Monica Patricia Tenesaca Delgado, et al., Plaintiffs-Appellants,
Bretz & Coven, LLP, et al., Defendants-Respondents.
Plaintiffs appeal from the order of the Supreme Court, New York County (Joan M. Kenney, J.), entered October 17, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint and to disqualify Jarret Kahn as plaintiff's counsel.
Jarret A. Kahn, Elmsford, for appellants.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Barry Jacobs and Shari Sckolnick of counsel), for respondents.
Peter Tom, J.P., Angela M. Mazzarelli, , Rosalyn H. Richter, Sallie Manzanet-Daniels, Darcel D. Clark, JJ.
In this case we determine whether plaintiff has sufficiently alleged that defendants' legal advice concerning the consequences of applying for an adjustment of immigration status constitutes malpractice, and whether she has sufficiently alleged that such misguided advice was the but-for cause of her ultimately being taken into custody and deported.
Plaintiff is a native of Ecuador. On May 5, 1999, she first attempted to enter the United States at Houston International Airport by falsely presenting herself as a returning resident alien, using a visa belonging to her cousin, who has the same surname. Plaintiff was removed and returned to Ecuador, but in December 2000, reentered the United States without inspection by crossing the Mexican border. As an alien previously ordered removed who thereafter entered the United States without permission, plaintiff was deemed "inadmissible" pursuant to Immigration and Nationality Act (INA) § 212(a)(9)(C)(i)(II) (8 USC § 1182[a][C][i][II]), and, by statute, could not apply for readmission until ten years had passed from the date of her last departure from the United States (INA § 212(a)(9)(C)(ii) (8 USC § 1182[a][C][ii]).
On January 8, 2006, plaintiff married a United States citizen, Jarret Kahn. On February 23, 2006, plaintiff retained defendant Bretz & Coven LLP to represent her before the United States Citizenship and Immigration Service (CIS) in order to obtain legal residency in the United States. Plaintiff alleges that defendant Kerry Bretz, a partner at the firm, determined that she could apply for adjustment of status without leaving the United States, based on a Ninth Circuit precedent , Perez-Gonzalez v Ashcroft (379 F.3d 783, 788-789 [9th Cir 2004]).
On July 11, 2006, the firm filed several immigration forms with CIS, including a Form I-485 petition for adjustment of status to lawful permanent resident, Form I-212 for permission to reapply after deportation or removal, and a Form I-130 petition for classification of an alien as an immediate relative of a United States citizen.
On October 26, 2006, plaintiff and her husband appeared with defendants for an interview at CIS, which denied her requests on the I-485 and I-212 forms that same day. CIS found her ineligible for adjustment of her status because she had entered the United States without permission after having been removed. CIS found that plaintiff did not qualify for a waiver of inadmissibility, as set forth in section (a)(9)(C)(ii) because 10 years had not yet passed from the date of her last departure from the United States, and she did not seek permission for readmission before she reentered in December 2000.
Plaintiff was arrested on the same day by immigration authorities, who reinstated her expedited removal order of May 5, 1999. They released her from detention the same day pursuant to an agreement reached with her lawyers, but the reinstatement order remained in effect.
Defendant Matthew L. Guadagno, a partner at Bretz & Coven, orally argued plaintiff's petition before the Second Circuit. The petition for review relied on Perez-Gonzalez, which had already been rejected by seven sister circuits and abrogated by the Bureau of Immigration Appeals (BIA) in Matter of Torres-Garcia (23 I & N Dec 866, 873-876 [BIA 2006]).
On November 7, 2007, the Ninth Circuit overruled Perez-Gonzalez, announcing that it was bound by the BIA's decision in Torres-Garcia (see Gonzalez v Department of Homeland Sec., 508 F.3d 1227, 1242 [9th Cir 2007]).
On January 12, 2008, plaintiff terminated the services of Bretz & Coven and retained her husband, Kahn, as her attorney. On February 7, 2008, the Second Circuit denied plaintiff's petition for review and upheld the reinstatement of the May 5, 1999 deportation order, citing Torres-Garcia and deferring to the BIA's interpretation of immigration statutes (Delgado v Mukasey, 516 F.3d 65, 73 [2d Cir 2008], cert denied555 U.S. 887 , citing Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 ...