JOINT MOTION TO REOPEN DEPORTATION PROCEEDINGS TO PURSUE NACARA

I. INTRODUCTION

COMES NOW, Respondent, [REDACTED], by and through her undersigned counsel of record, Heather R. Todd, Esq., and files this “Joint Motion to Reopen Deportation Proceedings to Pursue NACARA” pursuant to 8 C.F.R. §1003.43. Respondent, joined by Immigration and Customs Enforcement, requests that these proceedings be reopened so that she can apply for suspension of deportation pursuant to section 203 of the Nicaraguan Adjustment and Central American Relief Act. In support of her motion, Respondent, through counsel, submits as follows:

II. FACTS AND PROCEDURAL HISTORY

Respondent is within the class of persons who may apply for suspension of deportation, as provided by NACARA, since she falls within one of the classes of aliens described in section 203 of NACARA, 8 C.F.R. § 240.61(a)(4), namely, that she was, and still is, the spouse of an individual described in 8 C.F.R. § 240.61(a)(2) at the time a decision was made to suspend the deportation or cancel the removal of that individual. Respondent is married to [REDACTED], a native and citizen of Guatemala who filed an application for asylum prior to April 1, 1990. Respondent and her husband were married over thirty years ago. (Exhibit A4, Marriage Certificate). [REDACTED] secured lawful permanent resident status through NACARA in 2006. (Exhibit A3, I-551 of Respondent’s husband). As such, Respondent is eligible to apply for suspension of deportation as provided by NACARA pursuant to 8 C.F.R. § 240.61(a)(4).[1]

Respondent is prima facie eligible for suspension of deportation because she has been continuously present in the U.S. for at least seven years, is a person of good moral character, and she would suffer extreme hardship if forced to return to Guatemala. Furthermore, Respondent has not been convicted of an aggravated felony and merits a favorable exercise of discretion. Respondent hereby attaches a copy of Form I-881, Application for Suspension of Deportation pursuant to NACARA with supporting documentation, to this motion to reopen. 8 C.F.R. § 240.63(b). (Exhibit D, Copy of Respondent’s Proposed Form I-881 with Supporting Documents).

Respondent entered the United States on or about 1994. She filed an application for asylum in 1995. (Exhibit B1, Application for asylum). Her application for asylum was referred to the Immigration Court and an Order to Show Cause was issued on April 18, 1996. (Exhibit B2, Order to Show Cause). She appeared for her hearing in December 1996 and was granted voluntary departure by the immigration judge in the Atlanta Immigration Court. (Exhibit B3, Order of the Immigration Judge). On September 11, 1998, Respondent timely filed a pro se NACARA special rule motion to reopen. (Exhibit B4, NACARA motion to reopen). The Motion to Reopen was apparently granted because a Notice of Hearing was generated, ordering Respondent to appear for a Master Calendar Hearing on February 16, 2000. (Exhibit B5, Notice of Hearing).

On February 16, 2000, another Notice of Hearing was issued, continuing the case until March 22, 2000. The notice indicates that Respondent was represented by counsel [REDACTED] and notes that Respondent’s “physical appearance excused” as long as “counsel is present.” (Exhibit B5, Notice of Hearing). Years later, Respondent hired present counsel and filed a Motion to Recalendar proceedings. In an unsigned decision, the Immigration Judge denied the Motion to Recalendar proceedings, stating that the previously filed NACARA Motion to Reopen had been withdrawn by former counsel and that the grant of voluntary departure from 1996 “remained in full force and effect.” (Exhibit B6, Decision of the Immigration Judge). Subsequently, Respondent’s husband filed Form I-130 on her behalf and that petition was approved on July 25, 2012. (Exhibit B7, Form I-130 Approval notice).

Respondent has not departed from the United States since her initial entry nearly thirty years ago, in 1994. Since her arrival in the United States, she has established a life in this country, marrying her Lawful Permanent Resident husband and raising the couple’s four children, three of whom are native-born U.S. citizens.

III. STATEMENT OF JURISDICTION

This Court has jurisdiction over this motion to reopen. 8 C.F.R. §1003.23(b). [2] By this motion, Respondent ultimately seeks relief based on circumstances that have arisen subsequent to the hearing, namely, her eligibility to apply for relief under NACARA. 8 C.F.R. §1003.23(b)(3). The Office of Chief Counsel, Immigration and Customs Enforcement, joins in this motion to reopen. As a joint motion this filing is not subject to the general time or numeric limitations concerning motions to reopen. 8 C.F.R. §1003.23(b)(4)(iv).[3]

Even if this motion were not jointly filed, this Court has authority to reopen proceedings considering the sympathetic humanitarian factors. These factors, discussed in detail below, merit the exercise of this Court’s authority to sua sponte reopen the proceedings. The regulation states that “An Immigration Judge may…at any time…reopen or reconsider any case in which he or she has made a decision…” 8 C.F.R. § 1003.23(b)(1), emphasis added. There is no indication that the Court’s broad sua sponte authority is limited to cases in compliance with the general time and numeric limitations.

IV. [REDACTED] MERITS A FAVORABLE

EXERCISE OF DISCRETION TO REOPEN

DEPORTATION PROCEEDINGS

Respondent merits the reopening of her case in the exercise of this Court’s discretion. A balancing of the equities in this matter demonstrates that she is a strong candidate for favorable consideration of this motion. There are many positive and humanitarian factors that weigh in her favor.

A. IT WAS LEGAL ERROR FOR THE IMMIGRATION JUDGE TO DENY RESPONDENT'S MOTION TO RECALENDAR

The decision denying Respondent’s motion to recalendar deportation proceedings was legal error for several reasons. First, once a Motion to Reopen is granted, proceedings are open and the case must proceed to some form of conclusion. There is no mechanism by which an approved Motion to Reopen may be “withdrawn” as the Judge’s decision describes. To allow this would essentially permit re-closing proceedings without any formalized process. To complicate matters further, Respondent herself was not physically present at the reopened proceedings, as the Notice of Hearing required only that Respondent’s counsel appear. (Exhibit B5, Notice of Hearing indicating that Respondent was not required to be physically present). The proceedings were somehow “re-closed” in her absence.

Second, voluntary departure cannot “remain in full force and effect” as ordered by the Immigration Judge. (Exhibit B6, Unsigned order of the Immigration Judge). Upon granting a motion to reopen, there is no longer a final or underlying decision that may be reviewed or reinstated. Although in his denial of the motion to recalendar the Immigration Judge wrote that the original voluntary departure granted years earlier was again in effect after the withdrawal of the motion to reopen, there was simply no previous order to reinstate. The approved motion to reopen had eliminated and disposed of the previous order. To be legally valid and in effect, there had to have been a new grant of voluntary departure ordered during the reopened proceedings that post-dated the reopening. It was statutorily required that the Immigration Judge enter another order. An Immigration Judge has no authority to reinstate a previous decision that has already been eliminated or rescinded.

Third, Respondent is not subject to the consequences of failing to depart the United States following a grant of voluntary departure. As an individual in deportation proceedings, Respondent was granted voluntary departure under INA §242B(e)(2)(B). The Board of Immigration Appeals has concluded that consequences for failure to timely depart do not apply in cases where an individual was either physically unable to depart or, as here, where the individual was unaware of the voluntary departure order. Matter of Zmijewska, 24 I&N Dec. 87, 92-93 (BIA 2007). In the present case, even if the Immigration Judge had properly re-ordered voluntary departure, Respondent did not appear at her hearing pursuant to the Court’s permission. (Exhibit B5, Notice of hearing, excusing Respondent from physical appearance). As such, there is no evidence either that she knew that voluntary departure was being re-ordered or that she received any of the required warnings of the consequences of failing to depart.

In summary, the Immigration Judge’s decision was legal error for three reasons. First, there is no mechanism to “withdraw” a motion to reopen after it has already been granted. The case must proceed to some conclusion. Second, the Immigration Judge could not reinstate the previous grant of voluntary departure because that order had been rescinded and eliminated when the motion to reopen was granted. There was no longer a previous order to reinstate. Third, even if the Immigration Judge did have the authority to reinstate the previous order, the respondent is not subject to the consequences for failure to timely depart because the order was entered in her absence, pursuant to the Immigration Judge’s permission, and as such, there is no evidence she wither knew of the order or was informed of the consequences of failure to depart which would render such an order invalid.

B. RESPONDENT’S REMOVAL WOULD CAUSE EXCEPTIONAL

HARDSHIP TO HER LAWFUL PERMANENT RESIDENT

SPOUSE

Respondent’s Lawful Permanent resident husband, [REDACTED], will suffer hardship if this motion is denied and she is forced to return to Guatemala. Like the respondent, [REDACTED] has been living in the United States for over thirty years after fleeing violence and persecution in Guatemala. He obtained lawful permanent resident status in 2006 through NACARA. (Exhibit A3, I-551 of Respondent’s husband). He hopes to apply for U.S. citizenship in the near future.

Respondent and her husband have known each other for over thirty years. They were married in their hometown in 1990, nearly thirty-three years ago (Exhibit A4, Marriage certificate) and are the proud parents of four children, three of whom are native-born U.S. citizens (Exhibit A5, Birth certificates). Their oldest daughter has been granted Deferred Action for Childhood Arrivals (DACA). (Exhibits A6-A7, Birth certificate and Form I-821D approval notice).

The economic impact of Respondent’s deportation from the United States would be as devastating to her family as the emotional damage. Respondent’s husband has spent the past two and a half decades building a life and future for himself and his family. He works as a manual laborer where he earns approximately $1600 per month. (Exhibit C5, Proof of family income and expenses). The respondent keeps the family home running smoothly, helps manage household finances and spends her energy caring for the couple’s four children. Her contributions to the home and care for the family are crucial, as it is her support that allows her husband to maintain steady employment. The respondent does work outside the home, too, at [REDACTED] (Exhibit D, Employer letter attached to Form I-881). She earns approximately $960.00 per month operating a sewing machine. Her income, although modest, helps to keep the family afloat. (Exhibit C5, Proof of family income and expenses)

Together, Respondent and her husband earn just enough to maintain a simple life where most of their needs are met. Together, they earn approximately $2560 per month for their family of six. (Exhibit C5, Proof of family income and expenses). However, should this motion be denied, and Respondent forced to return to Guatemala, her husband would be unable to pay for the family’s current expenses, let alone the ongoing childcare that would be needed without the respondent. A forced separation would leave him with no choice but to leave his long-term employment to care for the children, thus depriving the family of their primary source of income. (Exhibit C2, Affidavit of Respondent’s husband). As the evidence of family expenses attached to this motion demonstrate, both the respondent’s income and that of her husband is vital to maintaining the family and caring for even their most basic needs. (Exhibit C5, Chart of Income and Expenses). Although he works hard to provide for the family, Respondent’s husband earns a modest income. Even if he were to find a way to continue working in his wife’s absence, it would be impossible to maintain two households, even at the most basic level, in two countries.

Conversely, [REDACTED] recognizes that even if he were to go with his wife to Guatemala and uproot their children, he would not be able to earn a living or provide for the family due to the high unemployment, dangerous conditions and low wages in Guatemala. (Exhibit E, Research / Country conditions reports). He has lived nearly his entire adult life in the United States. His entire family, support network and all his resources and assets are in this country. Further, long absences from the country would jeopardize his ability to maintain Lawful Permanent Resident status in the United States.

[REDACTED] depends on the respondent for nearly every facet of daily life, from serving as the primary caretaker of their children to maintaining the family home. He states it best in his affidavit by saying, “Our family would suffer greatly if we get split up. The children have now a stable home and depend greatly on their mother’s care.” (Exhibit C2, Affidavit of Respondent’s husband). The emotional hardship of a forced separation after nearly a lifetime together would be unbearable for the respondent’s husband. If this motion is denied and the respondent is forced to return to Guatemala, her Lawful Permanent Resident husband will suffer emotional and financial hardship. The anguish he will feel is best summarized in his affidavit, where he notes, “Our family would suffer greatly if we get split up...I would not be able to care for our children here alone.” (Exhibit C2, Affidavit of Respondent’s husband).

C. RESPONDENT’S REMOVAL WOULD CAUSE EXCEPTIONAL

HARDSHIP TO HER THREE U.S. CITIZEN CHIDREN

Like her husband, [REDATED]’s three U.S. citizen children will also suffer hardship if this motion is denied and she is forced to return to Guatemala. As noted above, Respondent and her husband are the proud parents of [REDATED], born in 1999, [REDACTED], born in 2006 and [REDACTED], born in 2009 (Exhibit A5, Birth Certificates of Respondent’s children). Additionally, their oldest daughter, [REDACTED], has been granted deferred action status. (Exhibits A6-A7). Each of these children is deeply attached to their mother, as she has been their primary caretaker since birth. She has often been the primary source of support as her husband frequently works extended hours. The younger children, now adolescents, need their mother as they maneuver their way through the difficulties of the teenage years and the older children need their mother’s guidance as they navigate the trials of young adulthood. The youngest child, still in junior high school, would face intense pain and the unsettling of her entire world if she were to lose her mother at such a tender age. In their statements, the children note the central role their mother plays in each of their lives. Her son [REDACTED] states, “…she has worked hard to give me and my sisters a better life…I cannot live without my mother.” Her youngest daughter [REDACTED] explains how much she loves the respondent and concludes, “A person without a mom can’t be happy.” (Exhibit C3, Affidavits of Respondent’s children). Clearly, [REDACTED] is the primary emotional support for her children and a pillar of the family home.

In addition to emotional hardship, there will also be long-lasting educational consequences. Research has shown that family separation has a negative impact on the educational success of immigrant children in U.S. schools. Children separated from either parent are “more likely to be behind other their age in school and more likely to drop out of high school.” These effects are further pronounced when the separation is from a mother. (Exhibit E2, Family Separation and the Educational Success of Immigrant Children at page 1). Left on his own, Respondent’s husband agonizes over the impossibility of adequately providing and caring for his children. (Exhibit C2, Affidavit of Respondent’s Husband). Severing the close relationship between Respondent and her children would produce immediate emotional hardship as well as delayed struggles related to their education.

In addition to emotional and educational hardship, each of Respondent’s children, especially her daughter [REDACTED], will suffer medical hardship if her mother is removed from the United States. [REDACTED] has been diagnosed with a lifelong condition of abnormal thyroid function. (Exhibit C7, Letter from treating physician). Her condition requires prescription medication and monitoring. (Exhibit C8, Prescription history). Respondent has consistently monitored her daughter’s condition and made sure she receives all necessary treatment. As her treating physician states, “She has been on treatment since birth…this is a lifelong condition.” (Exhibit C7, Letter from treating physician). Each of these three U.S. citizen children has medical insurance, provided by the state of Georgia, which allows them access to necessary medical care and affordable medications. (Exhibit C6, Proof of medical insurance).

Likewise, each of the children will suffer hardship if this motion is denied and they accompany their mother to Guatemala. Uprooting them from the stability and security of a two-parent home for a life of poverty in a violent third world country would produce severe emotional and financial consequences. First, they would face the loss of their father, as he would likely have to remain in the country to earn a living, provide for them, and to maintain his status as a Lawful Permanent Resident. The children will also experience the effects of financial hardship. As [REDACTED] has been in the United States for over three decades, she has no resources, close family connections, or employment prospects in Guatemala. Additionally, she is totally unfamiliar with Guatemala, not having lived there or even visited for nearly thirty years and will be returning as a single mother. (Exhibit C1, Respondent’s Affidavit). All these factors further enhance the degree of hardship the family will already face as residents of such an impoverished country. The family’s modest income has already put a strain on the family finances. The added burden of supporting a second household would simply be overwhelming. [REDACTED], an unskilled worker, simply does not have the earning potential to support six people living in two different countries. Respondent is unlikely to find stable employment, especially without access to childcare. Even if she were able to secure some type of work, she would not be able to achieve a degree of economic stability that the children need. Even the older children would be unable to secure employment, as their first and primary language is English, and they have never lived in Guatemala.

In summary, if this motion is denied and Respondent is forced to return to Guatemala, the children will suffer both the devastating emotional consequences of losing a parent and the crippling financial effects of separation of the family.

D. RESPONDENT WOULD SUFFER EXCEPTIONAL HARDSHIP IF

REMOVED FROM THE UNITED STATES

Respondent herself would suffer exceptional hardship if this motion is denied. As noted above, she entered the United States as a young adult nearly thirty years ago. She has remained in this country since that time, building a life and raising a family. If this motion is denied, the respondent will be forced to return to Guatemala, a country she has not visited or lived in for decades. She has spent nearly all her adult life in this country and considers it her home. It is the only way of life that she now knows.

Respondent will suffer severe emotional hardship if forced to return to Guatemala. Most of her family lives in the United States. Her husband is a Lawful Permanent Resident and three of her children are citizens of the United States. (Exhibit A2, I-551 of Respondent’s Husband and Exhibit A4, Birth Certificates of Respondent’s children). One of her children has been granted benefits under DACA. (Exhibit A7). One of her sisters is a lawful permanent resident. Another sister is a U.S. citizen. Additionally, the Respondent’s brother-in-law and nieces and nephews are either lawful permanent residents or U.S. citizens. (Exhibit C15, Proof of status of Respondent’s family members). In sum, her entire family and support network and all that they add to her life is inside the United States. A forced return to Guatemala would sever the family unity that is foundational to Respondent’s life. (Exhibit A8, Family Photographs).

In contrast, Respondent agonizes about life in Guatemala. If forced to return to a country she no longer knows, she will have virtually no financial or emotional support. Although she does have extended family there, she has not seen them for decades. There is no sense of familial connectedness that plays such an essential role in her current happiness and well-being. The respondent will face the hardship of trying to establish herself in a violent and poverty-stricken country where she has no emotional or family support to assist her. She will be isolated from her entire family, including her spouse and children. (Exhibit C1, Respondent’s Affidavit).

In addition to the extreme emotional hardship described above, Respondent will also endure economic hardship if this motion is denied and she is forced to remain in Guatemala. The respondent is currently dependent on her husband for financial support. Although she does work, she earns minimum wage. It is Respondent’s contributions inside the family home, running the household and caring for the three children that have allowed her husband to work full time. (Exhibit C2, Affidavit of Respondent’s Husband). If forced to remain in Guatemala, [REDACTED] will have no financial support. As it is, the couple strains to make ends meet. Their joint income is barely sufficient to run their six-person household; it would be completely impossible to maintain both their current household and an additional residence for Respondent in Guatemala. (Exhibit C5, Proof of family income and expenses). There will be little opportunity for her to earn wages that will be sufficient to even pay for necessities. She will be forced to live in a country where high unemployment and abject poverty are the standard. (Exhibit E, Research Describing Conditions in Guatemala).

E. RESPONDENT IS A PERSON OF GOOD MORAL CHARACTER

Respondent is an upstanding member of society who adds value and service to her community. In the three decades she has lived in the United States, she has never been arrested nor had any contact with the police. She and her husband have dutifully paid income taxes. (Exhibit C4, IRS tax return transcripts spanning 2000-2021). They are members of the [REDACTED] Church in Greer, South Carolina. (Exhibit C14, Letter from Priest). Respondent’s friends and family members all attest to her commitment to both family and community. (Exhibit C16, Letters of Support).

V. APPLICABLE LAW AND PRAYERS FOR

CONSIDERATION OF RESPONDENT’S

MOTION

Pursuant to 8 C.F.R. § 100.43, an individual may file a motion to reopen deportation or

exclusion proceedings to apply for Lawful Permanent Residence under NACARA. Reopening deportation proceedings is warranted in this case due to the following facts: First, the respondent is prima facie eligible for benefits under the NACARA. Additionally, there exist several sympathetic humanitarian factors in her case, including her thirty-two-year marriage to a Lawful Permanent resident and the fact that she has been physically present in the United States for almost thirty years. Furthermore, the respondent has substantial family and community ties, including her role as the primary caretaker of the couple’s U.S. citizen children. Finally, she is a person of good moral character with absolutely no criminal history. Respondent, her Lawful Permanent Resident husband, and her U.S. citizen children would each suffer extreme hardship if this motion is denied.

Considering the foregoing, Respondent, joined by Immigration and Customs Enforcement, respectfully requests this Court to reopen this case to consider an application for suspension of deportation under the NACARA. Both Respondent and ICE agree that ICE reserves the right to challenge the merits of the application for suspension of deportation at the time of the hearing in this matter.

WHEREFORE PREMISES CONSIDERED, Respondent prays that the Court consider the extraordinary facts presented by this case and grant her motion in the interest of justice.

_________________________ _________________________

Heather R. Todd, Esq. U.S. Immigration and Customs Enforcement

Attorney for Respondent Department of Homeland Security

Todd Immigration LLC ICE Office of Principal Legal Advisor

3745 Cherokee Street NW, Suite 202 401 W. Peachtree St. NW, Suite 2850

Kennesaw, GA 30144 Atlanta, GA 30308

[1] 8 C.F.R. §240.61(a)(4): “…subpart H applies to the following aliens: An alien who is the spouse or child of an individual described in paragraph (a)(1), (a)(2), or (a)(3) of this section at the time a decision is made to suspend the deportation, or cancel the removal, of the individual…”

[2] “Motions to reopen or reconsider a decision of an Immigration Judge must be filed with the Immigration Court having administrative control over the Record of Proceeding…” 8 C.F.R. §1003.23(b)(1)(ii).

[3] “The time and numerical limitations set forth…shall not apply to a motion to reopen agreed upon by all parties and jointly filed.” 8 C.F.R. § 1003.23(b)(4)(iv).

Organizational Culture Case Study

Introduction

The subject of this autoethnographical[1] analysis is Todd Immigration LLC, a boutique immigration law firm I own and operate. The business opened in 2013 and currently employees three people, including myself, a paralegal, and a legal assistant. Our customers include people living inside the United States and individuals living abroad. Approximately seventy-five percent of our clientele speak Spanish as their primary language and vary in terms of their ages, education levels, and income levels. The practice focuses on two primary areas of immigration law: affirmatively filed family-based immigration cases, meaning cases where the intending immigrant initiates contact with the government, and defensively filed removal cases, meaning cases filed in an effort to terminate removal or deportation proceedings initiated by the U.S. Department of Homeland Security.

Methods/Data Used

This case study was completed using two methods. First, I employed participant observation[2], as I am a part of the company culture and have observed employee behavior the last nine years. Second, this study includes an examination of the company’s artifacts, including physical layout, dress code, company website, employee reward system, case-tracking spreadsheets, case submission templates, and the company’s written core values statement.[3]

Analysis of Key Questions[4]

1) The Five W’s[5]

Who are the people in the organization?

There are a total of three employees in the company. Employee 1, myself, is the owner and attorney. The attorney is responsible for all initial consultations, all legal assessments and strategies, and setting the fee schedule and company sales goals. The attorney is also responsible for long-term strategic planning and in-person representation of clients before government agencies and in court hearings. Employee 2 is a paralegal, and Employee 3 is a legal assistant. The paralegal is responsible for follow-up appointments with existing clients, gathering client evidence and organizing it for submission, and much of the day-to-day contact with clients regarding routine questions and correspondence. The legal assistant is responsible to answer phones, process all incoming and outgoing mail, manage the office calendar and schedule appointments, complete Spanish and English translations, and a variety of office management tasks related to vendors (i.e. – phone company, internet, leasing of office equipment, banking, accountant, etc.). The attorney assigns work to the paralegal and legal assistant, and the paralegal also assigns work to the legal assistant. Both report to the attorney.

What is the organization’s mission(s)? The organization’s primary mission is to provide high-quality legal representation in both family-based and removal defense cases, allowing clients to obtain or maintain lawful immigration status. The secondary mission is to improve the lives of immigrant clients who often live with fear and uncertainty about their futures, and the lives of their families.

When do things get done?

The office functions by both internal timelines and external deadlines. External deadlines include court dates, filing deadlines scheduled according to the Immigration Court’s policies and procedures manual, and deadlines put into place by virtue of the date of expiration of a client’s status (i.e. – the date a work permit or green card expires).

Where are people located?

All employees work in-person in the principal office location in Kennesaw, Georgia. The attorney also works one day per week in the satellite office location in Dalton, Georgia in order to see clients that live farther north. Each employee has a private office. The offices of both the paralegal and the legal assistant adjoin a client lobby. The attorney’s office is at the far end of a hallway separated from the other offices and the lobby. The paralegal and legal assistant meet with clients in their offices. Office doors generally remain open when there are no clients in the office but are closed whenever clients are present to maintain client privacy and confidentiality of legal information.

How are things completed?

While multiple employees contribute to each filing or submission to the government, each employee has their own specific role within that contribution. The paralegal, using a template list developed by the attorney for whatever type of filing is being completed, will gather and order client evidence and documents, and will complete any necessary governments forms. The attorney will write any legal briefs or arguments required, will review the forms prepared by the paralega, first alone to ensure completeness and accuracy and then with the client, and will also review the evidence compiled. Upon approval, the legal assistant will scan and save to the office’s electronic filing system, the physically mail or electronically submit the filing and follow up to ensure receipt. Work is completed by each employee individually, then those separate components are reviewed and compiled. The attorney is responsible for completeness and accuracy of all legal work, including work completed by both the paralegal and legal assistant.

2) What assumptions drive the organization culture?

Several of the assumptions that drive the organizational culture are that our work matters because each client matters and ultimately, we can effect change in the work of immigration law and policy, that hard work yields results and rewards, that tradition is valued, and that people come first. Each of these assumptions are seen in the company’s artifacts.

First, the company’s written artifacts emphasize this assumption of clients mattering by highlighting a client-centered approach. Policies of individualized assessment and strategizing, Saturday appointment availability, and flexible payment plan options are all noted on the website. The company’s “core values” list includes “clients first” as one of the five core elements of the practice, with an extended explanation of expectations of courtesy and promptness in responding to clients. Finally, the standard contract each client and a member of the firm signs on the date of retention notes that employees commit to returning all client calls and emails within twenty-four hours. All these written artifacts highlight the core assumption that clients matter. These written artifacts also emphasize excellence in work product as a core value, with the express purpose of using creative legal strategies and bold legal arguments to effect change at the policy and enforcement level of certain governments agencies (i.e. – ICE and USCIS) that have the authority to exercise their discretion in approving various types of immigration filings.

The second assumption, that hard work yields results and rewards, is also evident in the company’s artifacts. As noted above, one of the five core values is excellence in work product. Excellence is defined in the core values list as including attention to detail and thoroughness in preparation of evidence and leads is required because it increases the probability of success in an immigration filing. This point is repeatedly emphasized in the organization, not only in the core values list but also as part of the legal training employees complete and in the use of templates or lists that must accompany each completed case to track completion of certain tasks and inclusion of certain documents in each type of filing. The goal is for both the paralegal and the legal assistant to complete this template checklist before a case is given to the attorney for final review.

This second assumption is also evident in the employee reward system. Each month, the organization has two specific sales goals. If the lower goal is met, both the paralegal and legal assistant receive a bonus. If the higher goal is achieved, they receive a slightly larger bonus. This reward system was put into place nearly two years ago and since its inception, the organization has met at least the lower sales goal each month and has met the upper sales goal many months. The idea is to motivate employees to improve customer service and promptness in responding to client and potential clients to drive sales and, as a result, be rewarded for that effort.

A third assumption, that tradition is valued, is not overtly stated but can be observed in company artifacts. First, the physical layout of the office includes separate offices with the attorney separated from the lobby and the other employees. In-person office attendance is required. This indicates a clear hierarchy and a more traditional office environment. Second, the organization has a formal dress code. Employees are required to wear business suits, or slacks and blouses, with closed-toed shoes. No blue jeans or casual wear is allowed, and more conservative business clothing is expected. Third, the organization emphasizes adherence to rules and procedures. All high-level casework is completed with a checklist and goes through a standardized system of review, and even more routine work like physical file maintenance and order, mail processing and end-of-day tasks include a checklist to ensure completion. These checklists are in place to manage a large volume of work, hopefully without error, and to maintain client files and documents in accordance with the state’s ethical rules for attorneys.

A fourth assumption that drives the external organizational culture is that of being “people-oriented” or what is commonly termed client-centered. First, one of the five core values of the organization is “people first.” The organization defines this value as “making clients feel welcomed, valued, and heard” and includes “being courteous of others, regardless of the individual’s response or value of their case.” In addition to the enumerated core values list, this assumption is also evidenced in the standard contract that all clients sign. That contract explicitly states that all client communications, including emails and phone calls, are returned within one business day. This assumption is a key to the organization’s success and to increase the number of client-referred business. As such, it is part of the company’s artifacts.

3) How were these assumptions developed and how do they

continue to operate?[6]

Culture creation in the organization is drive by the preferences of the attorney, who is the founder and leader. These values include a high level of organization and responsiveness to clients. Prior to founding the business, the attorney worked in private practice for larger law firm and observed, with regularity, client dissatisfaction with attorney and paralegal responsiveness. Clients were often shuffled between various staff members and personal, individualized attention was difficult to achieve or maintain in a larger organization. As a result, when the attorney opened the organization, this personalized attention and attention to detail in maintenance of client files and information was a central theme of the organization’s setup. These values and preferences have assisted in maintaining company success.

Second, the “industry demands” that affect culture creation are those that require strict adherence to deadlines and evidence rules, and a professional image. Generally, clients in need of legal representation are searching for reliable, knowledgeable, and professional attorneys and office staff – client needs don’t necessarily include cutting-edge innovation or creativity on their list of desirable attributes in this industry. As a result, the office procedures are structured to deliver reliability and efficiency, and the appearance of professionalism is a top priority.

The organization maintains its’ culture through employee on onboarding, role modeling, and the employee rewards program. New employees are required to complete a formal training program that includes both legal training and office procedures training. Employees are given a copy of the office policy manual outlining expectations and requirements, and are instructed about the use of templates and checklists. Finally, new employees shadow another employee to learn appropriate skills but also attitudes and behaviors expected.

As described above, each employee in the organization is rewarded if a certain sales goal is achieved. Again, this is to reward effort in keeping clients happy so that they will refer new cases and to make potential clients eager to retain the firm. Each employee earns the same amount of reward, and either both receive it or neither does. The rewards program is set up in this way to avoid competitiveness between employees and to reward performance, not seniority or experience.

4) What challenges does the organization face because of the culture?

As the organization’s artifacts demonstrate, the culture could be characterized as traditional, detail oriented, and hierarchal. The first major challenge because of the company culture is communication, particularly when there is an employee error. Employees are reluctant to openly communicate when they have made an error because the culture emphasizes correctness and attention to detail. While accepting responsibility for errors is desirable, that can be difficult to achieve in an organization where rules and processes are so highly valued and adherence to them is considered critical. Additionally, as the physical layout described above emphasizes privacy, communication can be somewhat closed off and disjointed at times.

A second challenge in the organization is finding a balance between client-centered services, which has been crucial in growing the business through referrals, and sales growth. As seen in the employee rewards policy, meeting sales targets is important and rewarded. However, this can sometimes be at odds with client-centered service, which often requires spending more time with existing clients and scheduling fewer appointments with potential clients. It also means investing significant time on cases where the sale was already made in previous weeks or months to ensure client satisfaction, which means less time meeting with and retaining new clients. Employees are sometimes eager to overbook appointment slots and put off work for existing clients to book new business to drive sales and, in turn, secure the monthly bonus.

Conclusions

Overall, the organization’s culture is in alignment with its’ values. It can be classified as an overlap of outcome-oriented culture because rewards are tied to successful performance, and a detail-oriented culture, because precision and accuracy are highly valued.[7]

Recommendations

1. Consider changing the employee rewards program.[8]

One area of potential change is to reexamine the employee rewards program. Instead of rewarding sales, or only sales, consider rewarding based on a metric related to customer service or excellence in work product. This could include rewarding an employee each time a client commends an employee’s work or rewarding employees when a certain percentage of their cases are completed at a high level of accuracy when submitted for final review.

2. Consider ways to improve communication.

To encourage more open communication, consider ways to facilitate the behavior. This could include weekly staff meetings or one on one times with each employee on a scheduled basis, or a full-day retreat for employees to communicate ideas and plan for the upcoming quarter or year.

3. Offer regular employee training sessions.

This employee training sessions could be conducted in-house by the attorney, or through outside conferences and trainings. These training sessions could emphasize the cultural value of professional development and could aid in decreasing employee error in a supportive environment.

[1] Henry, Jim. “How Can Technical Communicators Fit into Contemporary Organizations?” Solving Problems in Technical Communication, edited by Johndan Johnson-Eilola and Stuart A. Selber, The University of Chicago Press, 2013, p. 91.

[2] Henry, pp. 94-99.

[3] Henry, pp. 99-100.

[4] Henry, p. 90

[5] Henry, p. 94

[6] “Organizational Culture” Principles of Management, University of Minnesota Libraries Publishing, 2015, pp. 213-217.

[7] “Organizational Culture”, pp. 210-211.

[8] “Organizational Culture”, p. 222.

Workplace Ethics Case Study

Introduction

Nikola, a company that makes electric trucks, has been the subject of an investigation by the Securities and Exchange Commission (SEC) for nearly two years, ultimately leading to the company agreeing to pay $125 million to settle charges of defrauding investors. Nikola’s former CEO, Trevor Milton, played a large role in the scandal. The SEC found that the company is responsible for the actions of Milton, which included deceiving investors about the company’s “…products, technical advancements, and commercial prospects…”[1] The central issue in this case is as follows:

Were Nikola and/or Milton’s statements about the company and its advances or products unethical, ultimately leading to the financial harm suffered by investors? Alternatively, were those statements within the confines of ethical behavior and the financial harm suffered is simply part of a high-risk investment for which no party ultimately bears responsibility?

Background/Facts

The Nikola Motor Company is an Arizona-based company founded in 2014 by Trevor Milton. Two years later, the company introduced their first prototype of a line of semi-trucks, which were hyped as an innovative product because they use hydrogen as a fuel source. The company claimed that thousands of these trucks were ordered, amounting to over 2 billion dollars in sales. Over the next several years, various prototypes of different vehicles were developed but abandoned by the company. In 2019, founder Trevor Milton became the company’s executive chairman. In early 2020, two major events occurred at Nikola: an electric pickup truck was unveiled, and the company went public as part of its merger with a special purpose acquisition company (SPAC) named VectoIQ. By late 2020, the company had partnered with General Motors for purposes of producing the pickup trucks. Within just a few weeks, rumors of fraud began to circulate. The allegations were that Nikola had not actually produced any drivable vehicles despite its claims of doing so, and that the advanced technology hyped to investors was actually still in its infancy. Milton resigned, the partnership with General Motors fell apart, and plans for the electric pickup truck were abandoned. Both the SEC and the U.S. Department of Justice (DOJ) began investigating the company.[2]

In 2022, the SEC announced its findings that Milton, and by extension Nikola, had deceived investors by making misleading statements over a period of months in 2020, during which time stock prices for Nikola had reached $65.90 per share. Those statements included tweets written by Milton and his statements to the media suggesting that the semi-trucks were operational even though they apparently were nowhere near drivable.[3] Following the fraud allegations, stock prices fell to just over $9.00 per share. The company just recently finally produced two vehicles for delivery to customers.[4]

Nikola has neither confirmed nor denied the fraud allegations but has agreed to pay a $125 million fine to the SEC, which is to be used to compensate investors that suffered financial loss. Because the company projects so little in revenue over the next year, approximately 8 million, the SEC has agreed to what is essentially a payment plan of this fine.[5]

In his personal capacity, Trevor Milton has been criminally indicted for both securities and wire fraud. The indictment states that Milton “lied about nearly every aspect of Nikola’s business to drive up investor demand for shares.”[6] Those charges remain pending, and a jury trial is scheduled later this year.[7]

Analysis of Alternatives

A. Alternative 1: Nikola and/or Milton’s statements are within the confines of ethical behavior and the financial harm suffered is simply part of a high-risk investment for which no party ultimately bears responsibility.

Utilitarianism is probably the only ethics perspective that would allow one to argue in favor of this alternative. Because Milton and the company’s statements are arguably useful, at least to some stakeholders in the dilemma, there is at least an argument for this alternative. This theory emphasizes “accomplishing the greatest useful goodness for the greatest number of people.”[8]

The shareholders in this dilemma include the investors who ultimately lost money, Trevor Milton and other employees of Nikola, and other companies and their employees in partnership with Nikola, such as General Motors and VectoIQ. Nikola and/or Milton’s statements to drive up the prices of shares did just that, generating excitement and leading to partnerships for production. The soaring stock prices was of huge benefit to Trevor Milton himself, to employees of Nikola who were certainly experiencing job security as the company grew and amassed wealth, and those employees of companies like GM who were partnering with Nikola.

In other words, it wasn’t only Milton and other high-level employees who stood to gain – arguably it was Nikola’s lower-level employees and auto industry workers from places like GM who have seen high rates of unemployment and underemployment in recent years as technology advances and foreign companies have come to dominate auto manufacturing. As a native of Dayton, Ohio, I have seen firsthand the economic devastation to blue collar families as a result of closing so many auto manufacturing plants in the Midwest, including those owned and operated by GM.

In ethical deliberations, utilitarianism allows for “quantitative calculation of what to do ethically.”[9] Under this approach, whether or not Nikola’s or Milton’s behavior was “good” or wise or altruistic is not at issue. Instead, we can look at things like number of people employed as a result of his behavior and soaring stock prices, wages to be earned, and perhaps even the positive economic impact this would have on economically-depressed areas where GM would have reopened plants – places like Dayton, Ohio and Flint, Michigan. While investors did stand to lose money, there is an argument here that those investors were only the few, and if things had worked out, many people would have benefited. This conclusion is enough to justify Nikola and/or Milton’s behavior, no matter the moral repugnance or legality of the behavior.

B. Alternative 2: Nikola and/or Milton’s statements about the company and its advances or products are unethical, ultimately leading to the financial harm suffered by investors.

While both morally outrageous and potentially illegal, the company and/or Trevor Milton’s actions are also likely unethical using either Aristotle’s perspective or the Kant framework. Aristotle’s view, with its emphasis on virtue and personal character, places importance on ethical habits instead of just a single act.[10] In Milton’s behavior, and Nikola’s endorsement or acceptance, we see a pattern of conformity with the lower, more instinctual nature of greed. Milton made not one statement inflating Nikola’s technological advances and capital. The SEC found that these misrepresentations occurred over a period of at least seven months, and across a variety of platforms including social media and public appearances. Milton then used the material gain that resulted from these misrepresentations to fund his lavish lifestyle. Even now, as Milton faces criminal charges, he has requested that details of his spending habits be ruled inadmissible as evidence for the jury to consider. This behavior is a long-standing pattern with the company and Milton himself that endured for months, and only ended when allegations of fraud were leaked, and an investigation launched. Simply put, the highest value for Milton and Nikola was self-interest and material gain and this value was lived out through deceptive action repeatedly over an extended period of time. This self-centered internal motivation was habitual and as such, deeply unethical under Aristotle’s perspective.

Under Kant’s duty-based perspective, the Milton and Nikola’s behavior is also unethical. Whether Milton was acting out of self-interest, the company was eyeing material gain, or even if one were to argue that there was an altruistic motive to create jobs as discussed in the utilitarian analysis – all these aims are irrelevant.[11] The company had a duty to be honest regardless of any negative outcome, such as failing to drive up stock prices or even bankruptcy. Considering “oneness with the rest of humankind”[12] lying to the public to falsely inflate stock prices, then cashing in on that deception for personal gain certainly falls short of the Golden Rule. No one wants to be taken advantage of, lied to, or swindled out of money. Honesty is a universal, categorical duty and Nikola’s egregious violation of that duty is absolutely unethical.

Proposed Solution

Startup companies are faced with a variety of pressing challenges in raising capital and producing technologically advanced products. These challenges are aggravated by the competitive nature of the market and the financial and political challenges of contracting with a special purpose acquisition company (SPAC).

One solution to avoid a company chairman like Trevor Milton from deceiving the public is to create a company ethos of ethics, and to change or limit the reward system in place for high-level executives.[13] Nikola’s culture was built in a way that incentivized Milton’s behavior. He was rewarded for raising capital and for selling his stock shares at a massively inflated price based on his misrepresentations. This executive share plan drove Milton to make unethical decisions in the short-term, which ultimately cost the company its reputation and millions of dollars. For the moment, Nikola remains in business with a new chairman, although the price of stock has dropped approximately 85% since its height under Milton. For the current chairman and other high-level officials, one solution is for Nikola to pay a flat, salaried rate with annual increases based on a variety of performance metrics unrelated to raising capital – essentially this would remove the incentive to behave as Milton did. Similarly, the SEC or DOJ could limit the percentage of shares an executive could own and the pace of selling those shares could be regulated to avoid quick cash-outs based, which may be based on unfair advantage or deception of the public.

Strategies For Implementation

The following are steps Nikola could take to implement change in the organization and to avoid recurrence of the previous behavior:

1. Create a culture that emphasizes ethical values.

Nikola could include honesty or service to the greater good as part of their mission statement and could include this type of value in the written materials distributed to employees such as employee handbooks, or written core values statements that employees acknowledge by signing. Analyzing and then codifying the highest-ranking values in the company’s artifacts can contribute to ethical decision making by employees.[14] Studies have shown that company culture, including language, affects employee decision-making.[15]

2. Incentivize ethical behavior.

First, employee evaluation and compensation should work in conjunction with the company’s values. These values, as discussed above in creating an ethical culture, can include things that contribute to Nikola’s success but are not tied to raising capital. For example, Southwest Airlines uses an “executive scorecard” that rewards on-time performance among other objective measures.[16] Nikola could incentivize things like number of test drives with hydrogen fuel completed or quantity of contacts made with potential partners to produce semi-trucks. Bonus payout structures can, and should, reward behavior that aligns with the company ethos of ethics by tying performance rewards to behavior that are not related to raising capital.

[1] Ponciano, Jonathan, “Nikola Will Pay $125 Million to Settle Fraud Charges as Indicted Ex-CEO Tumbles Out of Billionaire Ranks,” Forbes, December 21, 2021, Nikola Will Pay $125 Million To Settle Fraud Charges As Indicted Ex-CEO Tumbles Out Of Billionaire Ranks (forbes.com)

[2] Mccandeless, James, “Quick History of Nikola Motor Company, the Embattled Hydrogen and Electric Vehicle Startup, Newsweek, July 29, 2021,

Quick History of Nikola Motor Company, the Embattled Hydrogen and Electric Vehicle Startup (newsweek.com)

[3] Ludlow, Edward, “Nikola Founder Exaggerated the Capability of His Debut Truck,”, Bloomberg, June 17, 2020,

Nikola Founder Exaggerated the Capability of His Debut Truck - Bloomberg

[4] Ponciano, Jonathan, “Nikola Will Pay $125 Million to Settle Fraud Charges as Indicted Ex-CEO Tumbles Out of Billionaire Ranks,” Forbes, December 21, 2021,

Nikola Will Pay $125 Million To Settle Fraud Charges As Indicted Ex-CEO Tumbles Out Of Billionaire Ranks (forbes.com)

[5] Ibid.

[6] Ibid.

[7] Stempel, Jonathan, “Nikola founder Trevor Milton faces new fraud charge,” Reuters, June 22, 2022, Nikola founder Trevor Milton faces new fraud charge | Reuters

[8] Dombrowski, Paul. “The Ethics Tradition” Ethics in Technical Communication, Allyn & Bacon, 2000, p.55

[9] “The Ethics Tradition”, p. 54

[10] “The Ethics Tradition”, p. 42

[11] “The Ethics Tradition”, p. 47

[12] “The Ethics Tradition”, p. 51

[13] Maura C. Ciccarelli, “Here’s How to Reduce Unethical Behavior via Comp Plans,” Human Resource Executive, March 6, 2019, Here's How to Reduce Unethical Behavior via Comp Plans - HR Executive

[14] Scott, J. Blake. “How Can Technical Communicators Work in an Ethical and Legal Manner?” Solving Problems in Technical Communication, edited by Johndan Johnson-Eilola and Stuart A. Selber, The University of Chicago Press, 2013, p. 246

[15] Epley, Nicholas and Kumar, Amit, “How to Design an Ethical Organization,” Harvard Business Review, May-June, 2019, https://hbr.org/2019/05/how-to-design-an-ethical-organization

[16] Ibid.