How Does Immigration Law Today Affect Your Domestic Law Practice?
| Publication year | 2003 |
| Pages | 16-26 |
| Citation | Vol. 72 No. 5 Pg. 16-26 |
72 J. Kan. Bar Assn. 5, 16-26 (2003). How Does Immigration Law Today Affect Your Domestic Law Practice?
72 J. Kan. Bar Assn. 5, 16-26 (2003)
I. Introduction
The Chinese Exclusion Act of 1888[1] was America's first law restricting immigration by race or nationality to the United States. The USA PATRIOT Act of 2001,[2] and the Homeland Security Act of 2002[3] are the latest government efforts to tighten restrictions on aliens both present or entering the United States.
Between 1888 and 2003, we have seen several dozen new laws, amended laws, repealed laws, and the development of extensive case law interpreting, challenging and occasionally nullifying these laws. Along with the concept of national security, family unity and job protection traditionally have been the basic principles underpinning America's immigration policy. These laws are interpreted and enforced by multiple departments and agencies that have issued several thousand agency regulations, case decisions, General Counsel legal opinions, cables, wires, memos, letters, field manuals, operating instructions, handbooks, and executive orders - often overlapping, interweaving and creating confusion and contradictions for immigration practitioners.
Immigration attorneys may appear undaunted by the Gordian Knot that is immigration practice in America.[4] In truth, however, it is an often-frustrating practice fraught with an amazing array of opportunities for attorney missteps. The practice of immigration law intersects with just about every other possible practice area and no one attorney can ever claim to have mastered every aspect of it.
The Immigration and Nationality Act, passed in 1952 and amended many times since, is a hideous creature. Its hundreds of pages contain highly technical provisions that are often hopelessly intertwined. That high degree of inter-relationship makes it difficult to separate the law into discrete components that can be comprehended by newcomers without frequent cross-references and asides.[5]
As one can imagine, immigration law is only rarely amenable to Alexander's sword.
Rather than attempt an immigration law survey of biblical proportions, this article will first provide a very brief overview of the changes affecting non-citizens and immigration practice as recently enacted by the USA PATRIOT Act and the Homeland Security Act. The balance of this article will focus on one of the main practice areas most critically impacted by immigration laws - domestic and family law practice. The author hopes to dispel common myths, warn of malpractice pitfalls, and offer useful resources for further information and research.
As always, however, it is incumbent upon the attorney to read the law, regulations,[6] and applicable agency rulings and case law[7] and - more importantly - to know when to call upon an expert in the particular area of immigration law affecting the matter at hand. Your alien client's life, liberty, and pursuit of happiness are often at issue in any immigration matter.[8]
Future KBA Journal articles will provide highlights of concern to the criminal defense bar and to attorneys practicing corporate and business law. While an in-depth analysis as to the ever-changing aspect of criminal defense of non-citizens is the subject of entire treatises, the future articles will offer resources for expert referrals. Those Kansas practitioners seeking immediate guidance should contact this author who, although no such expert, can refer the attorney to guidance sources.[9]
II. Current Developments in Immigration Law
As of March 1, 2003, the Immigration and Nationality Service within the United States Department of Justice ("INS") ceased to exist. The Homeland Security Act of 2002, in creating the Department of Homeland Security ("DHS") split the INS functions into several different areas, placing all of the INS responsibilities within the newly created DHS. The services and benefits functions are now under the Bureau of Citizenship and Immigration Services ("BCIS"). Splitting this function away from the enforcement areas of investigation and deportation had already been seriously contemplated by Congress.[10]
This has made perfect sense to those of us who practice immigration law - responsibility for finding and deporting non-citizens while simultaneously adjudicating their rights to benefits under the law has always presented an inherent conflict to the minds of immigration practitioners and advocates.
Briefly, the other Bureaus now found under the DHS Undersecretary for Border & Transportation Security have assumed the responsibilities of the now abolished INS. These are: the Bureau of Customs and Border Protection (including Investigations, Detention and Removal)[11] and the Bureau of Immigration and Customs Enforcement (including Border Patrol and Port Of Entry Inspections). The Executive Office for Immigration Review retains the Immigration Court and appellate function of the Board of Immigration Appeals and remains within the U.S. Department of Justice. This Office conducts the removal (deportation) hearings and issues the deportation orders for aliens within the United States.
It is expected that no significant change will occur in the short term regarding benefit administration during the anticipated year-long transition period. For the time being, offices and staff, as well as low to mid-level chain of command remain unchanged. The caveat however, is that the surveillance, investigation, detention, and deportation of non-citizens has intensified both by statute and by practice under the new conglomeration of functions that is the Department of Homeland Security.
Of critical note this year is the new statutory requirement that all nonimmigrant males born on or before December 2, 1986, who were last admitted to the United States on or before September 30, 2002, and who intend to remain in the U.S. beyond a specified brief visit (depending on which country) must "register" with the INS/now BCIS. The list of countries has expanded in four regulatory rollouts and is expected to eventually include many more countries, friendly or not. At press time the list includes 25 countries.[12] Certain exceptions apply, and after a somewhat infamous start, the process seems to have settled into a more systematic and rational approach.[13]
The goal of the DHS "Special Registration" is to now actually track who is here, why, and what, if any, terrorist connections the individual might appear to have. "Willful failure" to register or to provide full and truthful information requested is a deportable offense.[14] Note that persons not legally admitted to the U.S. have no such requirement.[15]
Registrants are informed as to how often they must re-register (from monthly to yearly), depending on certain discretionary factors. These registrants must depart the U.S. only at certain ports in order to document their exit. Not all such males present in the U.S. must register. The main exemptions include persons who have not entered the U.S. legally and those who are already Lawful Permanent Residents (with "green cards"), or who have applied for asylum benefits.
Up-to-date information about the specifics of Special Registration can be found at the BCIS web site: www.immigration.gov. The site is well-designed and easy to use. A complete overview of current DHS organizational changes is also outlined there. In addition, this site has an abundance of information about benefits, forms, and locations. While the BCIS toll-free telephone help line is available, a strong word of caution is necessary regarding the accuracy of the information provided by the contract employees.
For the best starting places for research and resources for the non-immigration attorney, both the American Immigration Lawyers Association[16] and the National Lawyers Guild National Immigrant Project[17] keep the public and legal profession well informed as to recent changes and issues of controversy surrounding the USA PATRIOT Act and its progeny.
III. Domestic Practice Issues Most Affected by Immigration Law
A cursory understanding of who is affected by immigration laws and regulations is the first thing any attorney needs to know. If your first question to your new domestic practice client is not "Where were you born?" you may be committing malpractice in your initial consultation. Your intake questionnaire should always include this question. The rule here is simple: Any person who is not a citizen of the United States, by birth, naturalization, or derivation is an alien under U.S. immigration law. This includes Permanent Residents who are also known as persons with "green cards."[18]
Different rules apply to aliens depending on their legal status, or lack thereof, in the U.S. and the family practice attorney must be careful in advising clients who are aliens or who are married to an alien. Aliens may easily appear and speak as if U.S.-born or may even believe they are citizens, having been brought to America as a young child and told so by their parents.[19]
A. Common Myths and Malpractice Pitfalls in Domestic Practice
A few of the main points to be considered in your family practice include matters of alien clients and marriage, adoption, domestic violence, divorce, and, most importantly, international parental kidnapping.
Myth#1: Marry a U.S. Citizen and You are Home Free.
This common misconception has trapped many unsuspecting citizens and their spouses, usually only after they have attempted to return from outside the U.S. border. Several of my clients with this problem had only sought the advice of an immigration attorney after they found themselves stopped upon return to the U.S. when the inspectors discover the alien's...
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