Reckless Advice Could Cost Immigration Lawyer

     (CN) – An Ecuadorean family that was separated for a decade can press emotional distress claims against the lawyer who filed an immigration application for which they did not qualify, the Iowa Supreme Court ruled.
     Klever Miranda and Nancy Campoverde illegally immigrated to the United States and were later joined by their children from Ecuador in 1995.
     When Klever Miranda received a notice of removal order in 2005, he and Campoverde hired attorney Michael Said to represent them in the immigration matter.
     Said advised them to file a Form I-601 waiver which permits an unqualified applicant to be admitted into the country based on “extreme hardship” to a qualifying relative. He claimed that this plan had a 99 percent chance of success, but would require the two parents to return to Ecuador pending their son’s citizenship application, which was granted in 2007.
     Though the family filed Said’s instructions, Immigration officials denied their applications and told them they could not to return to the U.S. for 10 years because they left the country voluntarily.
     The family later learned that the I-601 waivers are only available when the qualifying relative is a spouse or parent of the applicant – not a child.
     They then sued Said for malpractice, but the Polk County court dismissed their claim for emotional distress and request for punitive damages.
     On the negligence claim alone, a jury awarded the family $12,500.
     An appellate panel said the emotional distress and punitive damages claims should have gone to the jury as well, and the Iowa Supreme Court affirmed Friday.
     “In this case, Said understood, from the beginning, the emotional component of the relationship,” Judge Mark Cady wrote for the court. “In the memorandum he authored as a part of his services, he specifically expressed his understanding of the emotional distress Klever and Nancy would suffer if the government denied their Form I-601 application. Furthermore, a reasonable jury could conclude that, contemplating this emotionally charged situation, Said told Klever and Nancy they had a ninety-nine percent chance of success when he knew that the relatives listed on the Form I-601 waiver applications were not qualifying relatives within the contemplation of the statute.”
     He added: “The negligent conduct was doomed to directly result in a separation of the family for a decade. In this light, it was the type of relationship in which negligent conduct was especially likely to cause severe emotional distress, supporting a duty of care to protect against such harm.”
     The facts of the case additionally support a possible finding that Said’s conduct was not “merely objectionable,” but “willful and wanton,” which would support a claim for punitive damages, according to the ruling.
     “Given the high stakes of an immigration application, advising clients to engage in a strategy that is meritless (with the singular hope that the official exercises discretion not apparent from the face of the statute), without similarly advising them of the significant risks attending the strategy, can be said to ‘manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or be so obvious the operator should be cognizant of it, especially when the consequences of such actions are such that an injury is a probability rather than a possibility,'” Cady wrote (parentheses in original).

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