INTRODUCTION

1. INTRODUCTION Thanks for inviting me to discuss significant laws relating to non-citizens. I compliment Judge Flores and everyone else responsible for organizing this seminar. Although the Code of Judicial Conduct precludes me from advocating or not advocating for non-U.S. citizens, a survey of significant laws hopefully will assist you. Attitudes toward non-U.S. citizens - fear, outrage, distress, concern, anger; these ABOV’s translate to bias, prejudice, unfairness against both litigant and non-litigant non-citizens, why? Our discussion begins with some definitions.

2. DEFINITIONS Anyone physically here is either citizen or non-citizen. Citizen status: 1) born in U.S.A.; 2) born in U.S. territory (Guam, Panama Canal Zone, Puerto Rico, Virgen Islands); 3) birth to U.S. citizen living abroad with registration at birth; 4) naturalized citizen.

3. NOT CITIZEN - LAWFUL PRESENCE LAWFUL PERMINANT RESIDENT (“GREEN CARD”) IMMIGRANT VISA-HOLDER NON-IMMIGRANT VISA-HOLDER ASYLUM-SEEKER REFUGEE VICTIM OF HUMAN TRAFFICKING OR OTHER CRIME (such as protective order) WORK VISA

4. NOT CITIZEN - UNLAWFUL PRESENCE UNLAWFUL PRESENCE - UNDOCUMENTED WITH NO IMMIGRATION STATUS

5. 42 U.S.C.A. § 1981 “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

6. HB - 2090 written statement signed by an accused criminal defendant must be presented in the language accused understands House Sponsor: Terry Canales (139-4) Senate Sponsor: Chuy Hinojosa (31-0) Takes Effect: Sept. 1, 2013

7. In the Interest of Z.L.T., J.K.H.T. and Z.N.T. Minor Children, 124 S.W.3d 165 (Tex. 2003) ”As a constitutional matter, a litigant cannot be denied access to the civil courts merely because of his status as an inmate” Balancing Test: inmate’s need for access against need to protect the integrity of the judicial system If judge determines that inmate should not be allowed to appear personally, he may still be allowed to proceed by affidavit, deposition, telephone or other legal means

8. In the Interest of E.N.C., J.A.C., S.A.L., N.A.G. and C.G.L., Minor Children, 384 S.W.3d 796 (Tex. 2012) “. . . an immigrant convicted in another state of unlawful conduct with a minor and given a probated sentence years before his children were born was later deported to Mexico. The State relied on these facts in petitioning to terminate this father's parental rights, yet put on no evidence concerning the offense committed years earlier, nor the circumstances of his deportation” “Troxel v. Granville,530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (noting the " extensive precedent" establishing that the Due Process Clause of the Fourteenth Amendment " protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children" ); see also Zadvydas v. Davis,533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (observing that "the Due Process Clause applies to all ‘persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent").”      ”Due process commands that courts apply the clear and convincing evidentiary standard in parental rights termination cases.” “Because the evidence is legally insufficient to support the trial court's order terminating Francisco's parental rights under section 161.001, we hold that the court of appeals erred in affirming the trial court's order as to Francisco “

9. Appointment Of Interpreter(Tex. Gov’t Code Ann. § 57.002 ) (a) A court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court. (b) A court may, on its own motion, appoint a certified court interpreter or a licensed court interpreter.(b-1)A licensed court interpreter appointed by a court under Subsection (a) or (b) must hold a license that includes the appropriate designation under Section 57.043(d) that indicates the interpreter is permitted to interpret in that court. (c) (d) and (e) ommited (relate to counties with certain population that may appoint unlicensed court interpreters)

10. U-VISA CERTIFICATIONINA § 101(a)(15)(u), 8 U.S.C. 1101(a) 15(u) U-VISA authorized by Congress under Violence Against Women Act (VAWA) Citizenship and Immigration Services (USCIS) branch of Department of Homeland Security (DHS) Provides relief for immigrant victims of crime to obtain temporary visa for lawful immigration status 4 statutory eligibility requirements - suffered substantial physical or mental abuse as victims of certain criminal activity - possesses information concerning criminal activity - has been helpful, is being helpful or is likely to be helpful in investigation or prosecution of crime and - victim of criminal activity that occurred in U.S. or violated laws of U.S.

11. T-VISA CERTIFICATION22 U.S.C. § 7101 st. seq. Trafficking Victims Protection Act allows victims of severe forms of human trafficking to obtain immigration status (T-VISA). Temporary non-immigrant visa. T-VISA holder may apply for lawful permanent residence after 3 years Requirements: 1. Victim of severe form of human trafficking. 2. Physically present in U.S.due to human trafficking     3. Comply with reasonable request for assistance in investigating and prosecuting acts of human trafficking. 4. Be exposed to extreme to extreme hardship involving unusual and severe harm upon removal.

12. PROTECTIVE ORDERSTex. Fam. Code, Title 4, Protective Orders & Family Violence, Chapter 81.001 et. seq. Victims of family violence:   1. May obtain protective orders without immigration status just like U.S. citizen. 2. May qualify for relief under federal immigration law with an adjustment of status.

13. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L. Ed. 2d 18 (1976)and Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L. Ed. 2d 640 (1981) FACTORS IN DETERMINING WHETHER TO APPOINT COUNSEL the private interest that will be affected by the official action; the risk of an erroneous deprivation of a private interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

14. APPOINTMENT OF COUNSEL IN CIVIL CASES: 1. Tex. Gov. Code 24.016 Gives district judge the discretion to appoint counsel to a civil litigant who makes an affidavit that he is too poor to employ counsel. 2. Tex. Fam. Code 157.163(b) Where incarceration is a possible result of a contempt proceeding, the indigent respondent is entitled to appointment of counsel. 3. Tex. Fam. Code 107.13(a)(1) Termination of parental rights of indigent parent triggersd statutory right to appointment of counsel. 4. Tex. Fam. Code 51.10(b)(6) Juvenile is entitled to mandatory, unwaivable rights to counsel for discretionary transfer proceedings. 5. Tex. Fam. Code 51.10(f)(2) Indigent Juveniles receive assistance of counsel for appeals. 6. Texas Health and Safety Code 574.003(a) Application for Court ordered mental health services triggers appointment of counsel for proposed patient.

15. Choudhry v. Jenkins,559 F.2d 1085, (7th Circ. 1977) Khalid Choudhry, a Pakistani resident alien, was fired from his occupation as a correctional officer in Michigan City when he made critical remarks about the prison’s administration to the press. A resident alien’s 1st Amendment rights are established and protected by the liberty clause in the 14th Amendment.

16. BRIDGES V. WIXON,326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) Harry Bridges was an alien from Australia who entered the United States in 1920. Deportation proceedings were instituted against him in 1938 on the grounds that he had been a member and affiliated with the Communist Party. First Amendment rights of the freedom of speech and press are granted to aliens who reside in the United States. This freedom protects aliens from false imprisonment as well as deportation.

17. KWONG HAI CHEW v. COLDING,344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953) Chew, a Chinese seaman, admitted to U.S., married a native American, bought a house and resided in New York; proved good moral character for preceding 5 years so he secured suspension of his deportation and admitted as permanent resident. An alien who is lawful permanent resident of U.S. and remains physically present here is a “person” within the meaning of the Fifth Amendment and may not be deprived of life, liberty, or property without due process of law even if his status later altered.

18. Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L. Ed. 2d 478 (1976) 5th & 14th Amendments Protect Every Person in the Country even those "Whose Presence .... Is Unlawful, Involuntary or Transitory.” Constitutional protections against deprivation of life, liberty or property without due process of law extend to aliens.

19. RUSSIAN VOLUNTEER FLEET v. UNITED STATES,282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931) Just Compensation Clause of Fifth Amendment applies to aliens. Petitioner, Russian Volunteer Fleet, was a Russian corporation that was the assignee for the value of contracts regarding the construction of two vessels for a corporation in New York. In accordance with the Act of June 15, 1917 by executive order of the President, the contracts and vessels were requisitioned. Just compensation was valued at $1,412,532.35 for contracts valued at$4,000,000. Government taking property of alien friend by eminent domain must pay equivalent of full value immediately upon taking.

20. Padilla v. Kentucky, 559 U.S. 356, 130S.Ct. 1473 176 L. Ed 2d 284 (2010) Imposes a 6th amendment duty/obligation on trial counsel to inform non-citizen client of the potential immigration consequences of their plea of guilty Clarifies trial counsel’s duty when deportation consequences are truly clear and also when the law is not succinct and straightforward

21. CHAIDEZ v. UNITED STATES,_____ U.S. _______, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013) Held that Padilla v. Kentucky is NOT retroactive Padilla does not apply retroactively to cases already final on direct review

22. WONG WING v. UNITED STATES,163 U.S. 228, 16 S.Ct. 977, 981, 41 L. Ed. 140 (1896) Chinese Exclusion Act imposed imprisonment at hard labor and deportation to Chinese person convicted of unlawful entry to or present in the U.S. Wong Wing was found to be an unlawful alien and was imprisoned and sentenced to 60 days of hard labor followed by deportation. All persons, including resident aliens, within the territory of the United States are entitled to the protections guaranteed by Fifth and Sixth Amendments.

23. JUVENILE CONDUCT AFFECTS IMMIGRATION STATUS8 U.S C – 1182 (a)(2)(a)(c) and (d) Juvenile Adjudication not considered conviction under federal immigration law. “reason to believe” that juvenile involved in trafficking drugs, controlled substances crimes or crimes involving moral turpitude, findings of drug abuse or addiction, or history of sexual offenses. Findings in juvenile case may create grounds for deportation or inadmissibility. Once Juvenile court transfers jurisdiction to district court, immigrant juvenile becomes subject to inadmissible and deportable consequences that adults face.

24. Application of Gault, 387 U.S. 1, 87 S. Ct. 1428 18 L. Ed. 2d 527 (1967) Due process clause of the 14th Amendment requires that in proceeding to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the juvenile has a right to appointed counsel.

25. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) Held unconstitutional Texas practice of refusing to finance education of undocumented children and authorizing school district to exclude them from enrolling in free public schools. Practices repugnant to 14th amendment equal protection clauses which guarantee that no state shall deny any person within its jurisdiction equal protection of law. Guarantees under 14th amendment extend to every person regardless of citizenship or immigration status.

26. YICK WO v. HOPKINS,118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) Yick Wo, a former China native, was imprisoned for operating a laundry business in a wooden building in violation of a San Francisco statute. Yick alleged he was unlawfully deprived of personal liberty and equal protection of the laws of the U.S. The Fourteenth Amendment provides resident aliens with equal protection of the laws.

27. Tyson Foods, Inc. v. Guzman,116 S.W.3d 233 (Tex. App.—Tyler 2003) *Guzman was in the process of rounding up chickens when a Tyson employee ran into him with a forklift causing serious injuries. Because Guzman, an employee of Tyson’s self-contractor, was not a U.S. citizen and unauthorized to work here, Tyson contends that he cannot recover compensatory damages for lost wages. *Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.

28. Republic Waste Services, Ltd. v. Martinez, 335 S.W.3d 401 (Tex. App. – Houston [1st Dist.] 2011, no pet.) Martinez sued RWS, a non-subscriber under Workers Compensation Act, for wrongful death of husband Oscar, an illegal immigrant. T/C excluded evidence of Oscar’s illegal immigration status, ruling that probative value was outweighed by prejudicial effect. Appellate court affirmed, disagreeing with RWS’s argument that Oscar would have been deported due to immigration raids at its facilities.

29. TXI Transportation Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010) Hughes SUV crashed with TXI truck driven by Rodriguez, an illegal immigrant. Everyone in Hughes vehicle died except for one passenger. Survivors and estate of occupants of Hughes vehicle brought wrongful death and survival action against driver, her employer and truck owner. Trial judge allowed evidence of Rodriguez’ immigration status and misrepresentation of that status. TXI objected as to relevance and that said evidence was highly prejudicial. Held: Reversed and Remanded. Allowing evidence for impeachment as prior inconsistent statement and as specific instance of conduct attacking credibility amounted to impugning character of the basis of immigration status.

30. I.N.S. v. LOPEZ-MENDOZA,468 U.S. 1032, 104 S. Ct. 3479, (82 L. Ed. 2d 778 (1984) * Respondent was arrested in San Mateo, Cal. by an INS agent with no warrant for arrest or a warrant to search. Deportation proceeding is a purely civil action to determine eligibility to remain in U.S.; immigration judge’s sole power is to order deportation. * The 4th Amendment exclusionary rule does not apply in deportation hearings.

31. U.S. v. VERDUGO-URUQUIDEZ,494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222, 1990 U.S. LEXIS 1175, 58 U.S.L.W. 4263 (U.S. 1990) * 4th Amendment protection is limited to a class of people defined as “persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community.” The 4th Amendment does not extend to a place within Mexico unless these conditions are met. D.E.A. agents working with Mexican police searched Mexican residences and seized documents. Defense argued that motion to suppress evidence should be granted because, like the 5th and 6th Amendments, he was entitled to 4th Amendment protection.

32. HOFFMAN PLASTIC COMPOUNDS, INC. v. NLRB , 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271, 2002 (U.S. 2002) National Labor Relations Board awarded back pay to undocumented alien who was never authorized to work in U.S. Federal immigration policy, expressed by Congress in Immigration Reform and Control Act of 1986 (IRCA), foreclosed award of back pay to an undocumented alien who has never been legally authorized to work in the United States.

33. U.S. v. PORTILLO-MUNOZ, 643 F.3d 437, (5th Cir. 2011) Illegal alien convicted of unlawfully possessing firearm allegedly used to protect chickens at ranch from coyotes. Federal statute protects aliens to possess firearms. 18 U.S.C. 922(g)(5) Protections contained in Second Amendment do not extend to aliens illegally present in the United States. Case of first impression: Constitution does not prevent Congress from making laws that distinguish between citizens and aliens and between lawful and illegal aliens.

34. CONCLUSION Statutes, case law and even public policy favor allowing all persons who physically reside in the U.S. access to courts, including family law courts. Laws protect immigrants and immigrant victims of family violence, especially victims of domestic violence and child abuse or neglect. Documented and undocumented immigrant can easily establish residency requirements for family court jurisdiction and venue for access to the courts.