rampant immigration benefit fraud, and the intense investigative climate created by the Enron debacle, immigration lawyers and their clients can expect greater scrutiny of petition and application filings for immigration benefits.

This article will examine and discuss the types of filings in which the GAO found prevalent fraud, criminal and civil liability to which the immigration lawyer may be exposed for fraudulent conduct, the conscious avoidance doctrine of liability and its application, and the immigration lawyer’s ethical duties and responsibilities when seeking immigration benefits for clients.

The Immigration and Nationality Act, as amended, (the Act) provides numerous benefits to aliens. Such benefits include nonimmigrant visas for temporary stay in the United States to engage in tourism,⁸ business,⁹ trade or investment,¹⁰ employment in specialty occupations,¹¹ cultural exchange for education or training,¹² intracompany transferees engaged in executive, managerial, or specialized knowledge employment,¹³ performers and athletes.¹⁴ Other immigration benefits include request for change of nonimmigrant status, application for alien employment certification,¹⁵ classification under various immigrant visa categories,¹⁶ adjustment of status to permanent residence,¹⁷ and immigrant visas for permanent residence.¹⁸

The INS is responsible for adjudicating petitions and applications for immigration benefits. In this adjudicatory process, the INS is responsible for ensuring that persons eligible for immigration benefits receive them in a timely manner while aliens who are ineligible are denied benefits. As reported by the GAO, an increasing number of petitions and applications for immigration benefits involve the use of fraud to secure such benefits.¹⁹ According to the GAO, immigration benefit fraud falls into two broad categories: Benefit Application Fraud (BAF) and Document Fraud (DF).

In general, BAF involves the willful misrepresentation of a material fact to gain an immigration benefit in the absence of lawful entitlement.²⁰

Marriage Fraud (MF) involves an ineligible alien who makes a false claim to a bona fide marriage with an eligible United States petitioner in order to obtain immigration benefits, including classification as an immediate relative for immigrant visa issuing purposes or adjustment of status, employment authorization, and parole which permits the alien to depart and re-enter the United States during the pendency of such proceedings. Though the parties marry, the parties do not intend to live together as husband and wife at the time of the inception of the marriage.²¹

Occupational Preference Fraud (OPF) occurs when businesses as employers in the United States claim falsely that aliens are needed for employment because of their education, technical knowledge, or experience and that U.S. workers, including permanent resident aliens, are not available, able, willing, and qualified for the position offered to the alien. This arises in connection with an employer’s filing and prosecution of an application for alien employment certification.²² In connection with such an application, employers are required to conduct a good faith test of the U.S. labor market, including good faith efforts to contact and consider applicants who appear to be qualified for the offered position, and to provide proof and documented results of such labor market testing efforts.²³ Certification or approval of the application for alien employment certification occurs after the Certifying Officer, United States Department of Labor, Employment and Training Administration, has determined that the employer has established that there are no U.S. workers who are able, willing, qualified and available to perform the job offer described in the application.²⁴

Occupational preference fraud also includes fraudulent petitions for immigrant visa classification under employment based immigrant visa categories. In particular, the troublesome alien labor certification process can be avoided by seeking to qualify the alien under any one of the labor certification exempt immigrant visa classifications: aliens of extraordinary ability, an alien who is an outstanding professor researcher, or who is a multinational executive or manager.²⁵

Nonimmigrant visas offer aliens planning to stay temporarily in the United States such as those on business, tourism, student, or for temporary employment.²⁶ Fraud occurs, for example, when the alien falsely represents an intent to remain temporarily in the United States, or to engage in an activity or purpose other than that stated in the application or petition. In many instances, nonimmigrant visa fraud incorporates document fraud, the use of false or fraudulent evidence to obtain nonimmigrant visa classification. For example, in 1998 and 1999, INS referred numerous H-1B petitions to the Department of State Consular Post in Chennai, India, because of suspected benefit application fraud. The Consular Post Major Fraud Investigation Task Force found that approximately 45% of claims made in 3,247 petitions referred to the Consular Post through March 31, 1999, were of questionable validity and that 51% of the work experience claims made to the INS were fraudulent.²⁷ Other investigations found abuse by H-1B employers who falsely requested and certified the need for foreign workers and abuse by some religious organizations that existed solely as a means to carry out immigration fraud in the religious worker program.²⁸

And recently, the INS California Service Center found widespread L-1A nonimmigrant intracompany transferee visa fraud by foreign companies, many of whom were located in the Los Angeles area.²⁹

This fraud relates to aliens seeking asylum in the United States. Applications for asylum are made either to the INS or before the immigration judge in a removal proceeding. Asylum fraud generally includes document fraud, the use of fraudulent documents to support the claim for asylum. Asylum fraud poses a significant challenge to INS asylum officers because applicants can satisfy their burden of proof through credible testimony and the use of corroborative documentation.³⁰

In general, document fraud encompasses the counterfeiting, sale, or use of fraudulent documents such as birth certificates, employment verification letters, employment offer letters, false transcripts and degree certificates and diplomas, and other false statements and affidavits to secure an application benefit. Most benefit application fraud cases involve document fraud.³¹

An immigration lawyer who knowingly engages in immigration benefit fraud may incur criminal and civil liability. In addition, he/she faces the possibility for disbarment or suspension from practicing before the Immigration and Naturalization Service, Immigration Courts, and/or Board of Immigration Appeals.³²

Federal statutes provide for a range of criminal charges against persons and entities who engage in immigration benefit fraud. Immigration lawyers should be aware of the following:

Criminal liability can be imposed on any attorney who knowingly and willfully makes any materially false, fictitious or fraudulent statement or representation in an application or petition or in any supporting statement or affidavit or who makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry in connection with an application for an immigration benefit.³³

An immigration attorney may now incur criminal penalties for failing to disclose his/her role in preparing an application which was falsely made.³⁴ This provision provides that whoever, in any matter within the jurisdiction of the Immigration and Naturalization Service, knowingly and willfully fails to disclose, conceals, or covers up the fact that they have, on behalf of any person and for a fee or other remuneration, prepared or assisted in preparing an application which was falsely made shall be subject to fine and/or imprisonment, and suspension from making any such other application or petition before the Service.³⁵ The failure of a preparer to identify himself adequately in a section of an immigration form calling for that information combined with the falsity of the form constitutes prima facie evidence of a knowing and willful concealment.³⁶

Moreover, INS takes the view that the term "preparation" should be construed broadly to include actually filling out the form itself, completing other documents in support of the form (with knowledge at the time of completion that the information in the document is false and that the document will be attached to the form), instructing another about filling out a form (with knowledge that the information entered on the form will be falsely made). Furthermore, the act of preparation may be related to a document other than a specific immigration benefit application form provided that the document was submitted to the Government in support of a specific immigration benefit application form and that the preparer was aware that the document would be submitted in support of the immigration benefit application form at the time the document was prepared.³⁷

Finally, the term "falsely made" is statutorily broad. "Falsely made" is defined to include the preparation or provision of an application or document with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a fact which is material to the purpose for which it was submitted.³⁸ Accordingly, an application for employment authorization on behalf of an alien whose application to adjust status has been denied may be deemed to be "falsely made" if there were no other regulatory grounds for the grant of such authorization when the attorney had knowledge of the denied application.

Criminal liability may be imposed on anyone who knowingly forges, counterfeits, alters or falsely makes any immigration document used to obtain entry into the United States or as evidence of authorization to remain in the United States or for employment in the United States. ³⁹

The Act provides for civil penalties for instances of document fraud and immigration benefit fraud.⁴⁰ Civil penalties include the issuance of a cease and desist order from future violations and the payment of a civil penalty in an amount of not less than $250 and not more than $2,000 for each instance of document or immigration benefit application fraud.⁴¹ Under this provision of the Act, a person or entity is prohibited from knowingly engaging in the following acts:

1. To forge, counterfeit, alter or falsely make any document for the purpose of satisfying a requirement of this fact or to obtain a benefit under the Act,⁴²

2. To use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeited, altered or falsely made document to satisfy a requirement or to obtain a benefit under the Act, ⁴³

3. To use or attempt to use or to provide or attempt to provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of satisfying a requirement or obtaining a benefit under the Act, ⁴⁴

4. To accept or receive or to provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of obtaining a benefit under the Act, ⁴⁵

5. To prepare, file, or assist another in preparing or filing any application for any benefit under the Act or any document required under the Act, or any document submitted in connection with such an application or document with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose benefit it was or is being submitted. ⁴⁶

On June 27, 2000, the Immigration and Naturalization Service published Final Rules governing the conduct of attorneys before the Immigration & Naturalization Service, Immigration Judges and Immigration Courts, Board of Immigration Appeals, and the Executive Office for Immigration Review.⁴⁷ The Final Rule implements provisions contained in the Immigration Act of 1990 providing sanctions against attorneys who engage in various forms of professional misconduct, including the charging or grossly excessive fees,⁴⁸ bribes,⁴⁹ false statements and willful misrepresentation,⁵⁰ obnoxious conduct,⁵¹ conviction of serious crimes,⁵² false certification of a copy of a document,⁵³ frivolous behavior,⁵⁴ failure to provide effective assistance,⁵⁵ repeated failures to appear timely for scheduled hearings,⁵⁶ and participating or assisting in the unauthorized practice of law. ⁵⁷

The EOIR is given authority to investigate complaints and impose disciplinary sanctions against practitioners who appear before its tribunals.⁵⁸ Both the EOIR and the INS possesses authority to investigate allegations of ethical misconduct and to initiate disciplinary proceedings against attorneys. ⁵⁹

A ground for disciplinary sanction must be established by clear, unequivocal and convincing evidence.⁶⁰ Upon the finding of a violation warranting disciplinary action, the adjudicating officer may order appropriate sanctions, including suspension and expulsion from practicing before the INS, Immigration Courts, Board of Immigration Appeals, and/or Executive Office for Immigration Review.⁶¹ Administrative appellate review is provided to the sanctioned practitioner.⁶² Moreover, procedures for reinstatement after expulsion or suspension from practicing before the administrative agency is provided.⁶³ The Final Rule also provides for notification of disciplinary proceedings against attorneys to be forwarded to the licensing authorities for states in which the attorney is licensed to practice. ⁶⁴

The doctrine of conscious avoidance permits an inference of actual knowledge of a particular fact if the person is aware of a high probability of the fact's existence unless he or she actually believes that it does not exist.⁶⁵ This doctrine is also known as the "willful blindness" or "deliberate ignorance" doctrine.⁶⁶ In a criminal prosecution context, the conscious avoidance doctrine is that with respect to an offense in which the defendant’s knowledge of a given fact is an element, the knowledge element is established if the fact finder is persuaded that the defendant consciously avoided learning that fact while aware of a high probability of its existence, unless the fact finder is persuaded that the defendant actually believed the contrary.⁶⁷ Accordingly, knowledge of a particular fact will be established if the defendant has his suspicion aroused but then deliberately omits to make further inquiries because he wishes to remain in ignorance. ⁶⁸

Immigration lawyers have been prosecuted successfully under the conscious avoidance doctrine. In United States v. Abrams,⁶⁹ the defendant was an immigration attorney who had been charged on two counts of causing false statements to be made to the Immigration and Naturalization Service in violation of 18 U.S.C.A. §1001. The United States Court of Appeals upheld Mr.Abrams’ conviction where the jury found from the evidence that he had acted with reckless disregard of whether statements in an affidavit that he had prepared were true and acted with a conscious purpose to avoid learning the truth. The affidavit prepared by Mr.Abrams was used to support the filing of an application for extension of stay. The affidavit stated that the client intended to depart the United States on a scheduled date and had made plans for such departure. The Court stated that although appellant may not have been specifically aware of what his client’s plans for departure were, the jury could have found from the evidence that Mr. Abrams had acted with reckless disregard of whether the statements made were true and with a conscious purpose to avoid learning the veracity of the statements. Likewise, in United States v. Sarantos,⁷⁰ the United States Court of Appeals held that if an attorney who prepares a visa petition on behalf of an alien who had entered into a sham marriage in order to obtain permanent resident status in the United States acts with reckless disregard of whether the statements made in the petition are true and with a conscious effort to avoid learning the truth, the attorney may be convicted of aiding and abetting the making of such false statements under 18 U.S.C.A. § 1001 & 2. Mr.Sarantos was an immigration attorney who conspired with another individual to arrange sham marriages for Greek nationals who sought permanent residence in the United States. The parties to the sham marriages utilized his services to prepare filings with the INS. The cooperating U.S. citizen spouse would sign a blank visa petition for Mr. Sarantos who would later complete the petition for filing with the INS. In each case, the immigrant visa petition stated falsely that the parties were living together as husband and wife. Sarantos knew that the couple were not living together and counseled the U.S. citizen spouse not to inform the INS of any payment that the citizen spouse received for entering into the marriage.⁷¹

Although the Government could not establish that Mr.Sarantos was ever explicitly told that the couples were not living together, evidence adduced at trial enabled the jury to find that Mr. Sarantos was aware of the sham nature of ht marriages. There was evidence that the husband and wife shared no common language; the execution of divorce papers simultaneously with immigration papers; that Sarantos was aware that the U.S. citizen spouse had been paid a fee to enter into the marriage; and that Sarantos was indirectly informed that the parties were not living together.⁷²

On appeal, Mr. Sarantos challenged the charge to the jury which stated:

Overruling Mr.Sarantos’ contention that this did not amount to "knowledge," the Court of Appeals upheld the validity of the jury charge. According to the Court, construing "knowingly" in a criminal statute to include willful blindness to the existence of a fact served a purpose in preventing an individual like Mr. Sarantos from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct. Rejecting Mr. Sarantos’ contention that an attorney must investigate "the truth of his client’s assertions" or risk going to jail, the Court stated that an attorney should not counsel others to make statements in the face of obvious indications of which he is aware that those assertions are not true.⁷⁴

Immigration attorneys must act with vigilance when handling immigration benefit applications and petitions for clients. If the attorney’s suspicion is aroused with respect to a client’s assertion in a petition or application or with respect to the veracity of a supporting document or with any statement that is made on behalf of the client in connection with the prosecution of the application or petition, the attorney cannot afford to omit making further inquiries because of a desire to remain in ignorance. In doing so, the attorney will be deemed to have knowledge of the falsity of the statement or document.

The conscious avoidance doctrine appears to be incorporated into the immigration civil fraud provisions of the Act.⁷⁵ Specifically, it is fraudulent for any person or entity to knowingly prepare or file or assist another in preparing or filing any application for benefits under the Act with knowledge or in reckless disregard of the fact that such application or document was falsely made.

The conscious avoidance doctrine can arise in numerous immigration benefit application and petition situations. The following is a list of examples in which the doctrine may be applied to find culpability for immigration benefit fraud.

The filing of an immigrant visa petition for alien relative representing that the parties are living together as husband and wife when the attorney learns or acquires knowledge of one or more of the following circumstances: parties are not in fact residing at the same place; parties are not maintaining joint banking/checking accounts; parties not maintaining joint credit card accounts; parties are not listed as joint tenants under a lease agreement to the residence or as owners of the same residence; parties not listed as beneficiary of each other’s insurance benefits; an economic benefit has been conferred on the U.S. citizen spouse solely for the purpose of entering into the marriage; substantial age differential between the parties; inability of the parties to communicate among each other because of language differences; and any other circumstances that may tend to show that the parties do not intend to live together as husband and wife at the inception of the marriage.

In the context of alien employment certification application filings, the statement of the offer of employment which the employer has no intention of fulfilling at any time; the statement of a wage offer which the employer has no intention of paying at any time; the statement of requirements for the position which in fact do not exist for the position according to an existing job description for the position; a statement of the results of a labor market testing or recruitment effort that is substantively contrary to actual results; the misrepresentation of the alien’s prior work experience or use of fake employment verification letters of prior work experience; and the use of fraudulent transcripts and diplomas to support claims of academic qualifications that in fact do not exist.

Misrepresentation of the positions in which the alien was employed abroad or to be employed in the U.S., misrepresentation of the ownership relationship between the U.S. petitioning entity and the alien's employer abroad, or misrepresentation of the alien's quantifications.

Immigration attorneys have an ethical responsibility and obligation to avoid engaging in immigration benefit fraud. These obligations are clearly set forth in the ABA Model Rules and Disciplinary Rules adopted by the various states that regulate the conduct of attorneys. In addition, these Model Rules have been incorporated into the Final Rules of the Immigration and Naturalization Service governing the professional conduct of attorneys practicing before the INS, Immigration Judges and Immigration Courts, Executive Office for Immigration Review, and Board of Immigration Appeals.⁷⁶

It is clear that the lawyer has a duty not to make a false statement of material fact or law to a tribunal;⁷⁷ offer evidence that the lawyer knows to be false;⁷⁸ and fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.⁷⁹ Likewise, a lawyer shall not counsel a client to engage or assist a client to engage in conduct that the lawyer knows is fraudulent.⁸⁰ The lawyer may not knowingly assist a client in fraudulent conduct nor recommend the means by which a fraud might be committed. ⁸¹

Under very limited circumstances, a lawyer is not permitted to reveal a client’s course of action that has already begun and is continuing and which is fraudulent. However, the lawyer must not act to further the course of unlawful action including counseling on how the action may be concealed.⁸² Simply stated, the lawyer cannot continue representing the client in conduct that the lawyer initially believed to be legally proper but subsequently discovers is criminal or fraudulent.⁸³ Under such circumstances, the attorney may be required to withdraw from continuing representation.⁸⁴

As a general rule, an attorney does not vouch for the evidence submitted in a cause.⁸⁵ However, where circumstances exist that may cause application of the conscious avoidance doctrine of liability, a prudent immigration attorney will take appropriate measures to inquire into the veracity of the offered evidence. Upon discovery that material evidence is false, the attorney should seek to persuade the client that such evidence should not be offered or used in connection with an immigration benefit or application filing.⁸⁶ If such evidence has been offered, its false character may be required to be disclosed.

The attorney must take reasonable remedial measures if he is unable to effectively persuade the client to disclose the false nature of the evidence.⁸⁷ This may require the attorney to withdraw from representation if such withdrawal will remedy the situation.⁸⁸ If the attorney’s withdrawal will not remedy the situation, the attorney should make disclosure to the tribunal.⁸⁹

An immigration lawyer has a responsibility and obligation to avoid professional misconduct.⁹⁰ Professional misconduct includes the commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer;⁹¹ engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;⁹² and engaging in conduct that is prejudicial to the administration of justice.⁹³

In view of the post-September 11, 2001 intense INS scrutinization of aliens present in the United States and those seeking to enter, the recently published GAO report on pervasive and prevalent immigration benefit fraud, and the Federal Government’s increased awareness and attention to fraudulent conduct arising from the Enron bankruptcy filings and related investigations into fraudulent accounting practices and business transactions, immigration lawyers must be more attentive to avoiding immigration benefit fraud. They must carefully draw the line between representing their clients competently and zealously and avoiding professional misconduct that may expose them to criminal/civil liability and to possible suspension or expulsion from practicing before the Immigration and Naturalization Service, Immigration Courts and Executive Office for Immigration Review, and Board of Immigration Appeals. Consciously avoiding and not taking remedial actions against a client’s illegal conduct may well expose the attorney to any or all of these forms of liabilities. No fee justifies the incurrence of criminal or civil fraud liability and suspension/expulsion from the practice of immigration law.

Harry J. Joe is an Equity Shareholder and is the Immigration Law Practice Group Leader at Jenkens & Gilchrist, P.C. in Dallas, Texas. He received his B.A. in 1970 from the University of North Texas and his J.D. in 1975 from Washington University in St. Louis. He is Board Certified in Immigration & Nationality Law by the Texas State Board of Legal Specialization. He is a widely published author in the immigration field and a past contributor to the legal treatise, "Immigration Law and Procedure" published by Mathew Bender & Co., law review and bar journals, and multiple American Immigration Lawyers Association publications. Mr. Joe served as an Adjunct Professor of Law at Southern Methodist University School of Law from 1982-1994. He has been a member of the American Immigration Lawyers Association since 1977 and served as Texas Chapter Chair, AILA, 1979-1980; Member Board of Governors, 1980-1982, 1986-1989; First and Second Vice President, Treasurer, 1982-1986. He has served as member Planning Committee and Faculty, University of Texas School of Law, CLE Annual Symposium on Immigration & Nationality Law, 1980-2001. Mr.Joe has been listed in "Best Lawyers in America" since 1990.