In re Nwaneri
| Decision Date | 24 August 2022 |
| Docket Number | A21-0547 |
| Citation | 978 N.W.2d 878 |
| Parties | IN RE Petition for DISCIPLINARY ACTION AGAINST Patrick Chinedu NWANERI, a Minnesota Attorney, Registration No. 0322003. |
| Court | Minnesota Supreme Court |
Susan M. Humiston, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, Minnesota, for respondent.
The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against respondent Patrick Chinedu Nwaneri, alleging that Nwaneri had violated the Minnesota Rules of Professional Conduct by (1) submitting a faulty biometrics application for his client and failing to follow up in any way despite the known importance of biometric information to immigration proceedings, (2) failing to prepare for his client's removal hearing or to be ready to proceed on his client's claims for relief from removal, (3) effectively abandoning his client during the removal hearing, and (4) filing a complaint on a separate matter in the United States District Court on the morning of the removal hearing erroneously expecting to get a continuance on the removal matter, despite previous explicit instructions from the immigration court to the contrary.
Following a 2-day hearing, the referee concluded that Nwaneri failed to represent his client competently, expeditiously, and with diligence, and that his conduct prejudiced the administration of justice. The referee further found that Nwaneri's previous discipline, including public discipline, and his substantial experience in immigration matters are aggravating factors. The referee also determined that Nwaneri's client was particularly vulnerable due to his uncertain legal status and potential to be removed from the country. The referee recommended that Nwaneri be suspended for 90 days, followed by 2 years of supervised probation upon reinstatement. We conclude that the referee's recommended discipline is the appropriate discipline.
Nwaneri is an immigration lawyer who was first admitted to practice law in Minnesota in 2002. On June 7, 2017, we suspended Nwaneri for 30 days for filing an untimely brief, making a false statement under oath, and initially lying during the disciplinary investigation. In re Nwaneri , 896 N.W.2d 518 (Minn. 2017). On June 7, 2018, we again suspended Nwaneri for failing to file proof of successful completion of the written examination on the subject of professional responsibility as required by his conditional reinstatement. In re Nwaneri , 912 N.W.2d 882 (Minn. 2018). On July 2, 2018, the Director issued an admonition against Nwaneri for failing to notify a client that he was suspended.
Nwaneri's conduct at issue in this matter predated the conduct that resulted in the prior discipline we imposed on him. The conduct occurred between February 9 and August 22, 2012, while representing his client, F.M., during removal proceedings.
F.M. is from Tanzania. In 2003, he entered the United States on a student visa. Later that year, F.M. married H.J. In 2004, H.J. filed a form I-130 petition—a form filed to establish a person's relationship to an eligible relative; here, as a married couple. An approved I-130 petition allows a foreign national to then apply for lawful permanent resident status—also known as a green card.
F.M. did not register as a student in 2004, which was a requirement for maintaining his student visa status. Later that year, the Department of Homeland Security determined that F.M.’s marriage to H.J. was not bona fide. H.J. soon withdrew her I-130 petition and the two divorced in 2005.
The Department of Homeland Security initiated removal proceedings against F.M. in October 2004. In December 2005, F.M. married his current wife, P.W., with whom he has two children. P.W. filed an I-130 petition to establish her married relationship with F.M. as a step to getting F.M. a green card. The Department of Homeland Security approved P.W.’s I-130 petition.
In 2006, F.M. hired Nwaneri to represent him in his immigration matters. Nwaneri pursued two strategies on behalf of F.M. First, he pursued a petition for adjustment of status (he sought a green card for F.M.) based on the I-130 petition submitted by P.W. The second approach was to petition for asylum, withholding of removal or relief under the Convention Against Torture (collectively, relief from removal).
Nwaneri appeared with F.M. on September 18, 2006, for an immigration court hearing concerning all forms of relief. At the hearing, the immigration court disallowed some of F.M.’s witnesses because Nwaneri failed to file a witness list or testimony summaries as court procedures require. The court granted a continuance until February 26, 2007, however, to allow Nwaneri to correct these problems and to procure documents that he had not yet obtained.
The immigration court granted another continuance on February 26, 2007, because the United States Citizenship and Immigration Service (USCIS) was in the process of revoking their approval of the form I-130 filed by P.W. As the immigration court explained during the removal proceedings, it has no jurisdiction over form I-130 approvals or revocations; it may consider only discretionary claims such as adjustment of status after the petitioner already has the form I-130 approved by USCIS.
The USCIS finalized the revocation of F.M.’s form I-130 on March 12, 2007, determining that F.M. had entered into a previous fraudulent marriage for immigration purposes. Without an approved form I-130, F.M. had no basis for his adjustment of status petition. Consequently, on October 22, 2007, the immigration court pretermitted and denied F.M.’s petition for adjustment of status. The immigration court also denied F.M.’s claims for relief from removal and ordered him removed to Tanzania.
F.M. separately appealed both the USCIS decision to revoke the form I-130 and the immigration court's relief from removal decision. On the appeal of the immigration court's relief from removal decision, the Board of Immigration Appeals (BIA) discovered that the transcripts from that hearing were not properly recorded and remanded F.M.’s relief from removal case to the immigration court to conduct a new hearing and complete the record. That remand hearing, as addressed below, is the primary subject of Nwaneri's misconduct.
As to the other appeal, on June 6, 2011, the BIA affirmed the USCIS's revocation of F.M.’s form I-130—a final administrative decision. Nwaneri erroneously advised F.M. to file an appeal of the BIA's revocation affirmance directly to the Eighth Circuit Court of Appeals, which F.M. did pro se in August 2011. Upon learning that the appeal should have been filed with the United States District Court, F.M. withdrew his appeal and the Eighth Circuit formally dismissed it.
Misconduct in this case
The conduct that forms the basis for the Director's petition for disciplinary action is as follows. In response to the BIA remand order on F.M.’s relief from removal claims, the immigration court held a scheduling hearing on February 9, 2012. The court scheduled a further hearing to address F.M.’s relief from removal claims for August 22, 2012, and F.M. updated his address with the court. The court reminded Nwaneri to follow the court practices manual and repeatedly gave explicit instructions to complete all requirements for the August 22 hearing, including filing a witness list and testimony summaries, obtaining current biometrics (fingerprints) for F.M., and ensuring that F.M.’s passport was current to enable a voluntary departure option.
The immigration court also inquired about any appeal of F.M.’s I-130 revocation. Nwaneri informed the court that the BIA had denied that appeal but that they planned to file a complaint in federal district court. The court then reminded Nwaneri that the BIA's affirmance of the I-130 revocation was a "final administrative decision" and stated that "for my purposes the I-130 issue is over."1 The court also once again explicitly explained that because the I-130 revocation was final, "adjustment [of status] is no longer a viable option at this time." The court instructed: "If you should happen to get different results back from U.S. District Court ... you would need to let the court know that." The court emphasized that "at this time the only relief that we're addressing on August 22 is asylum, withholding, Torture Convention relief, and voluntary departure." When the court directly asked Nwaneri if he understood, Nwaneri acknowledged that he did.
The immigration court then provided Nwaneri with the biometrics instruction sheet and repeatedly stressed the importance of complying with the instructions and following up to ensure current biometrics are obtained, stating: "If you don't comply with this and don't have current records checks for the final hearing, I could deem your application abandoned and dismissed." The biometrics application instructions also state across the bottom: "Important: Failure to complete these actions and to follow any additional instructions that the Immigration Judge has given you could result in delay in deciding your application or in your application being deemed abandoned and dismissed by the court." The court and government counsel stressed to Nwaneri the importance of keeping records of his follow-up attempts and any correspondence he submitted in case any difficulties arose obtaining a biometrics appointment in order to relieve his client of any liability for a failure to obtain current biometrics, because the consequences of appearing without that information were so grave.
Nwaneri submitted F.M.’s biometrics application on February 24, 2012, with F.M.’s outdated and incorrect address. The biometrics instruction sheet specifically directed that the specified USCIS 1-800 number be called if no notice of...
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