State ex rel. Indiana State Bar v. Diaz

• Decision Date: 06 December 2005
• Docket Number: No. 94S00-0312-MS-589.,94S00-0312-MS-589.
• Citation: State ex rel. Indiana State Bar v. Diaz, 838 N.E.2d 433 (Ind. 2005)
• Parties: STATE of Indiana ex rel. INDIANA STATE BAR ASSOCIATION and Attorney General for the State of Indiana, Relators, v. Ludy DIAZ, Respondent.
• Court: Indiana Supreme Court

838 N.E.2d 433

STATE of Indiana ex rel. INDIANA STATE BAR ASSOCIATION and Attorney General for the State of Indiana, Relators, v. Ludy DIAZ, Respondent.

No. 94S00-0312-MS-589.

Supreme Court of Indiana.

December 6, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas R. Ruge, Todd A. Richardson, Suzanne L. Robinson, Stephen Carter, Attorney General of Indiana, Gary Secrest, Deputy Attorney General, Indianapolis, for Relators.

Karl L. Mulvany, Nana Quay-Smith, Indianapolis, for Amicus Curiae.

Patrick F. O'Leary, Goshen, for Respondent.

PER CURIAM.

This is an original action brought by the Indiana State Bar Association and the Attorney General for the State of Indiana (together "Relators") in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24.¹ Relators seek an order enjoining Respondent, Ludovina Emila Diaz ("Diaz"), who does business under the name Ludy Diaz, from the unauthorized practice of law. This Court has original and exclusive jurisdiction over matters involving the unauthorized practice of law. See IND. CONST. art. 7, § 4; Ind.Code § 33-24-1-2(b)(2) (2004). The Court finds Diaz has engaged in acts constituting the unauthorized practice of law and concludes an injunction is appropriate and necessary.

Procedural Background

On December 1, 2003, Relators filed a verified petition to enjoin Diaz from the unauthorized practice of law ("Petition"). The Petition alleged Diaz engages in the unauthorized practice of law by: (a) selecting and completing immigration forms for individuals seeking immigration assistance; (b) advising individuals on immigration matters; (c) giving advice that is legal in nature and exceeds filling in blanks on a legal document; (d) using the title "Notario" or "Notario Publico," which is inherently misleading to Spanish speaking people; and (e) advertising and promoting her services without disclaiming she is not an attorney. The Petition seeks to enjoin Diaz from: (1) selecting immigration forms for individuals seeking immigration assistance; (2) advising individuals on immigration or other legal matters; (3) using the title "Notario" or "Notario Publico;" and (4) advertising, affirmatively self promoting, or calling to public attention her services without disclaiming she: (i) is not an attorney; (ii) cannot tell individuals what immigration forms they need; (iii) cannot tell individuals which immigration benefits they may be eligible for; and (iv) cannot give advice on how to complete an immigration form.

Diaz filed a verified return denying most of the material allegations in the Petition. This Court appointed the Honorable Jenny Pitts Manier, a judge of the St. Joseph Superior Court, as Commissioner to hear the evidence in this case and to provide the Court with detailed findings of fact. Trial was held on September 13, 2004. The Commissioner filed her findings of fact on October 6, 2004. The Court then received briefs from the Relators and Diaz, as well as an amicus curiae brief from the Consulado de Mexico en Indianapolis in support of the Relators.

A Brief Summary Of Immigration Law

Various agencies and players. As of March 1, 2003, the effective date of the Homeland Security Act of 2002, the Immigration and Naturalization Service ("INS") was abolished and its functions were transferred to the Department of Homeland Security. Under the Deputy Secretary of Homeland Security is the Bureau of U.S. Citizenship and Immigration Services ("USCIS"), and under the Undersecretary of Border and Transportation Security are the Bureau of Immigration and Customs Enforcement ("ICE") and the Bureau of Customs and Border Protection. See Richard D. Steel, Steel on Immigration Law, § 2:1 (2d ed.2004) (available at Westlaw database "STEEL").

ICE assumed the enforcement jurisdiction and role of the former United States Customs Service and those functions of the former INS involved in investigations, detention, and removal. See id. § 2:3. The USCIS assumed many of the adjudicatory functions of the former INS, including such matters as visa petitions, applications for adjustment to permanent status, applications for waivers, and applications for asylum. See id. § 2:2.

The Executive Office of Immigration Review is subject to the supervision of the Attorney General and is headed by a director who is responsible for supervising the Board of Immigration Appeals ("BIA") and the Office of the Chief Immigration Judge. See id. § 2:5. The BIA is the appellate body charged with the review of administrative adjudications under the Immigration and Nationality Act (the "Act"). See id. The Chief Immigration Judge is responsible for the supervision of immigration judges, who conduct exclusion and deportation hearings and other proceedings the Attorney General may assign them to conduct. See id. § 2:8.

Aliens seeking to remain in the United States. Among the grounds an alien may assert to remain in the United States are: (1) the alien has a relative who is a citizen or permanent resident of the United States (a "family-based" or "relative" petition), see 8 U.S.C. § 1153(a) (2000); (2) the alien has employment skills needed in the U.S. (an "employment-based" petition), see 8 U.S.C. § 1153(b) (2000 & Supp.2002); and (3) the alien has fled his or her country of citizenship due to the fear of political persecution (a petition for asylum), see 8 U.S.C. § 1158 (2000 & Supp.2002).

In specifying the qualifying relationships for a family-based petition, the Act uses words of otherwise common meaning but which in this context are subject to significant statutory, judicial, and administrative definition and interpretation. See Steel, supra, § 5:1. Most, but not all, relative petitions are filed on a Form I-130. See id. § 5:32.

The availability of visas to persons who qualify as relatives can be limited by several factors, including quotas. See id. § 4:2. When a quota applies, the alien is assigned a priority date, which establishes the person's place in the waiting line. See id. § 4:17. Monitoring one's progress in the line is done through consulting the monthly Visa Bulletin issued by the Department of State. See id. § 4:18. Approval of a relative visa petition does not guarantee the beneficiary will receive permanent resident status. The beneficiary still must apply for permanent residence through the USCIS and show he or she is not inadmissible to the United States. See id. §§ 4:8 & 5:42. Grounds for inadmissibility include convictions of certain crimes, fraud or misrepresentation of fact to obtain admission into the U.S., falsely claiming U.S. citizenship, entering as a stowaway, and having been previously ordered removed. See 8 U.S.C.A. § 1182(a)(2), (6) & (9) (West 1999 & Supp.2005).

"Adjustment of status" is a procedure by which certain aliens physically present in the United States can obtain permanent resident status without leaving the United States. See Steel, supra, § 7:1. Form I-485 is the basic application for adjustment of status. See id. § 7:23. In some cases, an application for adjustment of status may be filed concurrently with a visa petition, but in other cases, as when the applicable quota is not current, the visa petition must be filed first. See id. § 7:24. Some requirements for adjustment of status were temporarily suspended for certain aliens if the underlying qualifying application or petition was filed on or before April 30, 2001. To take advantage of this provision, the alien must submit a Supplement A to the Form I-485 and, with some exceptions, pay a filing fee of $1,000.² See id. §§ 7:9 & 23.

The initial interview of an immigration client and the other parties involved is a crucial stage of the case and ascertaining all relevant facts is essential. Adequate communication must be established, especially if the client does not speak English. It is essential to ensure only true documentation is utilized and to advise the client of the consequences of using fraudulent documentation. Many times a problem arises because a person lied or used false documentation when the truth or true documentation would have been sufficient. See id. § 1:7.

Non-attorney representation. Federal law allows for limited non-attorney practice of immigration law in administrative proceedings. See 8 C.F.R. § 292.1 (2005). To qualify to practice as an "accredited representative," an individual must first be affiliated with an organization recognized by the BIA as a "non-profit religious, charitable, social service, or similar organization" that charges individuals only nominal sums for assistance rendered and has at its disposal adequate knowledge, information, and experience. 8 C.F.R. § 292.2(a) (2005). Second, the organization must petition on behalf of the individual, including in its application detailed information on the individual's "experience and knowledge of immigration and naturalization law and procedure. . . ." 8 C.F.R. § 292.2(d) (2005). If the petition is approved, the individual is legally allowed to practice immigration law before the BIA (also called "the Board") and/or various bureaus ("the Service"). Such practitioners are subject to rules of professional conduct and discipline. See 8 C.F.R. § 292.3 (2005).

The "practice" of immigration law is defined as:

the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with the Service, or any officer of the Service, or the Board.

8 C.F.R. § 1.1(i) (2005).

The practice of immigration law does not include merely helping someone fill in blank spaces on forms for nominal remuneration, as long as the person offering assistance does not hold himself or herself out as qualified in legal matters or in immigration or naturalization procedure. See 8 C.F.R. § 1.1(k) (2005). However, the selection of the proper form is a different matter:

[The] selection by a visa...