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And You Thought You Didn’t Practice Immigration Law…

by John Hester Jr. |

Do you currently practice in the area of criminal defense?  Family law?  Bankruptcy or employment?  This is a courtesy call for everyone.

According to the Migration Policy Institute (migrationinformation.org), North Carolina’s 2011 population was 7.3% foreign-born; less than a third of those had become U.S. citizens.  Quick math: that’s just under half a million North Carolina residents of all walks of life.  Does anyone really think we’re going to have less immigrants in the near future?

Here’s some old news that still is true: immigration consequences can be far-reaching for any client who is not a U.S. citizen, and odds are you will have several non-citizen clients over the course of your career.  Routine criminal citations and run-of-the-mill domestic and financial issues can ruin non-citizens and their families in ways that are unimaginable.

Profile Your Clients

The police aren’t supposed to do it.  But you are.  It isn’t rude to ask a client or a client’s spouse the following questions: “What’s your citizenship?” or “Are you an undocumented alien?” or “Do you have a Green Card?”  Being nice or minding your own business about a funny name or accent is not worth jeopardizing your client’s future and family unity.

Immigration is a parallel universe.  “Admissible” doesn’t refer to evidence, and “aggravated felons” often commit no felonies, let alone any aggravated offense.  Plea deals almost always get treated as guilty, and admissions relating to any controlled substances, alcohol, dishonesty, stealing, sex, domestic violence, or even indigence might put your client in hot water.  Got an alien on the other side of the table?  Divorces do not end the support agreement for a non-citizen spouse.

Simply knowing your client or client’s spouse is a non-citizen should alert you to proceed with caution.

Make Friends

Make friends with an immigration attorney.  Call that friend early and often.  Don’t know one?  Cold call an immigration attorney or two.  There is no stupid question, except the one that doesn’t get asked.  Running it by an immigration attorney for a few minutes is well worth everyone’s while.

According to the landmark Padilla v. Kentucky decision, criminal defense attorneys have to, at minimum, advise clients to seek the advice of an immigration attorney about consequences of pleas and admissions.  But to be honest, the immigration attorney would rather hear from you.

Ten Points to Take Away

  1. Not all immigrants have the same status.  Permanent residents, conditional residents, refugees, asylees, parolees, visa holders, the undocumented, and aliens under deferred action are all impacted quite differently in identical situations.
  2. Never plead to any criminal charges relating to drugs, alcohol, theft, fraud, family members, or sex without consulting an immigration practitioner.
  3. Never file for expunctions on behalf of non-citizens.  In immigration, the burden of proof is reversed, and your clients will likely have to furnish an original, certified disposition to prove they are eligible for immigration benefits.
  4. Always advise defendants not to pay state bonds if they have an ICE hold.  They should pay bonds only when they can afford both the NC bond and the ICE bond.
  5. Think twice before you plead your defendant out.  Assume immigration will consider your client guilty as a result of the plea, regardless of the disposition.
  6. Think twice before you enroll your defendant in a first offenders, community service, anger management, or other program in exchange for dismissal.
  7. Spouses and employers who sponsor immigrants have obligations to the federal government.  Avoid exposing those clients to civil and criminal liability as a result of your representation.
  8. If you represent a company that employs foreigners, immigration (Homeland Security) is not your only concern.  Labor and Social Security are equally important as far as your client is concerned.
  9. Fixing attorney errors most often entails a motion for appropriate relief based on ineffective assistance and/or complaints to the State Bar.  A phone call earlier will help you avoid being named later.
  10. Advise clients with possible immigration issues in writing.

John Hester, Jr., a Raleigh native, has worked with refugee and immigrant legal service providers since 2008, and has practiced immigration law in Raleigh since graduating from Elon Law in 2010.  John is always willing to speak to other attorneys at no cost, and can be reached at (919) 834-5318 or at john.hester@gmail.com.

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