Maryland Bar Bulletin
Publications : Bar Bulletin : August 2010

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 BAR BULLETIN FOCUS: IMMIGRATION LAW

According to the American Community Survey (ACS), between 2000 and 2007, nearly 227,500 immigrants settled in Maryland – the 13th highest total of any state in the country. To put this in perspective, this means that 71 percent of the total 321,800 population gain in Maryland from 2000 to 2007 may be attributed to foreign immigration alone. Thus, regardless of a client’s physical appearance, it’s becoming more likely than not that immigration laws will determine what we advise our clients regarding their legal options. This is especially true if your practice involves counseling clients in criminal law, family law or labor and employment law matters.

Criminal Law

Nowhere is the impact of immigration law more significant than when crafting or negotiating a plea agreement for a client in criminal proceedings. In the Supreme Court’s recent decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Court held that, in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a non-citizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a non-citizen may raise a claim of ineffective assistance of counsel. The Court stated:

“Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Id. at 17.

All too often, clients fail to disclose their immigration status, and attorneys fail to inquire about a client’s immigration status, unaware that what may be considered “minor” due to the minimal fine and lack of jail time may actually result in removal of the non-citizen from the United States. Consider the following scenario:

Mr. Nguyen was arrested for shoplifting. He has been charged with theft of property under $500. The ASA has offered a probation before judgment (PBJ) with a suspended sentence of 12 months. Should he accept the deal?

Not surprisingly, the answer depends on Nguyen’s immigration status. If Nguyen’s status is anything other than that of a United States citizen, then his criminal lawyer may want to consult with an immigration attorney to minimize any immigration consequences which may flow from a plea agreement.

For instance, if it is determined that Nguyen is a Lawful Permanent Resident (LPR), then before accepting the plea, he should be informed that for immigration purposes: (1) a PBJ is considered a conviction, (2) a suspended sentence is still considered a sentence of imprisonment, (3) a sentence of imprisonment greater than one year will make this seemingly minor infraction an aggravated felony, and (4) depending on the value of the property and the record of conviction, Nguyen may have committed a crime involving moral turpitude (CIMT). Following the Court’s holding in Padilla, and to avoid a call from Bar Counsel, Nguyen should be advised by his criminal lawyer that what would be an otherwise acceptable plea agreement for a United States citizen may very well result in Nguyen’s removal from the United States.

However, all is not lost. Assuming that a nolle prosequi is not a possibility, an alternative plea agreement which would allow Nguyen to avoid the harsh consequences of immigration law may involve pleading to the lesser offense of theft less than $100 and serving the 90-day sentence. Although serving actual jail time may not be an attractive option, Nguyen should be advised that the reduced property value and sentence imposed drastically reduces the possibility that he may be subject to removal based on a conviction for an aggravated felony and/or for a crime involving moral turpitude. Moreover, this alternative would also allow Mr. Nguyen to remain eligible for the Petty Offense Exception should he find himself in removal proceedings in the future.

Family Law

Marriage to an American citizen remains the most common path to U.S. residency and/or citizenship for foreign nationals. The Department of Homeland Security reported that between 1998 and 2007, more than 2.3 million foreign nationals gained LPR status in this manner. Thus, it should come as no surprise that family law practitioners are seeing more cases where at least one spouse is not a citizen of the United States.

In addition to the usual potpourri of laws that family law practitioners are expected to comprehend, domestic matters involving a non-citizen spouse require an understanding of both the benefits and obligations of the parties under the immigration laws. Regardless of whether you represent United States citizen (USC) or the LPR/non-citizen spouse, issues which should be discussed include:

  • The I-864 Affidavit of Support – who and under what circumstances would the beneficiary be able to receive the benefit and who is obligated to pay and to what extent (See Younis v. Farooqi, 597 F. Supp. 2d 552 (D. Md. Feb. 10, 2009); whether the benefit may be waived by a prenuptial or postnuptial agreement; and whether the waiver would protect the USC spouse from the future possibility of a suit for payment from a third party.
  • Immigration implications – if the non-citizen resident spouse is a conditional resident then choosing the proper avenue for the divorce process may be worth considering. For instance, mediation and/or proceeding collaboratively will allow clients to control the separation and divorce timeline which will minimize any adverse implications the divorce process may have on the non-citizen resident’s application to remove conditional residence.
  • Domestic violence – if the non-citizen spouse is the victim of domestic violence then immigration relief options such as the Violence Against Women Act (VAWA) and the U visa should be discussed. If, on the other hand, the non-citizen spouse has been accused of perpetrating the abuse, then he/she should be informed of the repercussions of consenting to a protective order. Interestingly enough, pursuant to the International Marriage Broker Regulation Act of 2005 (IMBRA), even a United States citizen may be affected by the immigration laws under these circumstances. Under IMBRA, if a United States citizen has been convicted of domestic violence, this fact must be disclosed if in the future he/she decides to apply for a visa for his/her foreign fiancée or spouse. This information may then be used by the United States Citizenship and Immigration Services (USCIS) to deny the United States citizen’s visa application.

In addition to the above issues, if children are involved, then passports, visas and custody and visitation issues and how the resolution of these matters may affect the children’s immigration status should also be taken into consideration.

Labor and Employment Law

Form I-9 and E-Verify – the terms sends shudders down everyone’s spines, employers and employees alike. Although every employer is required to complete and retain Form I-9, Employment Eligibility Verification, currently in Maryland, E-Verify is only mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation E-Verify clause. Thus, in addition to dealing with I-9 audits and maintaining policies regarding undocumented workers, employers may have the additional burden of complying with E-Verify.

E-Verify was designed with the purposed of stopping unauthorized employment. If subject to E-Verify, an employer is required to verify an employee’s employment eligibility by submitting the information provided on Form I-9, into a database which then compares the information with data from the U.S. Department of Homeland Security and the Social Security Administration. This sounds simple and workable in concept, but the system is not perfect and how the program has been implemented has created a lot of confusion. For employers and employees, this confusion has come at a cost. Take, for instance, when an employer receives a tentative non-confirmation notice. In the perfect world, the employer is required to inform the employee so that he/she may appeal the non-confirmation. However, when this doesn’t happen, the cost to an employee is a job. A person may find themselves unable to obtain work all because of an error in the database. As for the employer, the cost to the company may come in the form of defending and possibly paying out on a failure-to-hire claim. Worse yet, because employers are not protected against potential discrimination suits, a potential or terminated employee may file a discrimination suit having been denied work based on a flagged E-Verify notification.

In summary, it’s becoming clear that a client’s immigration status should be one of many questions on any client intake form. As complicated as immigration law may be, based on the population statistics, the impact and consequences of immigration law on our clients can no longer be ignored.

Van T. Doan practices immigration and family law in Howard County. She is the MSBA Immigration Section Chair.


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Publications : Bar Bulletin: August 2010

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