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Supreme Court awards new trial to illegal immigrants who may now pursue emotional and punitive damages against “reckless” attorney

Iowa Supreme Court
Iowa Supreme Court

DES MOINES – The Iowa Supreme Court on Friday issued a ruling in favor of two illegal immigrants who left the country on their attorney’s advice and then were denied re-entry to the United States.

The court ruled Friday that Klever Miranda and Nancy Campoverde may pursue mental distress damages and punitive damages against a Des Moines lawyer, Michael H. Said.

The court case revolved around Klever Miranda and Campoverde, who were married, living in Iowa and trying to become U.S. citizens after they illegally entered the United States in 1989 and 1992, respectively.

According to court documents, attorney Michael H. Said advised his clients to leave the country in 2005 and go back to their home country of Ecuador while he filed paperwork that he said had a “99% chance of success” of allowing the couple to re-enter the U.S. with a waiver form.

Said advised Klever and Nancy that they could file immigration forms after Cesar (their son and also a plaintiff) became a citizen in which Cesar would sponsor them so that they could obtain lawful permanent resident status and eventually citizenship. However, in order to take advantage of this opportunity, Said advised Klever and Nancy had to leave the U.S. as the forms had to be presented at the consulate in their native country of Ecuador. Once they were in Ecuador, Said stated they would then have to present waiver forms to immigration officials, which would list Cesar as a “qualifying relative,” in order to gain re-entry to the U.S. Based on his past experience, Said told Klever and Nancy he believed they had a good chance of success in re-entering the U.S. with the waiver form.

Based on Said’s advice, Klever, who was still subject to a deportation order, voluntarily left the U.S. in 2005 to await the time when Cesar would become a citizen. The paperwork was prepared by Said, and when Cesar became a citizen in June of 2006, forms were filed with Department of Homeland Security to show Cesar’s relationship to Klever and Nancy. In 2007, Nancy left the U.S. with the waiver packets in hand in order to attend an immigration interview at the consulate in Ecuador with her husband. Neither Nancy nor Klever looked at the waiver packets before they reached the consulate for their interview. During the interview the couple discovered that Cesar was not in fact a “qualifying relative” under the law for the waiver, and they would not be able to gain re-entry to the U.S.  In addition, because Klever and Nancy had been in the U.S. without proper authorization, their departure from the U.S. triggered a mandatory ten-year bar to re-entry. Klever and Nancy were then stranded in Ecuador, separated from their children in the U.S. for ten years.

The court documents indicated that “Plaintiffs claim Said recklessly disregarded their rights by misadvising them of the probability of success in obtaining the waivers and being able to re-enter the U.S. Finally, plaintiffs claim Said’s actions were a part of a persistent course of conduct in ten to fifteen other cases, and soon unsuspecting clients will find out they are not on a citizenship track and will be subject to deportation.”

Cesar, along with his parents, Klever and Nancy, then filed a legal malpractice lawsuit against Said, claiming that “Said recklessly disregarded their rights by misadvising them of the probability of success in obtaining the waivers and being able to re-enter the U.S. Finally, plaintiffs claim Said’s actions were a part of a persistent course of conduct in ten to fifteen other cases, and soon unsuspecting clients will find out they are not on a citizenship track and will be subject to deportation.”

The court ruled on a 5-2 decision that the plaintiffs may pursue a new trial on the issues of mental distress and punitive damages.  The court denied plaintiffs’ requests for the assessment of court costs and attorney fees.

In dissenting, Justice Thomas D. Waterman said “awards of emotional distress damages against attorneys may have a chilling effect on the practice of public interest law.”

On his law firm’s website, Michael H. Said claims to offer “caring yet aggressive legal services for immigrants and their families in Iowa.”

Read full decision here.

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