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An elaborate scheme involving a fake college set up in New Jersey by ICE has, unsurprisingly, resulted in a lawsuit by some of the foreign students swept up in the sting operation. Apparently having given up on rooting out the worst of the worst non-citizens, ICE is contenting itself with arresting and charging foreigners for attempting to stay in the country legally by continuing their education.

The fake university looked pretty real to applicants. It had a website, a Facebook page, and — most importantly — accreditation by a national accreditation service. The school’s website told students the fake school was certified by the DHS’s Student and Exchange Visitor Program to “educate international students.”

It all looked legit. None of it was. ICE claims it was targeting people who defrauded students or universities by brokering illegitimate educational offerings meant to allow visitors to overstay their visas. That doesn’t explain why ICE accepted registration fees from interested students. Nor why it arrested a bunch of students trying to do something they were legally allowed to do.

ICE ended up with about eight criminal suspects from the hundred-plus arrests resulting from the sting operation. Some of the others caught up in the sting had their visas cancelled, supposedly due to “fraudulent enrollment.” So, in the government’s eyes, the people ICE tricked into enrolling in its very real-looking fake college are every bit as criminal as the criminals the government is actually prosecuting.

The lawsuit deals with these suddenly-cancelled visas. The issue is the government’s arbitrary decision to turn people they first referred to as “victims” into accused criminals solely for the purpose of stripping them of their visas. This determination comes without any form of due process attached, so it’s up to federal courts to field these challenges, as the Appeals Court points out.

The Appeals Court delves into administrative minutia to counter the government’s arguments and point out where the lower court went wrong. But it also spends some time dealing with the government’s contradictory assertions. After sending letters calling the duped students “frauds,” the government argued in court it didn’t actually mean what it said in the letters informing the students they were no longer welcome in this country. From the decision [PDF]:

We held argument on September 25, 2018. There, for the first time, the Government informed this Court that its position was not that the students had committed fraud by enrolling in UNNJ. Rather, the Government believed that the students were the victims of fraud. The Government twice stated that the students “were caught up in it in the sense that they were victim by the academic recruiters” and that “[t]here was no fraud here. These students, as far as we are concerned, were the victims of fraud. . . . [T]hey were caught up in it.”

[thinking face emoji]

How does the government explain calling victims of fraud perpetrators of fraud when revoking their visa privileges? In a word, badly.

When pressed about the language in the terminating letter, the Government (incorrectly) stated that “fraudulent enrollment” was “passive voice,” and therefore should not be read to imply that the students had committed fraud.

That’s a very fine — and very understated — parenthetical there.

And it just keeps getting better. The government comes off as a petulant child who has decided only one thing will make it happy — tossing these students out of the country — and will do whatever it takes to ensure that happens.

Despite the Government’s position that the students were the victims of fraud, it acknowledged that database entries for each student would reflect the “fraudulent enrollment” determination made by DHS. The Government acknowledged that it was able to, consistent with its stated position, eliminate any database notations that suggested that the students had committed fraud, yet it refused to do so.

Beautiful. And that’s followed immediately by another line of pure horseshit, delivered directly to bench by the government’s lawyers.

It argued that correcting the record on a preventive basis was not necessary because the “fraudulent enrollment” determination would not have any adverse impact on the students in future immigration proceedings.

Ah, yes. Being accused of criminal acts by federal agencies tends to have no effect on the accused, especially during removal proceedings or the visa application process.

After all this “no harm, no foul” stuff, delivered in hopes of persuading the judge the government wasn’t just a tantrum-throwing child wearing its dad’s suit, the government decided to embrace its inner child.

On October 12, 2018, the Government changed course yet again. It filed a letter “to clear up any confusion from certain exchanges” that occurred during argument. The Government informed the Court that it was not, in fact, conceding “that all—or even most—UNNJ enrollees were innocent victims.” In fact, the Government now asserted that some of the students “in all likelihood, knew that their academic recruiters were committing visa fraud” and others even “conspired with their academic recruiters to commit visa fraud.” “Thus,” the letter concluded, “to the extent that any of the Government’s comments at oral argument left the misimpression that all of UNNJ’s enrollees were innocent victims of the academic recruiters’ visa fraud scheme, that is not the case.”

After the discussion of the government’s argumentative fuckery, the court turns to the issue at hand. The lower court said the students needed to take their problems up with the immigration court and/or the DHS first before bringing it to the district court. The Appeals Court disagrees. The students can bring this action directly because the determination made by the DHS was indeed final. There are no intermediate steps these students could have taken to challenge the DHS’s determination.

The order terminating these students’ F-1 visas marked the consummation of the agency’s decision-making process, and is therefore a final order, for two reasons. First, there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated. Moreover, even if the students attempt to pursue the administrative procedures for reinstatement, there is no mechanism to review the propriety of the original termination order. Second, the students need not wait for removal proceedings to be instituted. As we stated in Pinho, an order’s finality cannot depend on the institution of removal procedures which may never occur. And in any event, immigration judges cannot review the original denial of reinstatement. They do not have that authority.

The court makes no statement on the propriety of the ICE’s sting operation. It does, however, spend a few pages detailing all the efforts ICE made to ensure the bogus college looked legitimate. The decision is subtly damning in its construction, contrasting the “realness” of the college with the government’s claim students it first called “victims” were now suddenly fraudsters. The lawsuit lives on, headed back to the lower court to give the plaintiffs a shot at getting the DHS’s “fraud” designation scrubbed from their permanent record.

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With LeClairRyan’s dissolution a matter of public record, the battle to control the public narrative is officially underway. Rumors and explanations are proliferating, both publicly and behind closed doors, and many of them should probably be taken with a grain or three of salt. Businesses are complex, and their failures or successes are typically the confluence of dozens of decisions, strategies, and strokes of blind fate.

Two weeks ago, I listed a set of themes I thought would likely emerge in the wake of LeClairRyan’s meltdown. I’ve now had the opportunity to connect with former LeClairRyan partners to get a more crystalized view of what happened. Between this firsthand information and the ample public reporting on LeClairRyan’s demise, it appears that the firm’s leadership suffered from two fatal shortcomings: (i) an inability to make hard decisions, and (ii) a failure to monitor business fundamentals. I’ll do a more comprehensive piece about these points soon.

For now, I’d like to focus on one prediction I got wrong in a very unexpected way. Many law firms collapse due to a failure to anticipate market changes. And some of that was true at LeClairRyan, which evidently failed to monitor market trends in compensation, overhead reduction, and pricing. But ironically, part of LeClairRyan’s failure was the opposite of most firms — namely, anticipating an industry-wide sea change that never materialized.

The Big Bet

John Fitzpatrick, a former LeClairRyan partner with whom I spoke, explained that firm founder Gary LeClair bet big on the notion that the U.S. would follow in the footsteps of the U.K. in allowing outside, non-lawyer investment in legal services. This is consistent with recent Bloomberg Law reporting on the subject, which cites other former LeClairRyan partners who wished to remain anonymous.

Back in 2007, the United Kingdom adopted new rules loosening restrictions on the practice of law by non-attorneys. U.K. law firms can now, within certain restrictions, accept outside investment and share firm revenues and fees with non-attorneys. According to Fitzpatrick and the anonymous former partners cited in Bloomberg, LeClair built his firm’s strategy around the prediction that state bars in the U.S. would follow in the U.K.’s footsteps and loosen the unauthorized-practice-of-law and fee-sharing rules.

LeClair concocted an accounting and stock structure within the firm that allowed for the purchase of a preferred class of firm stock that paid an 8 percent return contingent on the firm making budget. In the short term, firm partners theoretically could invest, build up the firm’s capital reservoir, and have a comfortable long-term return on their investment. In the long term, once the rules governing firm investment loosened up, LeClairRyan would be instantly positioned to either accept massive waves of outside funds and grow itself into a superpower, or sell the firm and allow preferred shareholders to cash in. Sounds like a great plan, right?

But to quote famed business management guru Mike Tyson, everyone has a plan until they get punched in the mouth.

The U.K.-style loosening of firm ownership rules never made it across the pond. In the meantime, LeClair’s unique preferred stock structure exacerbated the firm’s other business problems. The partnership as a whole, with their common stock shares, were inherently at odds with the subset of partners holding preferred stock, since preferred stock got paid first before common stock once budget was met. Further, the preferred stock investments themselves evidently went to patching budget shortfalls, rather than growing the firm as they should have. Pair those with shrinking revenues and aggressive expansion costs, and you have a partnership class tearing itself apart at the seams.

The results speak for themselves. Gary LeClair gambled on a future that never came to pass, and the firm he founded is no more.

Nothing Ventured, Nothing Gained?

LeClair was wrong when it mattered, and it looks like he’s going to remain wrong for the foreseeable future. I wrote last year on the push by the California bar to change its version of the Unauthorized Practice of Law (UPL) and fee-sharing rules to follow a more U.K.-centric model allowing for outside investment. California doesn’t care much about opening up law firms to outside investment so much as it is trying to address a critical shortfall in available legal services to consumers. The average lawyer is vastly outside the price range of the average American, and many Californians cannot afford desperately needed legal services. Cracking up some of the bar’s traditional monopoly on those services would invite less-expensive, non-attorney service providers in to help these underserved populations.

The legal profession’s response to this proposal has been nothing short of a torrent of undying fury. Of the public comments received to date on the proposals to loosen the rules surrounding UPL in California, I count 14 in favor and 200 against. Only 1 out of 15 comments supported the changes. On loosening fee-sharing restrictions, it was 9 in favor, 48 against, a 5:1 margin against change. Absent bold action by the state bar in outright defiance of the will of its members, or intervention by a state legislature largely comprised of fellow lawyers, the legal monopoly in California will likely remain in place.

Skin In The Game

There are valid arguments against the U.K.-style loosening of the UPL and fee-sharing rules. Lawyers are traditionally entrusted with their clients’ most difficult, sensitive issues, and we’re governed by ethical rules and norms that ensure we keep our clients’ needs ahead of our own. Opening the market to non-attorneys without those safeguards could lead to abuse, especially among the poorest, who need those services the most. Are potentially unethical, predatory legal service providers better than no providers at all?

But let’s not kid ourselves: we lawyers have a deeply personal interest in keeping our monopoly in place, because it’s how we make our money. The market failure California is experiencing is exactly what one would expect a monopoly to create. Demand far exceeds the artificially restricted supply, and the bottom 90 percent are priced out while lawyers make out marvelously.

Also consider how the Big Four accounting firms are waiting in the wings, ready to pour infinite resources and personnel into a crack that might open up in our market. We’re facing financial headwinds as a profession even during an expanding market, and the bond yield curve just inverted; why would we give up one of the few structural advantages we have going in our favor? People don’t typically vote against their own paychecks. So long as lawyers remain in charge of their own UPL and fee-sharing rules, those rules are probably safe for another generation.

The Future Is When?

The legal monopoly is well protected, both at the state bar level and within state legislatures. It would take either a dramatic shift in bar leadership or a populist uprising in response to the serious shortfalls in the current supply of legal services to see those protections come to an end.

Gary LeClair bet wrong, but it remains to be seen whether it was the substance or timing of that bet that was off. The day may come when outside pressures grow substantial enough to push for a U.K.-style deregulation of the legal market. Or U.S. lawyers may stand firm in keeping our monopoly intact, for good and for bad.

Gary LeClair may yet prove to have been a prophet or a madman. Quite possibly, he’ll prove to have been both.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Kureya previously told the BBC that she’d been banned from attending national events but that she was hopeful things would change

Samantha Kureya, known by her stage name “Gonyeti”, has been critical of the police and government in her skits.

She was taken from her home, beaten and forced to drink sewage before being dumped, her colleague says.

In Zimbabwe, comedians have historically found it difficult to make jokes about authority, fearing jail.

Police have not yet commented on her abduction.

Her brother, Jonathan Gasa, told the BBC that about six armed masked men stormed her home on Wednesday night, took her away, stripped and assaulted her.

He said they accused her of undermining the government with her skits.

She was found three hours later.

Her colleague Lucky Aaron told the BBC that she was dumped in “the bush” in the suburbs of Harare.

He said he picked her up and took her to the hospital for scans which confirmed no bones had been broken.

But he was still concerned for her health because she was forced to drink sewage, he added.

In a tweet, opposition Movement for Democratic Change (MDC) leader Nelson Chamisa called her abduction a “barbaric human rights violation”:

In February Kureya was one of two comedians arrested for public nuisance for wearing a uniform that resembled a police uniform in a skit, reports the BBC’s Shingai Nyoka from Harare.

At the time she was reportedly warned that her comedy was becoming too political.

Her abduction follows several recent cases of activists who were planning anti-government protests being abducted and tortured, human rights groups say.

The Zimbabwean authorities denied any involvement in those abductions.

They have not yet commented on the comedian’s abduction.

Kureya told the BBC in 2018 that her comedy company Bustop TV used to be banned from attending national events but since Robert Mugabe was ousted from power she hoped comedians would be allowed more freedom of expression.

Zimbabwean comics test the waters in post-Mugabe era

“I just hope in Zimbabwe we have the freedom to talk about the president without being in trouble, the freedom to talk about anyone without the police coming after you.”

“I just hope it will change, ” she said.

Post published in: Arts

The multi-faceted young artist has gone from the launch of her book in 2014 to a leading role in the musical productions “Tellers” which debuted in Harare in May 2017 to much acclaim; Scriptwriter for “The Unified Women Project” – an intercultural collaboration between Nhimbe Trust and the Young Vic Theatre, London in September of the same year; the staging and performance in ‘Revelations of You’, her first stand-alone production of live music and poetry in August 2017; a leading role in “Blood Tongue – The Musical” in 2018, and most recently the play ‘6.55’ – her first theatre production, written and directed by herself.

She is a long-time member of Nhimbe Trust’s Women in Theatre & Television programme, which works
for the empowerment and advancement of women artists and is supported by Nhimbe’s partner Africalia, who have contributed widely to the arts in Zimbabwe over the last decade.

Lady Tshawe comes from a rich line of Nguni thinkers and creative workers with her father, a poet
himself, having been her strongest influence. Educated in Bulawayo, she went on to graduate with a BA
degree in Drama and Ethnomusicology at Rhodes University in South Africa, and has since enriched the
cultural scene in the City of Kings (and Queens) with her performances and new developments in wide
circles in the artistic community.

The play 6.55, choreographed by Mehluli “Gomez” Dube, with a cast comprising Musa Sibanda, Nyarie S
Nyika, Agnes Ncube and Sithabile Ndubiwa, was staged at the Bulawayo Theatre on 15 August this year,
and well received with respected theatre practitioners applauding her work.

Josh Nyapimbi, executive director of Nhimbe Trust, said “It’s encouraging to see Noma breaking new
ground professionally. She is an amazing performer and has been an integral part of the WITT
programme.”

Memory Kumbota, Nhimbe’s Children in Theatre and Television (CITT) Trainer said “Another ground
breaking show from a new writer and director proves theatre has a future in this country if given the
right support.”

Director of Intwasa Festival koBulawayo, Raisedon Baya, said “Very good. Loved the mix of music and
dance into the story. Good direction. Good audience too.”
“The show was amazing, great performance from the actors. The script was really good. The play talked
about a deep and sensitive issue that almost everyone could relate. It was a different approach from our everyday theatre. Great attendance as well, it was almost a full house” said Norbert Kumocha – CITT
Playwright Director and Actor.

Lady Tshawe said “I am just a lady whose desire is to tell stories. Whether through characters she plays or through poetry. I realized I had so many stories unheard stored in my computer and I took the risk to direct. It hasn’t been an easy journey, taking risks most women have called a man’s territory. For me, it was and still is about sharing stories that are inside of me. And if it means breaking status quo to have those stories heard, I will break the status quo. Last night, 6.55 premiered! And my heart is full! The theatre was full, and the responses I got after the show made my heart smile. The cast was phenomenal, and Gomez Dube’s choreography made the show. Special thanks to Chypo for the
lighting, and Tino for amazing sound. Thank you to Bluez Café and Nhimbe Trust for everything!
…Theatre is life!”

Post published in: Featured