August 20, 1999
 

In the Matter of:
 

 Legal Services of North Carolina, Inc.
 224 S. Dawson Street
 Raleigh, N.C.  27611

 National Legal and Policy Center
 1309 Vincent Place, Suite 1000
 McLean, VA  22101

 This complaint alleges that Legal Services of North Carolina, Inc. (LSNC), a program funded by Legal Services Corporation (LSC), illegally provided legal assistance to an individual who did not meet the eligibility standards for such assistance as set forth in the LSC Act and regulations.

 Additionally, the legal assistance provided was in direct violation of the eligibility requirements of Public Law 105-277, the current appropriations law for the Legal Services Corporation.

 The individual attorney involved in this case as well as the program have previously been cited by LSC for violations of eligibility requirements for legal assistance found in the LSC Act and regulations.  Indeed, in the September 18, 1998 letter from LSC to LSNC announcing the results of the prior investigation of LSNC, LSC President John McKay explicitly faulted the program for its failure to have appropriate systems Òin place to assure compliance with LSC eligibility criteria.Ó  [see: Exhibit A] The same letter indicated that LSNC had recently reminded programs about the importance of eligibility, as the LSC President reminded the program with his statement, ÒMoreover, as late as December, 1997, LSC reminded programs of the need to document alien eligibility in the case file.Ó

 The factual background to this complaint could hardly be more clear.

 In a letter dated July 20, 1999, Alice Tejada (Bar No. 23909) of the Farmworker Unit of Legal Services of North Carolina wrote to Mr. C. Stan Eury of the North Carolina Growers Association.  [see: Exhibit B]  Ms. Tejada wrote on behalf of Mr. Rafael Villela-Ramos, a Mexican citizen who had wished to be employed as an H-2A worker in North Carolina on the same farm on which he had been employed last year.
The gist of Mr. Villela-RamosÕ complaint was that he claimed the local recruiter in Mexico, Irma de Rojas, told him to bring his passport to her so she could send him to North Carolina.  He asserted that he borrowed money to make the trip and then was not selected to go.  Ms. Tejada then requested Mr. Eury to extend an invitation to her client to return to North Carolina for the current season.

 In a letter to Mr. Eury of North Carolina Growers Association dated July 30, 1999,  Ms. Tejada again inquired as to the situation involving ÒMr. Villelas-RamosÓ (sic). [see: Exhibit C]

 On its face, this matter involves a legal services attorney providing legal assistance to a non-citizen who is not in the United States regarding an incident which occurred in Mexico at a time that the non-citizen was not enrolled in the H-2A program.  Ms. Tejada was one of the three attorneys involved in the illegal trip to Mexico last year, which resulted in a fine of $17,000 being imposed on her program by LSC and the sub-unit of LSNC being forever barred from receiving LSC funds.  Despite the detailed and very careful September 1998 letter from LSC to LSNC identifying many deficiencies in the way LSC handled eligibility issues, LSNC hired Tejada and the other two attorneys from the illegal trip as part of its new Farmworker Unit which replaced the ill-fated sub-unit, Farmworker Legal Services of North Carolina.
 

Apparent Violations of Federal Appropriations Law
 

 A lawyer for a legal services program funded by LSC who provides legal assistance to an alien while that alien is outside the United States for a matter which occurred outside of the United States at a time when that alien was not enrolled in the H-2A temporary agricultural worker program is a lawyer who has violated the provisions of federal appropriations law governing LSC.

 The current appropriations law governing LSC, Public Law 105-277, incorporates by reference the eligibility requirements for the provision of legal assistance to aliens by LSC-funded programs which was set forth in Section 504(a)(11) of Public Law 104-134.  The relevant language is as follows:
 

 Sec. 504

 (a) None of the funds appropriated in this Act to the Legal
  Services Corporation may be used to provide financial
  assistance to any person or entity (which may be referred to
  in this section as ÒrecipientÓ)-
  . . .
  (11) that provides legal assistance for or on behalf of any alien, unless the alien is present in the United States
   and is-
  . . .
  (E) an alien to whom section 305 of the Immigration Reform and Control Act of 1986 (8 U.S.C. 1101 note) applies, but only to the extent that the legal assistance provided is the legal assistance described in such section;

 The problem for anyone arguing that Mr. Villela-Ramos is an eligible client is that he meets none of the criteria for eligibility set forth in the statute which requires that he meet all of the necessary criteria to be eligible for legal assistance.  Put simply: Mr. Villela-Ramos is an alien who is not present in the United States, was not even in the United States when the incident which gave rise to this matter occurred, and was not in the H-2A program during the time of the incident as well as when the assistance was rendered.

 When LSC announced the ÒErlenborn CommissionÓ to grapple with the meaning of the word ÒisÓ in the statutory phrase Òis present in the United StatesÓ in the appropriations language cited above, the Federal Register notice posted by LSC listed three possible interpretations as to when an alien should be present to be eligible.  [see: Federal Register, Vol. 64, No. 32, Thursday, February 18, 1999,  8141]  The first was physical presence in the U.S. when the legal assistance was being rendered, the second was physical presence when the legal representation commenced and the third was physical presence only when the cause of action for which the recipient provides legal assistance occurs.  None of the interpretations fit Mr. Villela-RamosÕ situation.  To make him an eligible client, there needs to be a fourth interpretation: a client is eligible if they hope some day to be physically present in the United States.

 Moreover, an examination of the public record produced by the Erlenborn Commission finds no support by any participant for the view that the law allows legal services attorneys to provide legal assistance to aliens outside the United States for matters which occurred outside the United States.  On its face, such an interpretation would be an absurdity yet Mr. Villela-Ramos was being provided with legal assistance in this case by Ms. Tejada for a matter that indisputably took place in Mexico.

The legal assistance provided to Mr. Villela-Ramos by Legal Services of North Carolina violated LSC regulations as well as federal appropriations law.  The LSC regulation covering restrictions on legal assistance to aliens (45 CFR §1626) closely tracks the statutory language of Section 504(a)(11) of the LSC appropriations act for 1996, Pub. L. 104-134, 110 Stat. 1321 (1996).  The specific regulatory requirements were also flagrantly ignored in this case.

 The relevant regulatory language is found at 45 CFR §1626.11 (H-2 Agricultural workers):
 

  (a) Nonimmigrant agricultural workers admitted under the    provisions of 8 U.S.C. 1101(a)(15)(h)(ii), commonly called  H-2 workers, may be provided legal assistance regarding the matters specified in paragraph (b) of this section.

  (b) The following matters which arise under the provisions of the workerÕs specific employment contract may be the subject of legal assistance by an LSC-funded program:

  (1) wages;

  (2) housing;

  (3) transportation; and

  (4) other employment rights as provided in the workerÕs
   specific contract under which the nonimmigrant worker
   was admitted.

 The LSC regulations at 45 CFR §1626.5 reiterate the appropriations law requirements when they limit eligibility to aliens.  In relevant part, the regulation states:
 

 Section 1626.5  Alien status and eligibility

 Subject to all other eligibility requirements and restrictions of the LSC Act and regulations and other applicable law, a recipient may provide legal assistance to an alien who is present in the United States and one who is within one of the following categories:

 . . .

 (f) An alien meets the requirements of §§1626.10 or 1626.11.

 The client of LSNC was not present in the United States and did not meet the requirements of §§1626.10 or 1626.11, yet this LSC regulation requires both conditions to be met for the client to be eligible for legal assistance.

Additional Apparent Violations

Ms. Tejada and LSNC are repeat violators of LSC regulations and federal law regarding client eligibility. While the information provided thus far is more than adequate to set forth the case regarding the violations in the Villela-Ramos case, additional issues are raised by the recidivism reflected in the fact pattern.

 1. Has LSNC Failed to Properly Document Client Eligibility?

 The September 18, 1998 letter from LSC to LSNC cited previously listed as its second investigatory finding:  Ò2.  FLSNC has failed to document client eligibility in a large percentage of the cases reviewed.Ó

 The finding went on to state that LSC staff took a random sample of 25 open cases and found, ÒAll 25 of these cases failed to have sufficient or any asset information, as is required by LSC regulations.  45 C.F.R. section  1611.6(a)Ó  The report went on to state that 20 of the 25 cases reviewed Òfailed to have adequate proof or documentation to support compliance with non-citizen eligibility rules under 45 C.F.R. Part 1626.Ó

 Given what LSNC knew about the Villela-Ramos case, itÕs hard to imagine that the current open case file on this case is any more in compliance than the 20 randomly selected cases found to be in violation by the LSC investigators on the previous trip.

 The fact that LSNC had responsibility for the prior violations, was sanctioned for those violations and now is repeating the very same violations speaks volumes as to the programÕs lack of good faith in following LSC regulations.

 2. Will LSNC Immediately Close This Case?

 The third finding described in the LSC letter of September 18, 1998 was, ÒFLSNC failed to immediately close cases involving individuals not eligible for legal services.Ó  The letter went to to state that LSC investigators found six cases in which there was an ineligible client, yet the program left the cases open for months.  Incredibly, there was one case in which the case was left open for Òfor several years after the determination of ineligibility.Ó

 Close to a year ago, on September 30, 1998, National Legal and Policy Center filed a complaint against LSNC regarding, inter alia, the representation of ineligible clients by Ms. Tejada and LSNC.  To this day, LSC has not seen fit to render a decision in that complaint nor has Ms. Tejada or LSNC properly handled the questions of ineligibility raised by that complaint.  Given that failure to sanction Ms. Tejada and LSNC for providing legal assistance to ineligible aliens, perhaps Ms. Tejada has concluded that she is free to arbitrarily ignore federal law and LSC regulations.

 3. Do LSNC Case Service Reports Falsely Count Cases for Ineligible Aliens?

 The fourth finding described in the September 18, 1998 letter from LSC to LSNC was, ÒÓFLSNCÕs Case Service Report (CSR) statistics have included ineligible and rejected matters which are not to be included under LSC program policies.Ó  The letter signed by LSC President McKay went on to state that LSC policies require that Òonly cases which have been accepted and eligible for service are to be included in CSR reports.Ó  Additionally, the program was found to have Òsystematically included matters, which were rejected or were ineligible for services, in its reporting of CSR data to LSNC, which in turn prepared a report for LSC.  This systematic practice was confirmed by FLSNCÕs Director.  As a result of this practice, FLSNCÕs CSR data have been overstated.Ó

 Given the recent controversy regarding the misreporting of case totals to Congress and given the ÒsystematicÓ - LSCÕs phrase - inclusion of ineligible cases in the Case Service reports by this program, it would appear that at the minimum LSC should audit the program to determine if that systematic violation of the regulations is continuing with respect to the improper counting of ineligible clients.

 Clearly the public, Congress,  and  other funders of LSNC are entitled to truthful case totals.  The previous systematic abuses coupled with the present violations of ineligibility standards suggest that those systematic abuses continue.  As an interesting side question, LSNC has a dilemma: if it is counting ineligible clients as cases under the Case Service Reports, it is continuing to violate the Case Service Report rules and therefore misleading both LSC and Congress as to its activities.  However, if it is consciously not reporting ineligible clients - such as Villela-Ramos - because it knows that the client is ineligible, then the case is clearly made that its violation of eligibility regulations and federal appropriations laws is knowing and deliberate.

Conclusion

The present case raises many additional questions as to the effectiveness of what LSC described in the September 1998 letter as ÒLSC Action.Ó  This section contained many practical, thoughtful requirements for the program to adhere to in order to avoid further violations of the law.  For example, LSNC was precluded from making a subgrant to delegate authority for its migrant worker program.  There was a further requirement that LSNC involved in the representation of migrant farmworkers Òmust report directly to the Executive Director of LSNC or her delegate.Ó

 The clear intent of the LSC recommendations was to direct a closer, more careful oversight of the staff of the farm worker unit so that the systematic violations of the LSC Act and regulations which had occurred before would not be repeated.

 The fact that the very same lawyer responsible, in part, for prior abuses continues to ignore the law speaks for itself as to how this new oversight policy is not working.  The statement by LSC that LSNCÕs oversight indicates lack of institutional control over the migrant programÓ is as true today as when the LSC President wrote it on September 18, 1998.

 How many times does this scofflaw program have to be caught systematically violating federal law and LSC regulations before its abuse of taxpayer funds is ended permanently?
 

LSC Complaints Page

Legal Services Accountability Project Page

Home Page