Time for Some Strategic Thinking about Debarment of Unethical Immigration Attorneys

By Dan Cadman on March 16, 2018

Law360 (partially behind a paywall) is reporting that the Securities and Exchange Commission (SEC) "imposed a full associational and penny stock bar against attorney Hui Feng and his law firm months after a California federal judge found them liable for defrauding Chinese nationals looking to obtain visas".

That got me to thinking: What happens to Feng and his firm for purposes of representing clients before the Executive Office for Immigration Review (EOIR), the division of the Department of Justice (DOJ) responsible for the immigration courts and appellate reviews? And what happens to Feng and his firm for purposes of representing alien clients seeking benefits — such as EB-5 visas, the source of Feng's current troubles — before U.S. Citizenship and Immigration Services (USCIS), the division with the Department of Homeland Security (DHS) that adjudicates immigration benefits?

While the notoriety associated with Feng may bring on the desired result of cross-disciplinary debarment in his particular case, I doubt that there is any automatic mechanism or electronic system that permits these disparate entities to routinely share debarment information so that when debarment occurs in one forum, it's picked up and concurrently imposed elsewhere.

But where this is not only the appropriate but commonsensical response, as it so self-evidently is in the instant case, why doesn't such a system exist?

I cannot help but wonder how many lawyers or firms of unscrupulous character manage to navigate their way through these cracks in our various bureaucracies, to the deficit of the "clients" they purport to serve, as well as to the deficit of the American public, which needs to be reassured that attorneys representing clientele of any type before government agencies are of unblemished reputation.

Last November, I wrote a blog post about the need for better strategic thinking and less stove-piping among and between the various immigration-related DHS components. In that post, I quoted a DHS plan for "[t]he Office of Strategy, Policy and Plans (PLCY) ... to charter a senior level cross-component Immigration Policy Council … [in order to] provide an institutionalized structure for Department-wide strategic planning related to immigration policy and operations" that was likely to fail because it wasn't high enough in the bureaucratic food chain to make a difference.

It's been several months now, and I find myself pondering whether that policy council has even taken shape, let alone done much of anything. If so, I haven't heard about it.

Here's a suggestion for DHS/PLCY and USCIS: Start humbly. Not all strategic thinking needs to be at the level of rocket science, quantum physics, or string theory.

How about reaching out to DOJ/EOIR (and the SEC where investor visas are concerned) to discuss how to establish a mechanism that systematically ensures that immigration attorneys and law firms engaging in unethical practices are uniformly banned from appearing before any of these entities?

And, equally important, establish a shared database of debarments that is available to all immigration judges and USCIS adjudicators (and, for that matter, trial attorneys for Immigration and Customs Enforcement who prosecute government removal proceedings), so that if/when a member of the private bar files a notice of representation, the name of the lawyer and firm can be checked.