The World at Home
How immigration law impacts you and your clients
By Tilman Hasche
Hardly a day passes without some mention in the media of immigration-related matters: the U.S. Immigration and Naturalization Service, proposed changes in immigration laws, or some real or perceived injustice involving immigrants.
Elian Gonzalez; the INS and Portland International Airport; the treatment of foreign business visitors at our borders; incarceration of asylum-seekers pending adjudication of their claims; deportation — or threatened deportation — of long-term legal residents, even Vietnam veterans, based on age-old convictions; heavy-handed enforcement by border patrols. Issues such as these continually bring immigration to the public’s attention.
At the same time, these issues also are making themselves felt in the law practices of attorneys far removed from the world of international commerce, the media or politics. One reason: population and economic growth and Oregon’s position on the Pacific Rim. Oregon now 'is a more cosmopolitan state,' says Philip Hornik, a Portland attorney who has practiced immigration law since 1977. 'There are more foreign-born people in the state, more people seeking some kind of status, more running afoul of the law.'
Michael T. Muniz, a Salem immigration lawyer who has practiced in Oregon since 1978, says: 'The last 10 to 15 years I really have seen an increase and change in the number of people coming to Oregon. Not just from Mexico, but Indochina, Africa, Haiti, Japan, Canada — people from all over the world who want to come to Oregon. This makes it a lot more difficult for not only immigration attorneys, but the entire bar, to represent individuals, because they have to recognize the immigration laws and consequences.'
In addition, the explosive growth of the high-technology industry in the state has meant a demand for attorneys who have expertise in immigration laws and how they affect businesses. 'The high-tech companies are trying to fill their work slots for computer engineers,' says Robert W. Donaldson, an immigration lawyer with Black Helterline in Portland. 'There is a short supply of engineers in the United States that are U.S. citizens. Most companies will look to foreign countries for brainpower.'
Immigration law is convoluted, extraordinarily complex and ever-changing. It is hard enough for the specialists to keep up with it, yet attorneys in general practice or in other specialty areas are likely to come across cases that are affected by immigration law. The repercussions of the law are not the same as they were as recently as five years ago; so it behooves all attorneys to obtain some basic knowledge about this area.
For example, a client could be facing a very minor charge that may have major consequences for his or her immigration status. At least some district attorneys are still under the impression that the INS doesn’t deport people. But in Oregon, the INS deports a lot of people. This is serious stuff.
Big changes have happened in the last four years, after Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This law dramatically altered actions lawyers and judges can take. 'The ’96 law created a lot of business, but it has not made us happier, because of the complexities of the law,' says Hornik. 'The number of offenses and deportation proceedings increased greatly, and we spend more time analyzing.'
'It has limited what we as deportation specialists have been able to do,' explains Muniz. 'It just opens up more crimes that are deportable. Criminal defenders have to learn immigration law as an added consequence. I don’t believe a defender can represent a client ethically unless they do their homework about what deportation might mean.'
When an alien — a person who is not a U.S citizen or national — is accused of a crime, the consequences for his being able to remain in the country if he pleads or is found guilty may be far more important to him than whether he has to pay a fine, do community service or serve jail time.
To illustrate, let us take a hypothetical example. A Canadian who has permanent residence in the U.S. marries a Mexican woman who is awaiting permanent status. One night the couple has a spat, and the woman throws a glass of water at her husband and leaves a scratch mark on his face. The neighbors call the police, and the D.A. decides to prosecute the woman for assault. Her attorney tries to get the charge reduced to a Class B misdemeanor, for harassment.
But under immigration law, a crime of domestic violence is considered a crime of moral turpitude that could lead to deportation. (All of the following can be the basis for deportation: any crime of domestic violence, even without any physical injury; a crime of stalking; child abuse, child neglect or child abandonment; and any violation of a restraining order.) Conviction even on the misdemeanor of harassment could lead to the defendant’s being inadmissible or deportable. Instead of getting the charges 'lowered' to harassment, her attorney could negotiate with the D.A. to charge this as disorderly conduct or some other crime that may potentially allow the D.A. to impose punishment without deportation. Nowadays, when an alien is accused of a crime, that alien had better seek out good immigration advice.
'Most defenders have, or had, the belief that only the drug traffickers were deported,' adds Muniz. 'That’s completely not true. I think many criminal defense attorneys are not aware' that a domestic violence case can be a basis for deportation, 'even if a person has a history in the U.S. and has kids here.'
Muniz notes that a majority of his deportation cases result from clients who have gone to the INS and applied for citizenship, only to be arrested because of some criminal charge perhaps 10 or more years before. Muniz tells of a client of Russian descent who went to the INS eight years after serving a three-year term for assaulting his wife. At the time of his release, the client was not subject to deportation. But when he applied to become a citizen, the 1996 law barred him from relief retroactively, for the remainder of his life, and he was subject to being deported.
Prosecutors, defenders and judges all need to understand the consequences of the 1996 law, he says, if protecting the public is the goal. The prosecution should consider whether, if a conviction for domestic violence results in not just the defendant’s, but the entire family’s, having to return to their native country, the court is really protecting the family and the public from domestic violence. How charges are brought may 'leave the judge with no discretion,' says Muniz. 'The end result may be not what any of the three parties wanted.'
In a family law context, let us use another example a lawyer might encounter. A couple — he is a U.S. citizen, she is a resident with a conditional permit — has a child. They subsequently hit turbulence in their marriage. The husband is the principal caregiver while the wife is a computer executive and the main breadwinner. Her income is based on her being able to remain here, which has been dependent on her being married to him. The court is unlikely to give her custody, because he has been the primary caregiver of the child. He may be angry with her, but he doesn’t want her deported. As a lawyer, you have to analyze what different courses of action will have on their status.
Foreigners who enter the country on a student visa can present special complications for an attorney. As an example, a student enters the country with student status, then finishes school and remains in the country illegally, working for several years. Now an employer files a petition for her to remain legally, to obtain permanent 'green card' status. In some cases, the employee might have to leave the country to apply. If she is subject to grounds of inadmissibility, perhaps she has a relative here who can make it possible for her to apply as having a qualifying relative who will suffer extreme economic or psychological hardship if the employee is not admitted.
Immigration law can impinge on any type of business. Businesses that rely extensively on alien workers — agriculture, service industries such as motels and restaurants, etc. — often have difficulty finding American workers willing to take the jobs. But these businesses must use caution. On the one hand, it is illegal to hire undocumented employees, but on the other, employers can incur civil liability for immigration-related employment discrimination if they inappropriately interview potential employees concerning their documentation.
Recruitment of foreign workers can present many hidden problems. If a large high-tech company wants to recruit, say, a Russian or Indian engineer who is outstanding in his field, the employer will petition to have that person brought in. But the potential employee, his wife or someone in his family may have committed a crime years before. Or, suppose the person’s wife used to be a member of the Communist Party. Or one of their children has AIDS. All of these scenarios could render the person inadmissible. At the very least, the parties would have to file for a waiver of admissibility.
Plainly, immigration is a specialized and difficult area of the law. Immigration law has aptly been described as 'legislative draftsmanship that would cross the eyes of a Talmudic scholar.' Moreover, there are many conflicting and constantly changing sources of authority. It is easy in that context to cast blame on the INS, as the principal agency charged with administering this law, for the sometimes illogical and seemingly inhumane results its enforcement efforts sometimes create. However, Congress, not the INS, wrote the immigration laws, and Congress must bear the lion’s share of the blame for any shortcomings.
The law invests the INS with enormous discretion to interpret, administer and enforce a complicated, often contradictory, and in many places, draconian, statute. The more the public at large and the general bar become aware of, and come to grips with, this legal structure, the greater the possibilities for rational and humane changes in the law, and the greater the chances for intelligent oversight of the INS and its exercise of discretion. +
ABOUT THE AUTHOR
Tilman Hasche is a partner with the firm of Parker, Bush & Lane in Portland whose practice focuses mainly on immigration law. Portland-area free-lance writer Cliff Collins contributed to the research and writing of this article. Hasche has prepared a summary of immigration law that explains the conceptual framework of the law for attorneys dealing with the subject for the first time. Contact Hasche at (503) 241-1320 or firstname.lastname@example.org to obtain a copy.