Overview of Immigration Issues

Slide 1:Overview of Immigration Issues Related to:Family, Criminal, Business and Employment Law

Washington County Continuing Legal Education Program Washington County Law Library April 28, 2010   Julie A. Roorda Ballou Law Partners www.balloulawoffice.com & Royee Vlodaver Vlodaver Law Offices, LLC www.vlodlaw.com

Slide 2:Basic Immigration Terminology

Alien Immigrant Permanent Resident Nonimmigrant Department of Homeland Security – CIS, ICE, CBP Removal = Deportation

Slide 4:Employers

Form I-9 (Employment Eligibility) Must establish both identity and employment authorization Can accomplish both with one document: U.S. passport Resident alien or alien registration card Foreign passport or immigrant visa (with I-551 stamp) Form I-766 (Employment Authorization) (3) Definition of unauthorized alien As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General. (3) Definition of unauthorized alien As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

Slide 5:Employers

May establish each requirement individually 1) Establishing identity: Driver’s license ID card (with picture) issued by federal, state or local government School ID Voter registration card U.S. military card A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine.

Slide 6:Employers

May establish each requirement individually 2) Establishing employment authorization: Social Security Account Number card Certification of Birth Abroad (Form FS-545) or Report of Birth (Form DS-1350) Birth certificate (original or certified copy) U.S. citizen ID card (Form I-197) or resident citizen in U.S. ID card (Form I-179)

Slide 7:Employers

Must retain for period of: 3 years following date of hiring, OR 1 year after employment is terminated, whichever is later 8 U.S.C. § 1324a(b)(3)-(4) Must retain (physical or electronic): Form I-9 – signed/attested to by employee; AND Supporting documents – identity and employment authorization 3) Retention of verification form After completion of such form in accordance with paragraphs (1) and (2), the person or entity must retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending— (A) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and (B) in the case of the hiring of an individual— (i) three years after the date of such hiring, or (ii) one year after the date the individual’s employment is terminated, whichever is later. 3) Retention of verification form After completion of such form in accordance with paragraphs (1) and (2), the person or entity must retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Service, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending— (A) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and (B) in the case of the hiring of an individual— (i) three years after the date of such hiring, or (ii) one year after the date the individual’s employment is terminated, whichever is later.

Slide 8:Employers

Good faith compliance “[C]onsidered to have complied … if there was a good faith attempt to comply with the [I-9] requirement” Expressly provides affirmative defense 8 U.S.C. § 1324a(a)(3), (b)(6)

Slide 9:Employers

Received notification of violation; Was given a period of time to correct noncompliance (not less than 10 days); and Failed to voluntarily comply within that period “[H]as or is engaging in a pattern or practice” of violation 8 U.S.C. § 1324a(b)(6)(B)-(C) Good faith exceptions – waived if employer:

Slide 10:Employers

Federal Immigration Reform and Control Act of 1986 (IRCA) Unlawful for “a person or other entity” to “hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien” 8 U.S.C. § 1324a (a)(1)-(a)(1)(A)

Slide 11:Employers

“Hired” includes use of a “contract, subcontract, or exchange” to obtain the labor 8 U.S.C. § 1324a(a)(3) Unlawful “to continue to employ” an alien that has become unauthorized 8 U.S.C. § 1324a(a)(2) **NOTE*** Doesn’t apply to Independent Contractors - The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section; **NOTE*** Doesn’t apply to Independent Contractors - The term employee means an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section;

Slide 12:Employers

Knowledge – may be actual or constructive Constructive: if fairly inferred from facts and circumstances 8 C.F.R. § 274a.1 Examples of constructive knowledge: Improperly completed I–9 Information indicating unauthorized to work (e.g., Labor Certification, Application for Prospective Employer) Acting with “reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf” 8 C.F.R. § 274a.1

Slide 13:Employers

Must avoid discrimination Cannot base employment decisions on factors not related to employment authorization Cannot infer unauthorized status based on “foreign appearance or accent” or national origin 8 C.F.R. § 274a.1; 8 U.S.C. § 1324b(a)(1) (2) Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.(2) Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.

Slide 14:Employers

Penalty for IRCA violations: Cease and desist order Civil penalties Criminal penalties “[O]ther remedial action as is appropriate” 8 U.S.C. § 1324a(e)(4)(B)

Slide 15:Employers

Criminal penalties: If engaging in a “pattern or practice” of violating the Act Up to $3,000 per unauthorized alien; imprisonment for no more than six months (total); or both 8 U.S.C. § 1324a(f) Civil penalties: 1st offense: $250 – 2,000 Each unauthorized alien “hired” or employed 2nd: $2,000 – 5,000 3rd or more: $3,000 – 10,000 8 U.S.C. § 1324a(e)(4)(A)

Slide 16:Starting a Business

Basic requirement for forming a corporation or LLC (limited liability company) in MN Must be “natural persons of at least 18 years of age” Minn. Stat. § 302B.105 (incorporators of a corporation) Minn. Stat. § 322B.105 (organizers of an LLC) MN does not specifically require any particular citizenship or immigration status in order to form a business entity

Slide 17:Starting a Business

Only express citizenship requirement is for S corporations Internal Revenue Code: S corporations prohibited from having any nonresident aliens as shareholders 26 U.S.C. § 1361(b)(1)(C) No other MN or IRC provisions restricting citizenship of shareholders or owners of other business organizations Implication: no citizenship requirements

Slide 18:Starting a Business

HOWEVER* Potential concerns if a business partner (e.g., shareholder, LLC member) is an alien. Brd. of Governors? Brd. of Directors? IRCA: harboring, concealing, or shielding? Is the alien an “employee”? Employee: “an individual who provides services or labor for an employer for wages or other remuneration but does not [include] independent contractors” - 8 C.F.R. § 274a(1) Generally, LLC members are not considered employees – unless actually employed by the LLC Other concerns: taxation, disclosures, fraud

Slide 19:Business Issues

The most common businesses we deal with that have such potential employment issues are family owned/operated businesses in the food/vending/service industry. Implications for vendors? Implications for customers? Many times no business insurance Many times no contracts Many times no entity

Slide 20:Landlord/Tenant

Can a landlord check immigration status Can you choose not to rent to non-citizens, illegal immigrants Subsidized housing vs. Private housing Penalties for declaring you are a citizen on a rental application Landlord considerations – commercial v. residential

Slide 21:Landlord/Tenant

Numerous U.S. municipalities have enacted ordinances prohibiting leases to illegal aliens… However, Federal courts have consistently invalidated them Unconstitutional and preempted by Federal law No MN municipalities have enacted such ordinances.

Slide 22:Landlord/Tenant

Immigration Reform and Control Act (IRCA) may also govern landlord/tenant relationships Crime for any person who “conceals, harbors, or shields from detection” an illegal alien Requires knowledge or “reckless disregard of the fact” that he/she is an illegal alien Includes: attempting, aiding or abetting, and conspiracy to commit 8 U.S.C. § 1324(a)(1)(A)(iii)

Slide 23:Landlord/Tenant

Criminal penalty – concealing, harboring or shielding from detection (or, aiding or abetting) Fines (unspecified); up to 5 years imprisonment; or both 8 U.S.C. § 1324(a)(1)(B) Conspiracy to commit or committing such acts with the “purpose of commercial advantage or private financial gain” Fines (unspecified); up to 10 years imprisonment; or both 8 U.S.C. § 1324(a)(1)(B)

Slide 24:Landlord/Tenant

Jurisdictions have decided “harboring” cases vastly differently, yet few have described “substantial facilitation” Apparent lack of clarity on the issue Highly dependent on the particular facts and circumstances of the situation Interpretation in other jurisdictions: Third Circuit: mere cohabitation or reasonable control of the premises is not harboring U.S. v. Cuevas-Reyes Fifth Circuit: affording shelter tends to substantially facilitate an alien’s remaining in the country, thus constitutes harboring U.S. v. Balderas Interpretation in other jurisdictions: Third Circuit: mere cohabitation or reasonable control of the premises is not harboring U.S. v. Cuevas-Reyes Fifth Circuit: affording shelter tends to substantially facilitate an alien’s remaining in the country, thus constitutes harboring U.S. v. Balderas

Slide 25:Landlord/Tenant

Desire to avoid IRCA violations results in difficulties in avoiding discrimination Title VIII of the Civil Rights Act of 1968 – Fair Housing Act (FHA) Unlawful to discriminate against “any person because of race, color, religion, sex, familial status, or national origin” 42 U.S.C. § 3604

Slide 26:Landlord/Tenant

U.S. Supreme Court National origin: country where a person was born, or where a person’s ancestors came from “Congress did not intend the term ‘national origin’ to embrace citizenship requirements” Espinoza v. Farah Mfg. Co., Inc. (interpreting national origin in the employment context) Several federal district courts (relying on Espinoza) Housing discrimination/decisions based on citizenship is legally permissible Examples of discrimination in housing: Refusal to sell or rent property; Refusal to negotiate for sale or rent; Discrimination in terms or conditions; Misrepresentation of certain facts; “[O]therwise make unavailable or deny” a dwelling 42 U.S.C. § 3604 Examples of discrimination in housing: Refusal to sell or rent property; Refusal to negotiate for sale or rent; Discrimination in terms or conditions; Misrepresentation of certain facts; “[O]therwise make unavailable or deny” a dwelling 42 U.S.C. § 3604

Slide 27:Landlord/Tenant

2001, U.S. Department of Housing & Urban Development (HUD) confirmed this notion “The [FHA] does not prohibit discrimination based solely on a person's citizenship status. Accordingly, asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act.” *NOTE, Landlords typically mess things up. Many landlords are in violation of municipal, city, or state ordinances. Need to have permit, many landlords don’t. St. Paul example. They should not worry about asking these questions however. In fact, it is a very prudent question to ask. *NOTE, Landlords typically mess things up. Many landlords are in violation of municipal, city, or state ordinances. Need to have permit, many landlords don’t. St. Paul example. They should not worry about asking these questions however. In fact, it is a very prudent question to ask.

Slide 28:Landlord/Tenant

Subsidized housing To qualify for federally subsidized housing an individual “must be a citizen or a non-citizen who has eligible immigration status.” 24 C.F.R. § 982.201(a) Citizenship restrictions relating to subsidized housing apply to financial assistance under: Section 235 Program, Section 236 Program, Rent Supplement Program, HUD’s Public Housing, Section 8 Housing, Housing Development Grant Program Landlords may have to go through vetting during this process. Landlords may have to go through vetting during this process.

Slide 29:Landlord/Tenant

Ability to make housing decisions based on citizenship status is the same for private and subsidized housing HUD: “In fact, such measures [to determine citizenship] have been in place for a number of years in screening applicants for federally-assisted housing.” Landlords of either private or subsidized housing may inquire about citizenship status and consider this information in making its rental decisions

Slide 30:Landlord/Tenant - Review

Can a landlord check immigration status? Yes. Can you choose not to rent to illegal immigrants? Yes. Subsidized housing v. private housing? Same treatment. Commercial v. residential? Same treatment. Penalties for declaring citizenship on rental application? None. It can be considered in landlord’s decision.

Slide 31:Immigration and Family Law

Practice Tips, Common Scenarios and What To Watch Out For

Slide 32:Domestic Abuse

U Visas – Victims of Serious Crimes VAWA T Visa – Human Trafficking Other issues

Slide 33:Immigration and Criminal Law

Padilla v. Kentucky, March 31, 2010 Key Points for Criminal Defense Attorneys Deportation is a “penalty,” not a collateral consequence” of the criminal proceeding The 6th Amendment requires affirmative, competent advice regarding immigration consequences – silence is insufficient. Court endorsed “informed consideration” of deportation consequences by both the defense and prosecution during plea bargaining.

Slide 34:General Information

“Conviction” for immigration purposes = formal judgment of guilt entered by court, found guilty but adjudication withheld, plea of guilty or nolo contendre and person has admitted sufficient facts to warrant judgment of guilt Term of imprisonment includes suspended time A juvenile court disposition is not a conviction for immigration purposes Crimes include conspiracy and attempt to commit

Slide 35:Removable Offenses

Crimes of moral turpitude committed within five years (or 10 years if LPR) after the date of admission, and sentence of one year or longer may be imposed. Crime of Moral Turpitude = Crime that is inherently base, vile or depraved and contrary to the excepted rules of morality. Multiple criminal convictions - any time after admission, two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. Aggravated felony (Note: life time bar to reentry) - Any alien who is convicted of an aggravated felony at any time after admission is deportable. DHS definition of “aggravated felony” can and often does differ from state and federal criminal statutes

Slide 36:Removable Offenses

Rape Murder Sexual abuse of a minor Crimes of violence (imprisonment of 1 year or mores Drug and firearms trafficking Money laundering Structuring money transactions derived from unlawful activity Theft offenses (imprisonment of 1 year or more) Gambling offenses Offense involving fraud or deceit in which loss to victims exceeds $10,000 Tax evasion where the revenue loss to govt exceeds $10,000 Commercial bribery (imprisonment of 1 year or more) High speed flight from an immigration checkpoint Failure to register as a sex offender

Slide 37:And the list continues….

Controlled substances convictions other than a single offense involving possession for one's own use of 30 grams or less of marijuana Drug abusers and addicts Firearm offenses Domestic violence crimes, stalking, violation of protection order, crimes against children (abuse, neglect, abandonment) Waiver for victims of domestic abuse – not limited to criminal court record (self-defense) Espionage Sabotage Treason Failure to register (Change of Address within 10 days) Falsification of documents - fraud and misuse of visas, permits, and other entry documents

Slide 38:And Continues….

Falsely claiming citizenship Public safety and natural security grounds, terrorist activities Participation in nazi persecution or genocide Serious violations of religious freedom Public charge Unlawful voters

Slide 39:Thank you!

Julie A. Roorda Ballou Law Partners Minneapolis 612-321-9800 JRoorda@Blackhole.com & Royee Vlodaver Vlodaver Law Offices, LLC Saint Paul 651-690-9906 Royeev@vlodlaw.com Special Thanks To Peter Banick, William Mitchell 1L, Law Clerk, Vlodaver Law Offices, LLC