In re Nielson

• Decision Date: 13 July 2022
• Docket Number: A21-0339
• Citation: 977 N.W.2d 599
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Jason Alexander NIELSON, a Minnesota Attorney, Registration No. 0395101
• Court: Minnesota Supreme Court

977 N.W.2d 599

IN RE Petition for DISCIPLINARY ACTION AGAINST Jason Alexander NIELSON, a Minnesota Attorney, Registration No. 0395101

A21-0339

Supreme Court of Minnesota.

Filed: July 13, 2022

Susan M. Humiston, Director, Timothy M. Burke, Sr. Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Jason A. Nielson, Minneapolis, Minnesota, pro se.

OPINION

PER CURIAM.

977 N.W.2d 603

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Jason Alexander Nielson, alleging various acts of professional misconduct. We appointed a referee. After conducting an evidentiary hearing, the referee found that in two client matters, Nielson failed to properly explain the legal issues so that the client could make informed decisions, and that in one matter, he failed to inform the client about the status of her case. The referee further found that in one of these matters, Nielson provided false and misleading information to the client, and in the other matter—working through a paralegal—he also provided false and misleading information to the client. The referee found three aggravating factors and no mitigating factors. Based on these findings and conclusions of professional misconduct, the referee recommended that Nielson be publicly reprimanded, precluded from taking new clients for 45 days, and placed on probation for 1 year.

Nielson challenges the referee's findings and conclusions, argues that the proceedings violated his due process rights, and contends that the recommended discipline is too severe. The Director, in turn, contends that the recommended discipline is too light and asks us to suspend Nielson. We conclude that the referee's findings and conclusions that Nielson committed misconduct are not clearly erroneous and that Nielson's due process rights were not violated. But we also conclude that, considering the facts and circumstances of this case, the referee's recommended discipline is not sufficient to protect the public, protect the legal profession, and deter future misconduct. Instead, the appropriate discipline for Nielson's misconduct is a 30-day suspension, followed by 1 year of probation.

FACTS

Nielson was admitted to practice law in Minnesota in 2013, after having been admitted to practice law in New York in 2005. He is currently a partner at Igbanugo Partners Int'l Law Firm, PLLC ("IP Firm"), having joined the firm as an associate in 2012. His practice has focused almost exclusively on immigration law. The misconduct here arises from two client matters between 2013 and 2015. We address the facts of these matters in turn.

M.D. Matter

M.D. is from Mexico and came to the United States in 1987 as an undocumented immigrant without legal status. Her primary language is Spanish. M.D. has four U.S. citizen daughters; her oldest is A.I.M.

In September 2013, M.D. consulted with H.I., founding partner of the IP Firm, about retaining the firm to adjust her status to become a lawful permanent resident. Nielson was not present for the initial consultation. The meeting resulted in a fee agreement for $9,500. The fee agreement stated that the purposes of the representation were a "Form I-130, Petition for Alien Relative" and "Form I-601A Waiver." This agreement was signed by H.I. on behalf of the IP Firm. A month later, another agreement adjusted the fee to $8,000 based on financial hardship. Nielson was present for the consultation that resulted in the second agreement.

977 N.W.2d 604

What federal immigration law requires is not in dispute. An I-130 Petition for Alien Relative Form is the first step for a foreign national in obtaining legal status in the United States through a Permanent Resident Card (Green Card). A U.S. citizen or lawful permanent resident (petitioner) uses the form to establish a qualifying family relationship with a relative (foreign national). If U.S. Citizenship and Immigration Services (USCIS) approves an I-130 petition, the immigration authorities recognize the relationship, but it does not change the status of the foreign national.¹

An I-601A Application for Provisional Unlawful Presence Waiver is the second step for a foreign national applying for a Green Card who is currently present in the U.S. without status. Immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use the I-601A application to request a provisional waiver of the unlawful presence grounds of inadmissibility under the Immigration and Nationality Act (INA), before departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview, which is the third and final step in applying for a Green Card. Section 212(a)(9)(B) of the INA establishes that foreign nationals who are unlawfully present in the U.S. for more than 180 days or 1 year are inadmissible to be admitted to the U.S. as a permanent resident for 3 years and 10 years respectively. Thus, if a foreign national has been in the U.S. for more than at least 180 days and wishes to obtain permanent residency without waiting the requisite amount of time, they must get a waiver through the I-601A application. The I-601A application asks for a waiver on the basis that it will create substantial hardship to a qualifying relative. This qualifying relative must be a U.S. citizen or lawful permanent resident who is a parent or a spouse of the foreign national.² A child may not be a qualifying

977 N.W.2d 605

relative. During Nielson's representation of M.D., she did not have a qualifying relative for the I-601A application.

Nielson filed the I-130 petition with USCIS in December 2013, establishing that M.D. was an immediate relative of her U.S. citizen daughter, A.I.M. USCIS approved the I-130 on April 30, 2014.

Following that approval, Nielson's paralegal e-mailed M.D.’s daughter on June 5, 2014, telling her that the next step in the process was to submit a I-601A application. The paralegal noted that the I-601A application would

establish the extreme hardships that a U.S. citizen qualifying relative [which could be either a spouse or children under the age of 21 who are not married-in this case your younger siblings Daisy and Crystal ] will go through if your mom is not allowed to remain in the United States.

The statement was incorrect; at the time of the e-mail and presently, a child was not and is not a qualifying relative for the I-601A waiver.

Nielson was copied on the e-mail. He knew the statement that a child could be a qualifying relative was wrong, but he did not immediately contact the client and correct the misstatement. Nielson also admitted he was aware of the e-mail, testifying that the error in the e-mail was discussed at a firm meeting.

On September 2, 2014, M.D. met with Nielson and provided the requested information in support of the I-601A waiver. Nielson and H.I. met with M.D. and A.I.M. on December 23, 2014. In this meeting, M.D. and A.I.M. learned that M.D. could not gain legal status through A.I.M. or any of her other daughters. M.D.’s fee payments were temporarily suspended.

On June 16, 2015, the National Visa Center issued an invoice, in reference to M.D.’s I-130 petition having gone 1 year without action. Nielson sent an e-mail to the National Visa Center on July 2, 2015, advising that M.D. wished to continue with the petition. The National Visa Center responded on July 9, 2015, acknowledging Nielson's e-mail and stating that because more than a year had passed without contact, forms and fees must be resubmitted, including a Form G-28 if an attorney was retained on the case. At some point M.D. retained the services of another law firm, and the IP Firm forwarded her file.

O.C. Matter

The facts surrounding O.C.’s matter largely mirror M.D.’s matter. O.C. was born in Mexico and entered the United States as an undocumented immigrant without legal status. Her primary language is Spanish, and her English proficiency is that of a second-grade level. She has five children; her daughter M.A. is a U.S. citizen and had familiarity with the IP Firm because it had obtained legal status for her husband. Using other counsel, O.C. had previously investigated gaining permanent resident status without success.

O.C. entered into a fee agreement with the IP Firm on August 27, 2013, for $2,500, with the stated purpose of filing a "Form I-130 Relative Petition." This agreement was again signed by H.I. on behalf of the IP Firm. Nielson was not present at the initial meeting. Nielson filed a Form I-130 on behalf of O.C. with USCIS on November 12, 2013, and the form was approved on May 22, 2014.

On June 3, 2014, O.C. and M.A. met with Nielson, H.I., and a non-attorney staff member. The meeting covered "looking into I-601A & consular processing" and that "Father may be" eligible for status

977 N.W.2d 606

based on a different reason.³ At the meeting a second contract for legal services was signed for an additional $6,500, calling for "Consular Processing" and "I-601A."

The next day, June 4, 2014, Nielson sent an e-mail to M.A., O.C.’s daughter, stating, "In the 601A process you are the qualifying relative and your mother is the applicant." (Emphasis added.) Attached to the e-mail was a PDF of the I-601A application for M.A. to fill out, "as much as you can." Nielson told M.A. that she needed to prepare an affidavit "as to why it would be an extreme hardship to not have your mother in the U.S." As in the M.D. matter, the statement that M.A. was the qualifying relative was a clear misstatement of law, as only spouses and parents could be qualifying relatives.

On June 24, 2014, Nielson and a staff person met with O.C. and M.A. to review the I-601A application with them and work on filling in any missing information. Nielson and/or the staff person explained "how the process is anticipated to work." O.C. told Nielson that her 14-year-old daughter suffered from severe depression. O.C. was told to obtain medical documents and a...