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Bar News - July 19, 2013

Federal Practice and Bankruptcy: ¡CUIDADO! Immigration Issues for Non-Immigration Lawyers in NH


Key Terms in Immigration Law

By Ronald L. Abramson

Immigration law, like most any specialty law practice, has its technical vocabulary – starting with the word “immigrant.”

Often misused to characterize anyone who is not a citizen of the United States, the term actually has a more specific meaning. An “immigrant” is a person who resides permanently in a country other than the one of which she is a citizen. In the US, an immigrant who is legally present is called a “lawful permanent resident” (LPR).

Most of the foreign-born persons who are physically present in the United States are more properly called “non-immigrants,” meaning that their time in the United States will expire. This category may include students, workers, tourists, business visitors, airline/cruise ship crewmembers and others.

Some facets of immigration law do not differentiate much between the two types of non-US. citizens. In other ways, though, the difference is significant.
Immigration policy and the proposed reform of a dysfunctional system have intermittently topped the news cycle since President George W. Bush sought to advance the conversation about reforming US immigration law in 2006.

Seven years and two presidential elections later, the issue is poised to generate one of the most significant changes to federal law in a generation. Changes to the immigration system as a whole would have myriad effects on individual, business and institutional rights and obligations.

Meanwhile, a client’s immigration status already presents a host of concerns and possible red flags for the New Hampshire legal practitioner. This article presents a preliminary overview of issues a non-immigration lawyer should understand when representing non-US citizens.

Criminal Practice

As a general rule, non-citizens on American soil wish to remain here through the end of their visa terms, and sometimes beyond. Nothing jeopardizes that stay more swiftly and certainly than conviction for certain types of crimes.

Since the last set of major immigration reforms in 1996, virtually any criminal offense may subject a non-citizen – even a lawful permanent resident (LPR) – to removal or inadmissibility to the United States, and may adversely impact a lawful permanent resident’s eligibility to become a US citizen.

While unambiguously serious criminal conduct such as murder, rape, kidnapping, drug-dealing, and terrorism, are removable offenses designated as “aggravated felonies” under immigration law, minor criminal offenses may also have serious immigration ramifications.

Shoplifting, driving under the influence, violation of a protective order, destruction of property, and simple possession of a small amount of a controlled drug may all have serious and lasting immigration consequences, including removal, inadmissibility and preventing future changes of status.

The interplay between immigration and criminal law is a specialty-within-a-specialty, but the criminal practitioner should flag possible immigration impact, alert the client to the fact of potential immigration effects of a conviction, and incorporate those considerations into plea and sentencing advocacy. And, while such a practice has always been part of competent representation, in 2010, the US Supreme Court explicitly incorporated the immigration advice obligation into the Sixth Amendment’s effective assistance of counsel guarantee. See, Padilla v. Kentucky, 559 US 356 (2010).

Family Law

Immigration issues can imperil representation in the realm of family law in two main ways: when one or both parents in a custody case are not US citizens, and when dealing with the implications of the “Affidavit of Support,” which is part of every marriage-based immigration case.

A parent’s legal right to remain in the United States is obviously germane to determining what’s in the best interest of a minor child. Courts can and should consider a parent’s or child’s ability to reside lawfully in the United States (as well as to travel back and forth). However, family law practice often proceeds on misinformation regarding immigration status, removability, and future re-entry.

Further complicating matters, immigration information may be difficult to obtain through standard discovery means, because all such records are subject to specific disclosure restrictions under the Federal Privacy Act of 1974.

A more complicated, and understandably misunderstood, element of immigration in family law practice is the effect and implications of the Affidavit of Support when a couple with at least one lawful permanent resident separates.

The Affidavit of Support (aka, USCIS Form I-864) serves to overcome the so-called “Public Charge” presumption in the Immigration and Nationality Act. While it is executed between a sponsor and the United States government, there exist private enforcement provisions which play out in family court and US District Court.

Civil Litigation

Theoretically, a person who is in the United States lawfully or unlawfully should experience no barriers to accessing our civil justice system. However, such is not the case. An undocumented non-citizen should be able to pursue civil justice through state and federal courts.

However, in some instances they are denied substantive access to an otherwise valid cause of action. See, e.g., Hoffman Plastics v. NLRB, 535 US 137 (2002) (Despite impermissible discriminatory termination, the court reversed plaintiff’s award where he was employed without authorization.)

On the other hand, New Hampshire allows such a claim in state court, but the plaintiff’s immigration status may impact the determination of damages and other case-related considerations. Rosa v. Partners In Progress, Inc., 152 NH 6 (2005).

Other Areas

In addition to criminal, family and civil issues, a client or other party’s immigration status may impact tax law advice, estate planning, business entity formation, choice of forum considerations, and many other types of legal advice.

It is impossible to distill all of the possible areas where immigration status impacts non-immigration legal representation. The main message for the non-immigration practitioner, then: Identify a client or other party’s immigration status and remain alert to the possibility – or probability – that otherwise straightforward matters may prove more complex than they seem.

In particular, part of fulfilling one’s ethical obligations under NH Rule of Professional Conduct 1.1 and beyond is “identification of areas beyond the lawyer’s competence and bringing those areas to the client’s attention.” When that “area” may impact a client and her family’s entire future, it is especially important to identify such issues early, advise the client fully, and seek outside assistance from competent counsel when appropriate.

Immigration reform or no immigration reform, the fact that non-citizens exist on less-than-identical footing to United States citizens will continue to be an integral part of providing high-quality, comprehensive legal representation.

To his own amazement, Ron Abramson has been practicing law for 20 years. He is the principal and founder of Abramson Immigration Solutions, a full-service immigration law firm. Ron is the Liaison to the NH USCIS for the American Immigration Lawyers Association.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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