Unconstitutional for DOJ to Require Legal-Aid Non-Profit to Formally Represent Clients

Northwest Immigrant Rights Project (“NWIRP”) is a non-profit that provides free and low-cost legal services to immigrants. They went toe-to-toe with the Department of Justice earlier this year over a somewhat-nuanced, but important procedural rule that affected NWIRP’s work. A lawsuit ensued, NWIRP invoked the First Amendment, and prevailed.

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NWIRP helps immigrants in a couple different ways. They can formally represent immigrants in legal proceedings, and they often do. But sometimes, they simply provide legal assistance to immigrants who represent themselves pro se (without formal legal representation). For example, the latter might take the form of helping them fill out standard legal paperwork or government forms and file those with the appropriate agency. In those papers, the immigrant makes clear: “I got some help, but I represent myself.”

Earlier this year, the DOJ sent a cease-and-desist letter to NWIRP, invoking a federal regulation that requires an attorney who “engages in practice or preparation” in connection with an immigration case to file an Entry of Appearance, meaning that the lawyer formally represents the immigrant in the case. So, under the regulation, an NWIRP lawyer cannot merely help immigrants file their own pro se paperwork–the lawyer must formally represent the immigrant throughout the entire process. (As we understand it, the regulation is basically an all-or-nothing requirement.)

NWIRP–not happy with the letter–sued, arguing that the regulation violates their First Amendment rights as lawyers because it prevents them from providing aid to immigrants who represent themselves. The result would be hundreds (maybe even thousands) of immigrants unable to obtain legal assistance. (The Supreme Court ruled in 1978 that a non-profit’s pro bono representation of clients is protected First Amendment activity.) The government, in response, argued that the regulation was necessary so that it could keep track of the lawyers representing immigrants and ensure that lawyers provide immigrants high-quality legal services.

The court did not find the government’s arguments persuasive. It ruled for NWIRP, held the regulation unconstitutional, and prohibited the DOJ from enforcing the regulation. The court held that the regulation chills the ability of a “vulnerable population” to access the courts, and that the DOJ can only regulate here “with narrow specificity,” which it was not. The court’s opinion took the DOJ to task: “The effect of the Regulation as interpreted by the Government will be the inevitable chipping away at attorneys’ fundamental rights. . . . [DOJ] is blindly seeking to impose its rules and regulations and spin precedent in a manner inconsistent with fairness.”

It’s unclear whether the DOJ will appeal this ruling. We’ll see.

Case: Northwest Immigrant Rights Project v. Sessions, No. 17-716 (W.D. Wash. July 27, 2017) (opinion here)

 

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