Francisco Guzman, Rosaro Ayala, Manuel Flores Dominguez, Nely Olmos Flores, Ernesto Mejia Gonzalez, Oneida Tacuba Mejia, Mario Enrique Munoz, Gregorio Perez Ortega, Patricia Pavia, Rosa Perez, Alicio Ramos, Martin Torres Reyes, S.F.C., D. P.C. v. Hecht
| Decision Date | 22 March 2019 |
| Docket Number | 18cv3947(DLC) |
| Parties | FRANCISCO GUZMAN, ROSARO AYALA, MANUEL FLORES DOMINGUEZ, NELY OLMOS FLORES, ERNESTO MEJIA GONZALEZ, ONEIDA TACUBA MEJIA, MARIO ENRIQUE MUNOZ, GREGORIO PEREZ ORTEGA, PATRICIA PAVIA, ROSA PEREZ, ALICIO RAMOS, MARTIN TORRES REYES, S.F.C., D.P.C., B.R.E., O.C.F., R.M.F., A.M.M., J.M., M.M., A.M.O., E.G.R., F.T.R., R.M.R., J.C.R., F.T.V., and MAKE THE ROAD NEW YORK, Plaintiffs, v. THOMAS T. HECHT & LEONARD H. HECHT, Defendants. |
| Court | U.S. District Court — Southern District of New York |
For the Plaintiffs:
Lindsay Nash
Juan Basadre
Alexis Makrides
Nolberto Zubia
Jaynah Ross-Mendoza
Kathryn O. Greenberg Immigration Justice Clinic
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, New York 10003
Amy S. Taylor
Kendal Nystedt
Jessica Young
Ariel Gould
Make the Road New York
301 Grove Street
Brooklyn, New York 11237
Abena Mainoo
Shannon Daugherty
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
For the Defendants:
Robert J. Anello
Catherine M. Foti
Peter R. Dubrowski
Morvillo Abramowitz Grand Iason & Anello P.C.
565 Fifth Avenue
New York, New York 10017
Defendants Thomas T. Hecht ("Thomas") and Leonard H. Hecht ("Leonard") (collectively, "the Hechts") have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the claims asserted against them in the first amended complaint ("FAC"). For the reasons that follow, that motion is granted in part.
The following facts are drawn from the FAC and are assumed to be true for the purposes of this motion. The Hechts are licensed attorneys who primarily practice in the area of immigration law. Both are affiliated with the firm Thomas T. Hecht, P.C. ("the Hecht Firm"). The Individual Plaintiffs are not citizens of the United States. They are New York residents who sought legal advice from the Hecht Firm with respect to their immigration status. Plaintiff Make the Road New York ("MRNY") is a 501(c)(3) nonprofit organization that provides education and legal services to support low-income New Yorkresidents, including immigrant populations. 26 U.S.C. § 501(c)(3).
The plaintiffs allege, in essence, that the Hechts defrauded the Individual Plaintiffs by misrepresenting the nature of the legal services they would provide and the type of immigration relief that they would seek on the Individual Plaintiffs' behalf. They allege that the Hechts represented to them that they were eligible for affirmative immigration relief based on what the Hechts called the "ten year law," which would allow the Individual Plaintiffs to receive work authorization and/or legal permanent residency based on ten years of residence in the United States and, in some cases, the fact that they had U.S. citizen children. No such affirmative relief exists. In fact, plaintiffs allege, the Hechts filed "boilerplate" asylum applications with the U.S. Citizenship and Immigration Service ("USCIS"), which resulted in the Individual Plaintiffs being placed in removal proceedings. Once in removal proceedings, the Individual Plaintiffs could ask for cancellation of removal pursuant to 8 U.S.C. § 1229b(B), which is a discretionary form of relief. Denial of that application could result in entry of an order of removal.
A brief overview of the structure of our immigration system is helpful to understanding these allegations. USCIS is an agency within the Department of Homeland Security that is taskedwith, among other things, adjudicating affirmative requests for immigration benefits. An individual need not be in adversarial removal proceedings in order to file an application for relief with USCIS. One available avenue of affirmative relief is an application for asylum pursuant to 8 U.S.C. § 1158. To be eligible for asylum, an applicant bears the burden to establish that she is a refugee as defined by 8 U.S.C. § 1101(a)(42)(A), meaning she must demonstrate past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. at § 1158(b)(1)(B)(i); Hong Fei Gao v. Sessions, 891 F.3d 67, 75 (2d Cir. 2018).
Irrespective of immigration status, any alien who is physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival, may apply to USCIS for asylum. 8 U.S.C. § 1158(a)(1). Unless an applicant can demonstrate "the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application," he or she must apply for asylum within one year of entering the United States. Id. at §§ 1158(a)(2)(B), (D). Asylum applicants who are unsuccessful and do not otherwise have lawful status are referred to theExecutive Office for Immigration Review ("EOIR") to be placed in removal proceedings pursuant to 8 C.F.R. § 208.14(c)(1).
EOIR, commonly referred to as "immigration court," is an agency of the Department of Justice. It adjudicates adversarial administrative removal proceedings which are prosecuted for the government by attorneys from Immigration and Customs Enforcement ("ICE"), which is an agency of the Department of Homeland Security. It also includes the Board of Immigration Appeals ("BIA"), which hears appeals from immigration courts nationwide. An alien who is in removal proceedings in EOIR may raise a request for asylum as a defense to removal. Additionally, an alien in removal proceedings may seek cancellation of removal pursuant to 8 U.S.C. § 1229b.
Cancellation of removal is a discretionary remedy, which allows the Attorney General to cancel removal or adjust the status of an inadmissible or deportable alien who (1) has been physically present in the United States for ten years or more, (2) has been a person of good moral character during that period, (3) has not been convicted of certain offenses, and (4) is able to establish that removal would result in "exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Id. at § 1229b(b)(1). Cancellation of removal is a defense to removal.It is not a benefit for which an alien can apply outside of adversarial removal proceedings. Id.
According to the FAC, each of the Individual Plaintiffs are aliens who sought legal advice from the Hechts regarding their immigration status. The Individual Plaintiffs report that, after short interviews, the Hechts or their agents represented that the Individual Plaintiffs were eligible for lawful permanent residency because they had ten years of residence in the United States and/or U.S. citizen children. The Hechts would sometimes refer to this in Spanish as the "ten year law" ("ley de diez años") or "ten year visa." Individual Plaintiffs who subsequently visited the Hechts' office would sometimes note the reason for their visit on the office sign-in sheet as "diez años" ("ten years") or "por tiempo" ("for time"). Defendants then instructed the Individual Plaintiffs to sign several documents, written in English, that they said were necessary to apply for lawful permanent residency.
Each of the Individual Plaintiffs is a native Spanish speaker. All but two of them are alleged to speak, read, and understand "limited" or "very limited" English. The defendants did not translate the documents into Spanish, nor did they explain the contents of the documents. When the Individual Plaintiffs asked questions about their applications, defendants refused to answer and told them to simply trust them becausethey were attorneys. The Hechts charged the Individual Plaintiffs legal fees in installments, generally beginning with an initial payment at the first visit.
Following the initial meetings, the Hechts submitted asylum applications to USCIS on behalf of the Individual Plaintiffs. With one exception, the defendants did not tell the Individual Plaintiffs that they were submitting these asylum applications. Nor did they tell the Individual Plaintiffs that asylum applications could -- and indeed, were intended to -- result in the Individual Plaintiffs being placed in removal proceedings.
In some cases, the Hechts directed the plaintiffs to sign blank or incomplete application forms. Form I-589, which is a standard form for asylum application, requires an individual preparing that form to attest that they prepared the application at the request of the applicant and that it was read to the applicant in a language that the applicant understands. Plaintiffs allege that the Hechts did not ask any questions during their interview to determine whether they might be eligible for asylum.
As explained above, asylum applications normally must be submitted within one year of an alien's arrival in the United States. Each of the asylum applications prepared by the Hechts for the Individual Plaintiffs invoked "changed circumstances" to excuse late filing, without any further detail or explanation.Each application claimed asylum on the basis of membership in a particular social group and harm or mistreatment to United States citizen children if they returned to their home country. The asylum applications prepared by the Hecht Firm were submitted by mail across state lines to USCIS's Vermont Service Center, in St. Albans, Vermont.
In some cases, the Individual Plaintiffs first learned that an asylum application had been submitted on their behalf when they received notices from USCIS acknowledging receipt of their application or scheduling an upcoming asylum interview. In some cases this information came via correspondence from the defendants. Some of the Individual Plaintiffs called or visited the Hecht Firm to ask about notices related to their asylum applications. They were told by individuals at the Hecht Firm that it had submitted asylum applications on their behalf and that this was a "standard" first step to...
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