May 17, 2007
DO-07-015
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Robert I. Cusick
Director
SUBJECT: Immigration Support Letters and 18 U.S.C. § 205
The Office of Government Ethics (OGE) recently has
become aware of inconsistent guidance, and sometimes
misguidance, regarding the application of 18 U.S.C. § 205
to Federal employees who write and submit letters to the
Federal Government in support of aliens applying for a
change in immigration status (immigration support letters).
We previously have provided guidance regarding
representational activity that violates section 205. See
e.g., OGE Informal Advisory Letters 98 x 18 and 00 x 10.
However, in light of the questions we continue to receive,
we would like to clarify that submitting an immigration
support letter generally does not violate section 205.
The applicable portion of section 205 prohibits Federal
employees from:
act[ing] as agent or attorney for anyone before
any department, agency, court, court-martial,
officer, or civil, military, or naval commission
in connection with any covered matter in which the
United States is a party or has a direct and
substantial interest . . . .
18 U.S.C. § 205(a)(2).
OGE interprets section 205 to require the exercise of
some control by the principal over the agent. “[W]here an
employee makes a communication to the Government in support
of the interests of another person, the employee does not
violate 18 U.S.C. § 205, unless there is ‘some degree of
Designated Agency Ethics Officials
Page 2
control by the principal over the agent who acts on his or
her behalf.’” OGE Informal Advisory Letter 00 x 10, p. 2
(quoting OGE Informal Advisory Letter 98 x 18 and Luttig
Memorandum, infra, n. 2). In fact, OGE Informal Advisory
Letter 98 x 18 addresses the analogous situation of a
Federal employee writing a letter of support for a former
colleague in connection with a sentencing hearing. OGE
explained that the mere fact that such a letter may benefit
the person for whom the support letter is being written does
not mean that the Federal employee writing the letter is
necessarily under the control of that person, i.e., acting
as his agent.
1
Section 205 does not appear to apply in the case of a
Federal employee submitting an immigration support letter.
As explained above, in order to act as another’s agent, the
principal must exercise at least some control over the
agent. In the case of writing an immigration support
letter, the author of the letter typically is free to write
his personal opinion regarding the alien’s abilities and
character. Generally, a Federal employee who writes an
immigration support letter and submits the letter to an arm
of the Federal Government would not normally be "act[ing] as
agent or attorney" for another within the meaning of the
statute. In the unusual case where the alien did somehow
exert control over the Federal employee in drafting and
submitting the letter, the Federal employee would be the
1
When analyzing this issue, OGE relied largely on a
1990 opinion of the Office of Legal Counsel at the
Department of Justice determining that a Federal employee
who submits an affidavit to the President in support of a
pardon for another does not violate 18 U.S.C. § 207 if the
Federal employee is expressing his personal opinion and not
acting as agent for the pardon seeker. Memorandum of
October 17, 1990, from J. Michael Luttig, Assistant Attorney
General, Office of Legal Counsel, to Michael Boudin, Deputy
Assistant Attorney General, Antitrust Division, regarding
Application of 18 U.S.C. § 207(a) to Pardon Recommendation
Made by a Former Prosecutor [hereinafter Luttig Memorandum].
Though the prohibitive language of section 207 differs
slightly from the language found in section 205, both
phrases address the same representational conduct. The
Office of Legal Counsel explained that “[a]n agency or
representational relationship entails at least some degree
of control by the principal over the agent who acts on his
or her behalf.” Luttig Memorandum p. 6. Cf
. O’Neil v.
Dept. of Housing and Urban Development, 220 F.3d. 1354, 1360
(Fed. Cir. 2000) (requiring, as an element of the common law
definition of “agency,” that the principal exercise some
control over the would-be agent).
Designated Agency Ethics Officials
Page 3
alien's agent for that purpose, and therefore would violate
Section 205. Thus, when determining whether a Federal
employee acted as another’s agent for purposes of
Section 205 by writing and submitting an immigration support
letter, the critical factor to consider is whether the
Federal employee was under the control of the alien on whose
behalf the letter was submitted.
2
If you have any questions regarding this matter, please
contact Karena Dees, Attorney-Advisor in the Office of
General Counsel, at 202-482-9275.
2
This memorandum addresses only whether section 205
prohibits a Federal employee from providing immigration
support letters. The writing of an immigration support
letter may also implicate section 702 of the Standards of
Ethical Conduct for Employees of the Executive Branch: Using
Public Office for Private Gain. 5 C.F.R. § 2635.702.
Subsection (b) prohibits a Federal employee creating the
appearance of Governmental sanction or endorsement of his or
another’s personal activities. Therefore, a Federal
employee may sign a letter of recommendation using his
official title and/or agency letterhead only:
1. in response to a request for an employment
recommendation or character reference, and
2. based upon personal knowledge of the ability or
character of an individual
a. with whom he has dealt in the course of Federal
employment, or
b. whom he is recommending for Federal employment.
