Friday, December 28, 2012

ICE announces end of 287(g) agreements: death-knell to SB 1070?

On December 21, 2012, ICE issued the following press announcement:

"ICE has also decided not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program. ICE has concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases."

This announcement could herald a concluding chapter to the Arizona/Federal SB 1070 saga and copycat legislative attempts by other states to take state enforcement actions against undocumented persons independently of the federal authorities. As noted in an earlier blog post, the United States Court of Appeals for the Ninth Circuit in Melendres v Arpaio, affirmed a preliminary injunction against Phoenix Arizona's sheriff Joe Arpaio brought to protect the constitutional rights of "racially profiled"... "Latinos detained pursuant crime-suppression sweeps in response to racially charged citizen requests."

The Melendres Ninth Circuit Court noted that in 2009, "ICE modified its agreement with the Defendants such that the Defendants’ deputies no longer had Act section 287(g) authority to enforce civil immigration laws except in jails." Based upon the revocation of the federal authority, the Ninth Circuit found the state law defendants had no power under federal or state immigration law to conduct “crime suppression sweeps,” also known as “saturation patrols,” targeting Latino individuals under the task force type of model. The Court stated that "without more, the Fourth Amendment does not permit a stop or detention based solely on unlawful presence" ...."Absent suspicion that a 'suspect is engaged in, or is about to engage in, criminal activity,' law enforcement may not stop or detain an individual." Melendres, id. at 15-16.

Without renewed 287(g) agreements, in the Ninth Circuit, state law enforcement officials will lack any theoretical basis legally to enforce civil immigration laws either in the field or  the jails, under the reasoning of Melendres v Arpaio, notwithstanding state enabling legislation such as SB 1070 section 2B.

Significantly, by relying instead on Secure Communities, which involves only federal agencies, the ICE director has conceivably signaled an end to any state immigration law enforcement efforts conducted  independently of the federal government.

Wednesday, December 26, 2012

Document preparation in Arizona in the wake of USA v. Arizona

Arizona law prohibits any person to render a service for compensation that constitutes the unauthorized practice of immigration and nationality law, see A.R.S. 12-2703, but since 2003, the Arizona Supreme Court has certified non-lawyers as document preparers. They are not allowed to give legal advice but are permitted, for compensation, to fill out forms and prepare many kinds of legal documents for persons who are not represented by a lawyer. Certified legal document preparers do not require lawyer training or supervision. Most of the forms and documents concern areas of state substantive law, with no federal component. Although Arizona Supreme Court Rule 31 and administrative orders 7-201 and 7-208 which established the program, do not explicitly state that  document preparers are allowed to fill out applications for immigration and nationality benefits, the Certification and Licensing Division and the Board of Legal Document Preparers have interpreted the Rule and orders as though they do. Certified document preparers regularly advertise and offer immigration services to non-lawyers, in competition with lawyer-provided services and without necessarily meeting the federal requirements set forth by the Code of Federal Regulations..

This interpretation of the Arizona Supreme Court rule and orders conflicts with a detailed and comprehensive set of federal regulations that govern non-lawyer representatives who prepare forms and file paperwork in immigration cases before federal immigration officers and immigration judges. Under a recent U.S. Supreme Court decision, USA v. Arizona (slip opinion), federal immigration rules pre-empt state ones where an intent to pre-empt can be discerned from a pervasive federal regulation or there exists a conflict between state and federal law (id. at p.7- 8), either of which can render the state enactment unconstitutional in the area of immigration. The Arizona rules, to the extent that they permit non-lawyer document preparers to prepare immigration and nationality documentation for submission to the federal immigration authorities, have been pre-empted by the federal constitution.

The authority for document preparers to be certified as legal document preparers is Rule 31. It provides in Rule 31, (b) Authority to Practice:
“Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar.”
Section (d) lists exemptions to the rule in section (b) and at subsection (d) 24 states in relevant part:
“24. Nothing in these rules shall prohibit a certified legal document preparer from performing services in compliance with Arizona Code of Judicial  Administration, Part 7,  Chapter 2, Section 7-208 .”

Immigration and nationality documents should not be prepared or filed by a certified legal document preparer under the authority of  Rule 31 because in the area of immigration and nationality document preparation, the Rule and administrative orders are pre-empted under the federal constitution by federal regulations concerning accredited non-lawyer document preparer representatives, as set forth in the U.S. Code of Federal Regulation, 8 C.F.R §§ 292.1, 292.2; see 8 C.F.R. §1.1(i),(j),(k) and (m).

Historically, document preparers have been referred to as "notarios", a Spanish word for "notary". In certain countries that follow Napoleonic codes, such notaries are often permitted to determine the legal validity and suitability of the documents that they verify, a role that common law notaries have been denied consistently in the U.S., except  for Louisiana, where vestiges of Napoleonic law can be found. In some civil law countries such as Mexico and Italy, obtaining a license as a lawyer and practicing for a number of years may be a prerequisite to becoming a civil law notary.  Certified legal document preparers are an Arizona exception to the common law rule, by allowing a special class of non-lawyers to act in a role very similar to civil law notaries, except that certified document preparers who act as common law notaries in Arizona must also qualify independently as such.

Under federal immigration regulations, persons who are not lawyers generally must be certified by the federal Board of Immigration Appeals, which is an appellate administrative court located in the U.S. Department of Justice. Its principal function is to decide appeals from decisions of immigration judges and denials of immigration benefits by the Department of Homeland Security immigration officers.

Unlike Arizona certified legal document preparers, persons who are authorized federally to file papers for others in immigration matters include two categories:
1) federally accredited representatives, who must be nominated by federally approved non-profit religious, charitable, social service, or similar organizations established in the United States that only charge nominal fees for their services; and
2) other reputable individuals of good moral character, provided that they appear:
(i) on an individual case basis, at the request of a person entitled to representation;
(ii) file a written declaration that the appearance is without direct or indirect renumeration;
(iii) unless waived as a matter of administrative discretion, show a pre-existing relationship or connection with the person entitled to representation exists (e.g., as a relative, neighbor, clergyman, business associate or personal friend); and
(iv) without otherwise regularly engaging in immigration and naturalization practice or preparation, or holding himself or herself out to the public as qualified to do so. See 8 C.F.R §§ 292.1, 292.2; see 8 C.F.R. §1.1(i),(j),(k) and (m) for definitions of terms "practice", "representative", and "preparation".

Although both state and federal authorities provide for entity certification, the contours are very different. Only designated representatives of federally accredited organizations can prepare documents for presentation to federal immigration authorities, 8 C.F.R  § 292.2, in the state system, Business Entity Certification is required for all business entities that offer legal document preparation services, ACJA § 7-208(E)(3)(d), but in addition, preparers can work independently of a business entity with individual certification , ACJA § 7-208(E)(2)-(3)(d)(3) , and trainees can work under the supervision of a designated principal. ACJA § 7-208(D)(5). Federal accreditation must be renewed every three years, 8 C.F.R  § 292.2; by Arizona rules governing certification ACJA § 7-201(G); 7-208(G)(1), “All standard certifications expire at midnight, on June 30th of each odd numbered year”. The federal regulation of accredited representative defines clear procedures for investigation and revocation of organizational credentials 8 C.F.R  § 292.2(d); the state certification program also has other rules for filing of complaints and their disposition before the Board of Legal Document Preparers ACJA § 7-201(H), § 7-208(H); but while there are areas of similarity, the state system differs significantly from the federal one and conflicts with it.

Significantly, Arizona certified immigration and nationality document preparers are not required also to be accredited by the federal authorities. There is no analogue to the federal regulation of state law enforcement officers discussed in U.S. v. Arizona, supra,  that could justify operating the Certified Legal Document preparer program even under the aegis and direction of the federal Board of Immigration Appeals to facilitate training and regulation of state certified document preparers as federally accredited deputies.

Under Arizona state law, any individual who appeared in an immigration proceeding as a relative, friend, neighbor, clergyman, business associate or personal friend who was not also a certified document preparer or a trainee of one could be disciplined for violation of the Arizona Supreme Court rules prohibiting the practice of law without a license. Rule 31(b), unless otherwise exempted under Rule 31 (d). However, such individuals are specifically authorized by federal regulations to provide such services in the administrative discretion of the immigration official, notwithstanding a lack of state certification. 8 C.F.R  § 292.1(a)(3).


Under U.S. Supreme Court precedent, immigration certification for document preparers under Arizona Supreme Court rules should be discontinued as pre-empted legally under the U.S. Constitution.

There are important policy considerations as well for ending immigration and naturalization as a permitted area of certification for non-lawyer document preparers under Arizona law. Although the Arizona court rule and administrative orders prohibit document preparers from dispensing legal advice, in the immigration context, it is rarely, if ever, possible to separate out selection of the proper immigration forms from the provision of immigration and nationality legal advice. Most commonly, multiple forms must be prepared, each one required by an aspect of procedure that in turn itself requires knowledge of the substantive immigration and nationality law. For example, to adjust an immediate relative of a U.S. citizen to the status of a permanent resident from within the U.S., the standard of care applicable to lawyers can require as many as 10 separate forms with attachments often exceeding fifty pages. One of the optional forms is the I-131. It allows a foreign national applicant to obtain a document for travel abroad during the pendency of the adjustment proceeding, but if the foreign national has ever accrued unlawful presence, including residence or work for more than six months without permission in the U.S., the act of travel abroad may result in a bar for a period of three years before returning to the U.S., unless a waiver, which requires submission of a different form or forms, is requested and obtained. (If the time period of unlawful presence is one year or more, the period of the bar is ten years.) Because the person cannot re-enter the U.S. without a waiver during period of the bar, an adjustment petition will most likely be denied in such circumstances and the permanent residency case lost. Deciding whether to file an I-131 document or a waiver document requires an in-depth understanding of federal immigration law and the act of selecting the appropriate form of group of forms involves legal advice beyond simple filling in the blanks of a form or providing a common law notarization (see 8 C.F.R. §1.1 (m)). This example is one among many; often multiple immigration forms must be considered, with supporting documentation and analysis, some involving multiple agencies, and the desirability of using each must be judged in the multi-faceted context of each immigration case. See http://www.uscis.gov/forms for a collection of forms commonly used to seek immigration and nationality benefits from the Department of Homeland Security. Where a person applies for a visa from abroad, additional forms should be submitted to the Department of State. See http://travel.state.gov/visa/immigrants/types/types_1326.html (immigrant visas), and http://travel.state.gov/visa/temp/types/types_1286.html. (non-immigrant visas). For employment visas, the U.S. Department of Labor likely will also have jurisdiction. It has its own separate forms that must also be completed and submitted.

Selection of proper immigration forms requires the training and skills of an immigration lawyer. Immigration forms practice is not a perfunctory function. Allowing a document preparer to select immigration forms implicitly forces a preparer to practice immigration law, which is forbidden by state law, see A.R.S. 12-2703, and notwithstanding the prohibition against law practice by document preparers as stated in the Arizona Supreme Court rule and administrative orders. See also Note, "Unauthorized Practice of Law," Journal of the Legal Profession, University of Alabama, vol. 12, art. 10 pp. 154-156.

Arizona document preparers are typically certified on the basis of a 100-question, multiple question test  involving mostly property, divorce, and other areas of state law apart from federal immigration and nationality law, see  the 85-page study guide at http://www.azcourts.gov/Portals/26/LDP/Docs/LDPExamStudyGuideJanuary2007.pdf. (The sample questions given at pages 4-5 do not include one dealing with immigration and nationality law). Rarely are more than a few questions in a test devoted to immigration forms practice. Such perfunctory testing is woefully inadequate for the complex subject of immigration and nationality law. Certification of document preparers in Arizona by the Arizona Supreme Court for immigration and nationality matters should cease at once. It is both unconstitutional as an impermissible encroachment upon federal immigration and nationality regulations and is suboptimal administrative policy.