Who is patrolling the border of ethical conduct? The convergence of federal immigration attorneys, benefit fraud, and Model Rule 4.2.

• Author: Barrett, Erin E.

TABLE OF CONTENTS INTRODUCTION I. FEDERAL REGULATION OF MARRIAGE FRAUD A. Guess Who's Coming to Dinner? Home Visits in Cases of Suspected Marriage Fraud II. Model Rule 4.2: Contact with Represented Persons A. Model Rule 4.2's "Authorized by Law" Exception B. Model Rule 4.2's "Actual Knowledge" Requirement III. Government's Violation of Model Rule 4.2 A. OCC's and OGC's Escape Clauses 1. Differentiating Representation by Nonlawyers 2. The Question of Consent IV. RIGHTING THE WRONG: WHAT REMEDY BEST RECTIFIES THE HARM? A. The ABA's Recommended Sanction B. Suppression of Evidence C. Policy as Relevant to the Remedy CONCLUSION: MOVING FORWARD IN INVESTIGATING BENEFIT FRAUD INTRODUCTION

"If they catch a fraud--they are beasts from the pits of hell. You do not want to do this." (1) As demonstrated by this advice from one immigration lawyer to a prospective client considering using a "pretend" marriage to get a green card, (2) federal immigration authorities do not take fraud lightly. Incendiary rhetoric of rampant immigration benefit fraud litters governmental publications and testimony (3) as well as the mainstream media. (4) Without looking at the evidence, people may easily believe that aliens (5) use fraudulent marriages to pilfer green cards left and right, or that finding a bona fide marriage between a U.S. citizen and an immigrant would be tantamount to finding the Holy Grail. However, the evidence shows a much different picture of marriage fraud than the bombast suggests. (6)

Department of Homeland Security (DHS) Secretary Janet Napolitano herself remarked on this dichotomy between the fictional and factual in a Senate hearing, stating that although "there is a perception that marriage fraud is ... rampant, ... most marriages coming before [United States Citizenship and Immigration Services (USCIS)] are bona fide." (7) Statistics corroborate Secretary Napolitano's statement. (8) Marriage fraud and, more generally, immigration benefit fraud are actually quite elusive. (9) For example, take data from 2006: out of the approximately 5 million applications for immigration benefits, denials for fraud constituted less than 3 percent. (10) Further evidence indicates the number of applications denied for marriage fraud actually may be lower than the number of applications denied for fraud generally. (11)

Regardless of the evidence indicating that benefit fraud occurs less often than assumed, the federal government has only increased its emphasis on cracking down on this kind of fraud. (12) However, as resources continue to pour into governmental agencies designed specifically to combat benefit fraud, such as the Fraud Detection and National Security Directorate (FDNS), (13) fraud remains difficult to uncover. (14) This pressure from above to find the fraud, combined with the public's strong interest in illegal immigration, (15) could conceivably incentivize FDNS to cut corners in order to bolster its fraud detection statistics.

One area in which the conduct of FDNS might raise cause for concern is its policy of conducting unannounced visits to the homes of couples applying for marriage-based immigration benefits. (16) The administration uses "dawn bed checks" to catch the applicants unaware, in the hopes of exposing fraudulent couples. (17) In allowing FDNS to capitalize on the element of surprise, however, immigration attorneys who supervise FDNS agents are arguably violating Model Rule of Professional Conduct 4.2. (18) Model Rule 4.2 prohibits attorney, or attorney-supervised, contact with represented persons--here the applicants applying for marriage-based immigration benefits. (19)

This Note seeks to explore whether federal immigration attorneys engage in unethical conduct by permitting government personnel to overreach in their investigation of atypical fraud. First, this Note will examine the structure of the federal government's regulation of marriage fraud, especially in the context of FDNS home visits. Second, this Note will outline Model Rule 4.2 and its applicability to federal immigration lawyers. Then, this Note will discuss the question of whether these attorneys are violating Model Rule 4.2, and, if so, what constitutes the proper remedy for such a violation. The conclusion contends that FDNS attorneys are in violation of Model Rule 4.2 and that the proper remedy for such violations is the suppression of any evidence obtained through these unethical home visits.

This Note is novel in both its argument and conclusion. The lack of scholarship on this particular topic is surprising given the high volume of applications for immigration benefits (20) and the important consequences of a denial. In crafting this Note, the author was able to find only one case with any allusion to the potentially unethical behavior by FDNS and USCIS attorneys. (21) Why immigration practioners have not raised a Model Rule 4.2 defense to evidence obtained through FDNS home visits remains a mystery. (22) The answer to that question--why immigration attorneys do not appeal to this defense more often--likely falls somewhere between the novelty of the argument and the uncertainty of the assumptions underlying this Note's conclusion. (23) But novelty of argument should not be mistaken for incorrectness; this argument is meritorious and should be utilized by immigration attorneys whenever possible. The pressure for federal officials to find fraud continues to mount, but is engaging in unethical conduct the answer?

1. FEDERAL REGULATION OF MARRIAGE FRAUD

   Federal regulation of immigration spans many years and has involved different administrative agencies. From 1903 to 1940, the Department of Labor (DOL) regulated immigration (24) until the Executive branch transferred authority over immigration and naturalization to the Department of Justice (DOJ) in 1940. (25) The DOJ continued to regulate immigration until 2003 when, in response to the September 11, 2001 terrorist attacks, Congress created the Department of Homeland Security (DHS). (26) In creating DHS, Congress amalgamated twenty-two different federal organizations, either in their entirety or in part, in the hopes of creating a "unified, integrated Department." (27) DHS divides its control over immigration and naturalization in a tripartite fashion; the three relevant components are Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and USCIS. (28) USCIS is responsible for adjudicating immigration benefits, including those stemming from an alien's marriage to a U.S. citizen. (29)

   Marriage to a U.S. citizen confers on an alien spouse the ability to file for a green card, entitling the holder to the right to live and work in the United States. (30) The first step for an alien spouse to obtain a green card is for the citizen spouse to file an I-130 Petition for Alien Relative. (31) Under American law, visas for immediate relatives are so favored that the government does not impose numerical limitations on their issuance. (32) Of the different subcategories of "immediate relatives" (33) encompassed by I-130 petitions, spouses are by far the most common. (34) However, an approved I-130 does not in and of itself bestow upon the alien spouse a green card; rather, the approved petition simply establishes the legal and genuine relationship between the citizen and alien necessary for a green card. (35)

   Each year, almost one-third of all immigrants who receive immigration benefits do so by reason of marriage to an American citizen. (36) However, not every marriage to an American citizen provides a carte blanche for alien beneficiaries. Federal agents must deem the marriage bona fide or legitimate for the alien to receive, and also to keep, immigration benefits. (37) Specifically, federal authorities seek to keep at bay "sham marriages"--marriages entered into solely for the purpose of conferring immigration benefits on the alien partner. (38) USCIS can deny any petition if it determines the marriage is fraudulent, and it may review an I-130 petition of a conditional permanent alien resident for up to two years after the petition is granted. (39) Furthermore, even in the case of nonconditional permanent residents, the government may deport the alien if the Attorney General believes the marriage underlying the alien's procurement of a visa is or was fraudulent. (40)

   USCIS was so concerned about marriage fraud, and immigration benefit fraud generally, that in 2004 it created FDNS, which in 2010 was raised to a Directorate. (41) Directorates are generally more powerful "director led departments in charge of multiple divisions." (42) FDNS is charged with "detecting and removing known and suspected fraud from the application process." (43) In an effort to effectuate its mission, FDNS regularly subjects alien petitioners to background checks and other "[administrative inquiries," which include "[t]argeted site visits ... where fraud is suspected." (44)

   1. Guess Who's Coming to Dinner? Home Visits in Cases of Suspected Marriage Fraud

   One area in which FDNS utilizes site or home visits is the marriage fraud context. If the immigration official has doubts after the standard initial I-130 interview in which USCIS questions the couple about their marriage, the official can take subsequent measures including a follow-up "fraud" interview with the applicants or an investigative, surprise home visit. (45) Although FDNS has not published any data on how often it performs home visits, one practitioner estimated that in 90 percent of his cases in which FDNS was involved, FDNS visited either the residence or place of employment listed on the application for benefits. (46) Additionally, in 30 percent of those visits, FDNS conducted an ex parte interview with the represented applicant without counsel present. (47)

   Even though immigration authorities claim that these subsequent investigations are "designed to give couples the benefit of the doubt," in that those...