Opinion
No. 1:22-cv-06250-NM
2022-11-18
Xiaomei YAN, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE OFFICE OF the GENERAL COUNSEL, United States Citizenship and Immigration Service Attorney General of the USA, and United States Attorney for the Eastern District of New York Office of the United States Attorney, Defendants.
Xiaomei Yan, Flushing, NY, Pro Se.
Xiaomei Yan, Flushing, NY, Pro Se.
Opinion and Order
NINA R. MORRISON, United States District Judge:
Plaintiff Xiaomei Yan seeks a writ of mandamus directing United States Citizenship and Immigration Services ("USCIS") to adjudicate her Form I-589, Application for Asylum and for Withholding of Removal. In her complaint, Plaintiff asserts that she filed her original asylum application with USCIS on October 16, 2015, the receipt of which USCIS acknowledged in writing on that same date. See ECF No. 1. But more than eight years later, Plaintiff alleges, USCIS has taken no action on her application; specifically, she states that the agency has not yet scheduled an initial interview with Plaintiff to determine whether she may have a valid claim for seeking asylum from her native China. Id. Because this eight-year delay far exceeds what Plaintiff asserts is "beyond a reasonable waiting period," see id. at 4, she seeks this Court's mandamus assistance in directing USCIS to schedule such a hearing.
Plaintiff filed her complaint pro se on October 17, 2022, and all named defendants ("the Government") were served on October 24, 2022. See ECF Nos. 1, 10.
On October 27, 2022—in what the Court notes has increasingly become routine practice in this District—this Court issued an Order to Show Cause for the Government to demonstrate by December 27, 2022, why a writ of mandamus should not be issued. See ECF No. 7.
Now pending before this Court is a motion by the Government, filed by letter brief on November 7, 2022, seeking orders from this Court (1) directing that Plaintiff "clarify" whether she is appearing pro se as stated in the complaint, or is in fact represented by counsel (and, if so, that counsel file a Notice of Appearance), and (2) an extension of the time for the Government to file a return to the petition until thirty days after December 27, 2022, or thirty days after Plaintiff's clarifies her representation status, whichever is later. See ECF No. 8.
For the reasons stated below, the Court declines to grant the relief sought by the Government, or to otherwise modify its Order to Show Cause.
BACKGROUND
The Government cites several reasons why it believes Plaintiff may be represented by counsel in this action, notwithstanding the fact that she indicated in the complaint that she is appearing pro se. These reasons include, first, the fact that the Government—as counsel for USCIS in similar mandamus actions filed by other immigrants seeking asylum hearings in this district—has determined that the same contact email address Plaintiff listed on her complaint was also listed by other pro se plaintiffs in thirteen other such actions. The Government adds that none of these other matters appear to be related to Plaintiff's, and further, that each of these complaints appear to have been hand-written by the same (unidentified) person, using the same language for the statement of each claim. See ECF No. 8, at 2 (listing actions). However, the Government acknowledges that each of these fourteen lawsuits lists a different physical mailing address by way of contact information for each pro se plaintiff. Id.
Second, the Government notes that the summons and complaint in Plaintiff's case was served by mail on the same day as two of the above-listed thirteen mandamus actions, with the three cases bearing sequential case numbers and mailed in a single envelope. Id. Third, the Government cites the fact that a copy of this Court's Order to Show Cause was sent to Plaintiff at the physical address listed on her complaint by the Clerk of Court on October 19, 2022, but was returned as undeliverable. Id. at 3.
The Government also notes, in a footnote, that the physical address of 36-09 Main Street in Flushing, New York that Plaintiff listed by way of contact information on her complaint is, according to a Google search, a commercial building, and further notes that the UCSIS notice attached to Plaintiff's complaint issued in 2015 listed an attorney representing plaintiff named Jin Huang, Esq., with an office at that same address. ECF No. 8, at 3 n.3. However, the Government's letter does not mention that a Google search of the property and attorney Huang's name indicates that attorney Huang's offices are now "closed." And there is no indication in the record or in the Government's recent submission that attorney Huang has had any contact with Plaintiff, or otherwise provided her with legal assistance, since 2015.
Based on the foregoing, the Government questions whether Plaintiff is in fact appearing pro se in this matter as stated in her complaint or is instead represented by counsel. Out of "an abundance of caution," the Government concludes, it must refrain from contacting Plaintiff at either the telephone number or email address she listed on her complaint, in order to avoid inadvertently violating ethical rules that bar direct contact with an opposing party who is represented by counsel. See id. at 3 (citing Zhang v. USCIS, No. 22-CV-02411, 2022 WL 2526895, at *1 (E.D.N.Y. June 29, 2022)).
ANALYSIS
After due consideration, and mindful of the fact that several other judges in this District have, in recent months, issued "clarification" orders in other cases upon request of the Government, see ECF No. 8, at 3 (citing cases), this Court concludes that such an order is neither necessary nor warranted in Plaintiff's case. The Court further concludes that the circumstances presented do not provide grounds to extend the Government's original sixty-day time to investigate the merits of Plaintiff's claim and file a return of the petition.
As a preliminary matter, this Court does not dispute that the Government has concluded, in good faith, that (1) Plaintiff may have obtained the assistance of some third party in preparing, filing, and/or serving her complaint, and (2) this same third party has provided such assistance to some, and perhaps all, of the thirteen other plaintiffs listed in the Government's motion who are also seeking to compel hearings on their I-589 asylum applications. Because these pro se petitions all concern the same requested relief (and all are filed on behalf of citizens of China seeking asylum in the United States), and all of them list an identical email address (although not one tied to any known individual, nor to any attorney or law firm), the Government may be correct that the individual to whom this email address is registered is continuing to provide some ongoing assistance to Plaintiff and the thirteen others listed as their case(s) proceed. The Court also does not fault the Government for exercising due caution and alerting this Court before contacting a purportedly pro se plaintiff whom it is concerned may be represented by counsel.
However, in light of the entirety of the record, and given the nature and status of the underlying action, the Court concludes that there are insufficient grounds to warrant what is effectively a court-supervised inquiry into Plaintiff's "representation status." Nor does this record provide cause to delay the Government's response to a mandamus petition filed by a plaintiff who alleges that she has been waiting over eight years for an initial hearing on her asylum request.
This is so for several reasons. Even assuming that a third party provided some advice or assistance to Plaintiff in the preparation, service and/or filing of her complaint, the record in this case provides no indication that this third party is an attorney—much less an attorney who currently represents Plaintiff. This individual may have been a non-lawyer friend, neighbor, aid worker, student, paralegal, fellow congregant, or other community member providing technical assistance to pro se asylum seekers who have limited familiarity with the litigation process, proficiency in English, or both. This Court is unaware of any prohibition, in the Local Civil Rules for the Eastern District of New York or otherwise, against Plaintiff seeking or utilizing such third-party assistance in the process of preparing or filing her complaint, and the Government cites none.
On the other hand, the Government may be correct in its assumption that any assistance Plaintiff received in drafting, filing, and/or serving her summons and complaint was, in fact, provided by an attorney (whether for a fee, or pro bono). But the current record does not provide grounds for this Court to challenge Plaintiff's signed assertion—made when she filed this action less than one month ago—that she is not currently represented by counsel. Cf., e.g., Xiaomin Bian v. USCIS Office of General Counsel, No. 22-CV-4332, 2022 WL 4587742, at *1 (E.D.N.Y. September 29, 2022) (Gonzalez, J.) (noting, in granting Government's application for an order directing purportedly pro se plaintiff to clarify representation status, that the plaintiff's listed email address and telephone number were tied to a specific attorney, who is the managing partner of a law firm in Flushing, New York). It is true, as the Government's letter points out, that Plaintiff's listed email address on her pro se complaint appears to be the same as that listed by thirteen other individuals who have filed similar pro se actions. Notably, however, each of these thirteen plaintiffs provided a different physical mailing address on their complaints, and there is no indication in the record that the email address in question is tied to an attorney or law firm.
Rule 11(a) of the Federal Rules of Civil Procedure requires all parties, including pro se plaintiffs, to provide an address, email address, and telephone number. But not all pro se plaintiffs necessarily have reliable access to, or proficiency with, the use of email, which the Court recognizes could lead some plaintiffs to list a third party's email address for contact purposes.
This distinction is an important one. Any attorney who is currently representing a party in matters pending before this Court must file a Notice of Appearance, so that the court may confirm that all counsel meet the admissions requirements of Local Civil Rule 1.3 and so that the opposing party may communicate directly with counsel. But this Court knows of no statute or rule—and the Government cites none—precluding litigants of limited means from retaining paid or pro bono counsel to assist them in preparing and initiating a civil action, and then proceeding with the litigation pro se.
Indeed, the American Bar Association ("ABA") Committee on Ethics and Professional Responsibility opined fifteen years ago that a lawyer "may provide legal assistance" to a pro se litigant and help a litigant "prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance." ABA Comm. on Ethics & Pro. Resp., Formal Op. 07-446 (2007) (discussing undisclosed legal assistance to pro se litigants). Whether a client must reveal that they received legal assistance turns on whether "the fact of assistance is material to the matter, that is, whether the failure to disclose the fact would constitute fraudulent or otherwise dishonest conduct." Id. But the mere fact that a pro se litigant received legal assistance prior to filing her action is "not material to the merits of the litigation." Id. Nor does that fact give a litigant appearing pro se an "unfair advantage," id., or make it dishonest for a lawyer to provide such undisclosed assistance "as long as the client does not make an affirmative representation, attributable to the attorney, that the pleadings were prepared without an attorney's assistance." In re Fengling Liu, 664 F.3d 367, 371 (2d Cir. 2011) (declining to find that an attorney's "ghostwriting" of petitions constituted sanctionable misconduct, and favorably citing ABA Committee on Ethics and Professional Responsibility Formal Opinion 07-446); see Merchia v. Lamb & Assocs., No. 4:20-cv-40100-IT, 2021 WL 9182922, at *1 (D. Mass. Jan. 7, 2021) (permitting plaintiff to obtain "limited assistance" from an attorney to prepare documents to be filed with a court).
The formal opinion from the ABA Committee on Ethics and Professional Responsibility and these courts' decisions appropriately reflect what several commentators and scholars have recognized as the significant value of limited-representation agreements in ensuring access to justice for persons of limited financial means. See, e.g., Amber Hollister, Limiting the Scope of Representation: Unbundling Legal Services, Or. St. B. Bull., July 2011, at 9 (explaining why "unbundling," or limiting the scope of a lawyer's representation to a discrete task, may provide more affordable services that, in turn, "increase access to justice"); Deborah L. Rhode et al., Access to Justice Through Limited Legal Assistance, 16 Nw. J. Hum Rts. 1, 5, 20 (2018) (arguing same); Beenish Riaz, Envisioning Community Paralegals in the United States: Beginning to Fix the Broken Immigration System, 45 N.Y.U. Rev. L. & Soc. Change 82, 112 (2021) (arguing same in the immigration context).
The relief sought by the Government—an order "direct[ing] plaintiff to clarify her representation status"—may seem relatively modest. But so is the relief Plaintiff seeks: an order compelling USCIS to simply schedule a hearing on her asylum application following an eight-year wait. Thus, after due consideration, this Court concludes that the better course is to decline the Government's request.
Plaintiff filed this action less than one month ago; she made a signed representation at that time that she was not represented by counsel. See ECF No. 1, at 6 (Sec. V.A.). A single piece of unreturned mail at the physical address she listed does not in any way indicate that she has abandoned her claims. It certainly does not suggest that she will not readily appear at her asylum hearing if her writ of mandamus is granted or the Government voluntarily schedule such a hearing. While "all parties, including pro se litigants, have an obligation to provide updated contact information to the court," see Duan v. U.S. Citizenship & Immigr. Servs., No. 22-CV-1538 (HG), 2022 WL 1793216 (E.D.N.Y. June 1, 2022) (citation omitted), it is premature to conclude that Plaintiff has failed to honor that obligation.
Ultimately, this Court is loath to enter an order that implicitly challenges Plaintiff's signed representation that she is currently pro se or that suggests that there was anything inherently improper about her seeking legal assistance in the preparation and filing of her complaint (if, in fact, she did so). This is particularly so because the Government can easily moot any concerns it may have about Rule 11(a) contact information requirements or its own ability to contact a Plaintiff of "uncertain" representation status in a case like this one (the purpose of which would be, presumably, to discuss settlement of the action) merely by scheduling the hearing she seeks. See, e.g., Chang v. U.S. Citizenship & Immigr. Svcs. Off. of the Gen. Couns., No. 1:22-cv-04341-LDH (E.D.N.Y. Oct. 27, 2022) (ordering plaintiff to show why his complaint was not moot after defendant issued a notice of interview for an I-589 application).
Because this Court declines to enter an order directing Plaintiff to "clarify" or otherwise supplement her pro se complaint at this time, there is no cause to grant the Government's request for an extension of time to file its response. The Government has not shown that any ambiguity in Plaintiff's pro se status in any way compromises its ability to promptly investigate and respond to the merits of her petition. And given that the Government has not disputed Plaintiff's allegations—which appear to be supported by documentary evidence appended to her complaint—that she has waited over eight years for an initial I-589 hearing, further delay in adjudicating the merits of this matter does not appear to serve the interests of justice.
CONCLUSION
Accordingly, for the foregoing reasons, the Government's motion for this Court to "direct Plaintiff to clarify her representation status" is denied.
The Government's motion to extend time to file its return to the petition is also denied. The Government shall file a return to the petition as previously directed, on or before December 27, 2022. The Court further authorizes and directs the Government to serve Plaintiff with an additional courtesy copy of the Government's return and any other filings in this matter by transmitting electronic copies of same to the email address listed on Plaintiff's complaint.
The Clerk of Court is respectfully directed to further send a copy of this Order, along with a copy of the Government's November 7, 2022, motion, to Plaintiff by mail and to the email address previously provided by Plaintiff.
SO ORDERED.