The Only Thing Every Consumer Lawyer Needs to Know About Immigration Law

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Although decided over a decade ago, Rodriguez v. Kline, 186 Cal. App. 3d 1145, (1986) is still the lead case in California regarding immigration status and its relevance to a plaintiff’s claim for damages in a personal injury context. The so-called “illegal alien” defense may be raised at trial in limine to obtain a determination as a matter of law that plaintiff is an undocumented alien who is not legally allowed to be employed in the United States. If the Court makes such a determination, the finder of fact must apply the wage scale appropriate in the plaintiff’s native country, which can be considerably less than in the United States. Thus, plaintiff’s claim for diminished earnings can be substantially reduced.

Prior to the California Court of Appeal for the Second District’s decision in Rodriguez, the law was somewhat split. In Metalworking Machinery, Inc v. Superior Court , 69 Cal. App. 3d 791, (1977) which dealt with discovery issues, it was established that a plaintiff’s legal status was discoverable where future wage loss was an issue. However, in Clemente v. State of California, 40 Cal. 3d 202, (1985) the California Supreme Court approved of the trial court’s ruling excluding proffered evidence of plaintiff’s citizenship (or rather, lack of legal immigration status in the United States) as speculative, remote and hence irrelevant to the damage issue under Evidence Code Section 352. There was no evidence that the plaintiff intended to leave the United States and the court concluded it was speculative to presume that he might be deported sometime in the future. It also concluded that any testimony by plaintiff’s wife regarding her husband’s immigration status, assuming she was even competent to testify, would be “highly prejudicial”.

In Rodriquez the Court of Appeal set out a method for determining the “illegal alien” defense:

“We are convinced the competing concerns expressed in Clemente can best be reconciled by treating any question regarding a plaintiff’s citizenship or lawful place of residence as one of law, to be decided exclusively by the trial court outside the presence of the jury. Resolution of this question is, of course, prerequisite to any ruling upon the admissibility of evidence regarding future earnings.

Today we require our jurors to perform such intellectually Herculean feats as establishing what actions a truly reasonable man might have taken in a given situation, fixing the appropriate price to be paid for a described amount of subjective pain and anguish, weighing in comparative balance varying degrees, and even dissimilar types, of fault, etcetera, etcetera. Difficult as these labors may be, they nonetheless are of the rheostat variety in that any answer selected necessarily will fall within the applicable range and be capable of finding support in the evidence, i.e., a percentage of fault between none and total; damages in a sum between nothing and millions. However, one’s citizenship is comparable only to an on-off switch; a person either is subject to deportation or he is not. If he has been injured through the fault of another, his recovery should not be raised or lowered based upon the probabilities that the law’s commands actually will be carried out in any particular instance.

Therefore, whenever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. (See Evid.Code, s 310.) At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation. If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court’s satisfaction that he has taken steps which will correct his deportable condition. A contrary rule, of course, would allow someone who is not lawfully available for future work in the United States to receive compensation to which he is not entitled. “

If only it were that simple. There are tomes of treatises and over a century of stare decisis on the very issue of who is subject to deportation from the United States. The labyrinth of regulations and the hodge-podge of contradictory statutory amendments that comprise our immigration law are considered by many to be one of the most complex areas of federal legislation. Given that tens or hundreds of thousands of dollars of potential future earnings may be dependent on the success or failure of the “illegal alien” defense, it is important for counsel to understand that concepts of citizenship and deportability are subject to interpretation.

The Rodriguez Test

The Rodriquez court sets up as the touchstone for future earnings based on U.S. standards and the plaintiff’s eligibility to avoid deportation. However, there are many permanent residents (i.e. aliens who have so-called “green cards”), who are deported each year for various reasons, often times related to criminal activity. Also, under the Marriage Fraud Act of 1986, permanent residency based on a marriage is conditional and must be renewed after two years. Contrarily, there are many aliens who are living in the United States on temporary “nonimmigrant visas”, who are allowed to work here under various restrictions. In many cases their authorization can be extended up to five years and in some cases, indefinitely. Finally, there are many foreigners who are in limbo, those who are permitted to stay and work here for a limited period of time, but who may later qualify for permanent residence. This group includes people granted so-called “amnesty” or those who apply for asylum. Thus, it is not enough to know whether the plaintiff has his or her “green card.” Much can be done by an alien to legally avoid deportation short of becoming a permanent resident. However, since many benefits under the Immigration & Nationality Act can take several months to many years to perfect, legal action should be taken promptly.

 Some Basic Definitions

 Under the Rodriguez Test the Courts are going to focus on the issue of deportability and eligibility for discretionary relief. Knowledge of a few basic definitions is essential. First, an “alien” means any person who is not a citizen or national of the United States, section 101(a)(3) of the Immigration and Nationality Act, (8 U.S.C. 1101 et.seq., hereinafter referred to as “I.N.A.”). This becomes important when one considers that there is a small but significant group of people who, although born abroad or raised abroad, may claim U.S. citizenship by birth in the United States or through ancestry. Often times the problem is that these individuals have no proof of their U.S. citizenship and applications to the Immigration and Naturalization Services (I.N.S.) or U.S. Passport Office may be very time consuming. Nevertheless, a bona fide claim to U.S. citizenship cannot be overlooked. Citizens are not deportable unless, in the case of naturalized citizens, there were willful material misrepresentations made when they applied for citizenship.

Aliens, even those who are permanent residents, can be deported under any of the hundred plus grounds enumerated in Section 241 of the I.N.A. These include the original “criminals, beggars, prostitutes and anarchists” as well as many other categories such as drug traffickers (no conviction necessary), communists and even those who failed to file annual registration forms (no longer required). Also, permanent residents who remained abroad for a long period of time, usually over a year, may be considered to have abandoned their right to live here.

Those who “entered without inspection” or violated or overstayed their legal status comprise the bulk of deportable aliens (Section 241(a)(2) of I.N.A.) This one ground covers those people who came illegally or stayed longer than permitted by their visas. For instance, most tourists are openly granted six months to stay in the country.

Furthermore, aliens who were improperly admitted because they were “excludable” by law existing at the time of such entry are also deportable under I.N.A. Section 241(a)(1). This so-called “re-entry” doctrine means that the even more formidable grounds of excludability found in Section 212 of I.N.A. come into play. For example, an alien who became a permanent resident before the law was changed to bar homosexuals can be deported if he makes a short innocent trip to Mexico and re-enters the United States. However, if he had never left, he could not be deported. In this example, from Rosenberg v. Fleuti, 374 U.S. 449, 10 LEd 2d 1000 (1963), the Supreme Court was so torn between maintaining Congress’s plenary power over immigration and the compelling facts of the case, that they determined that Mr. Fleuti did not in fact make a “meaningful departure” from the United States and thus did not “enter” the United States when he returned. The Fleuti doctrine is strictly limited to permanent residents who make brief innocent trips abroad. However, it points out two recurring themes in immigration law: the draconian nature of many of the law’s provisions, and the appellate court’s frequent romps in Wonderland, trying to carve just verdicts by drawing highly technical distinctions.

Although some of the grounds of deportability or excludability can be waived, usually it is required that the alien have a U.S. citizen or permanent resident spouse, parent or child. Also, it is easier to get a waiver for a convicted murderer than for someone who has a drug conviction, with the sole exception of possession of less than 30 grams of marijuana.

Finally, it should be pointed out that deportation proceedings are civil in nature. The Courts have long held that the sanction of deportation is not a “penalty” and accordingly all those Constitutional protections that apply in criminal proceedings are inapplicable. There is no right to government appointed counsel, jury trials, speed trials, exclusionary rules, or even the rules of evidence. Although the right to due process under the 5th Amendment applies, the Administrative Procedure Act is inapplicable and the immigration judges, most of whom were former INS trial attorneys, are still part of the Department of Justice, which also runs the INS. Thus, it will come as no surprise that nearly all aliens who are unlucky enough to be “ordered to show cause” why they should not be deported are found to be deportable.

Congress, nevertheless, has allowed certain categories of deportable aliens to apply for relief from deportation. Aliens who are not in proceedings may also apply for various benefits under the law. It is not the purpose of this article to attempt a comprehensive catalogue of the numerous “pigeonholes” that enable an alien to legalize his or her status, however, they fall into four basic categories: family re-unification, employment related skills, asylum and “amnesty.” Except for withholding of deportation under I.N.A. Section 243(h) based on establishing a clear probability of persecution, the relief is discretionary. Also, the alien must not be inadmissible under the numerous grounds contained in Section 212.

In many cases, there are quotas that limit the number of aliens who can become permanent residents in any given year. Also, certain countries, such as Mexico, have huge backlogs since only 20,000 quota numbers per year can be issued to any single country. Thus, timing becomes critical. Finally, there may be two ore even three different government bureaucracies involved, the INS, Department of Labor and State Department, each with its own regulations and processing delays.

 Family Re-Unification Categories

 Aliens who are the parents of U.S. citizens over 21 years of age, unmarried children under 21 of U.S. citizens (usually naturalized) or married to U.S. citizens may become permanent residents and are not subject to quotas. Also, unmarried sons, daughters and spouses of permanent residents, adult children of U.S. citizens and siblings of citizens over 21 years old may qualify for preference under the quota system. As mentioned above, benefits gained through a marriage of less than two years’ duration must be re-validated in regard to the bona fides of the marriage after a two years probation period. If the alien is no longer married or cannot show good cause why the marriage was terminated, he or she loses his status and becomes deportable.

 Employment Related Skills

 If an alien has a job offer for which it can be demonstrated that there are no minimally qualified “American workers” available and prevailing wage and labor conditions are met, he or she may be granted a labor certification. This requirement may be waived for certain professionals, intra-company transferees, religious workers and internationally famous scientists and artists. It is not necessary to be an engineer or systems analyst to qualify. There are many jobs, such as housekeepers, which “American workers” do not seem to be interested in and there are many skilled and semi-skilled occupations, such as specialty cooks or auto mechanics, in which most qualified workers are already employed. Although the quota for professionals is usually open, other worker may have to wait two or three years for quota numbers and certain countries, including Mexico, have even longer waits.

 Asylum

 Aliens who have a well founded fear of persecution on the account of race, religion, nationality, membership in a particular social group, or political opinion may be granted asylum in the United States. One year thereafter, subject to quota limitation, they may apply for permanent residence. Although the recent Supreme Court case of INS v. Cardoza-Fonseca, 107 S.Ct. 1207, 94 L.Ed., 2d 434 (1987), has lowered the standard of proof necessary to qualify for asylum, statistics indicate that relatively few applicants from U.S. backed countries undergoing civil strife (e.g. El Salvador, Guatemala, Philippines) are in fact granted asylum, at least compared to those fleeing communist controlled countries. Nevertheless, the INS has been required through litigation to grant employment authorization in non-frivolous applications until they can be adjudicated. In Los Angeles there is currently a one to two year backlog. Additionally, applicants can renew their claims de novo in deportation proceedings. There are also pending in Congress several bills that would provide a safe haven for El Salvadorans and Nicaraguans who came to the United States before a certain date.

 “Amnesty”

 Under the Immigration Control and Reform Act of 1986, aliens who have continuously lived in the United States since January 1, 1982 are eligible to apply for a newly created status of “temporary resident” They must have applied for legalization prior to May 4, 1988 and spouses and dependent children are not included unless they qualify on their own. Under a separate section of law, special agricultural workers who have worked at least 90 days during the period between May 1, 1985 and May 1, 1986, performing seasonal agricultural services may also qualify for temporary residence. These individuals, as well as certain Afghan, Polish, Ugandan and Ethiopian aliens, had until November 4, 1988 to apply.

However, even after the May 4 and November 4 deadlines passed, an alien who has resided in the United States for seven years and can show that his deportation would result in “extreme hardship” to himself or a United States citizen or permanent resident parent, spouse or child, can apply for suspension of deportation. Although by no means automatic, many aliens who did not qualify or did not apply for legalization may have very good suspension cases.

Temporary residents under the legalization section are allowed to remain and work in the United States for only 2 1/2 years. After an 18 month probation period they have one year to apply for permanent residency, at which time they still must be eligible, e.g., no crimes, welfare, etc. and either pass a basic English and citizenship exam or show they are enrolled in an authorized citizenship course. If they do not qualify for permanent residency, they become deportable.

Although the Rodriguez case briefly discusses the so-called “amnesty” law, which had just been enacted when the decision was rendered, it did not consider the temporary nature of this newly created status. Although it is expected that most temporary residents will eventually qualify for permanent residency, like the marriage cases, a condition subsequent must be met. Whether plaintiff will have to demonstrate to the trial judge that he or she can speak English or continues to have a viable marriage should be considered.

 Nonimmigrants and All the Rest

 There are many aliens who reside in the United States on temporary nonimmigrant visas. As long as they maintain their status and are eligible to renew their permission to remain here, they are not deportable. Some of these nonimmigrants have employment authorization and are allowed to work within certain very specific parameters. Often times stays can be extended to five years and certain classes may renew their stays and employment authorization for an indefinite period. Surely, these aliens should be entitled to some extent to loss earnings based on a U.S. standard even though they are not permanent residents.

Finally, under 8 CFR Sections 242.5 and 274a.12, of the INS regulations, various classes of aliens who may be deportable, but for which there are humanitarian reasons or other enumerated grounds may be allowed to temporarily stay in the United States and be granted work authorization.

 Preparing to Meet the “Illegal Alien Defense”

 Plaintiff’s counsel should retain an immigration expert as soon as the issue becomes apparent. Although it may take five years to get to trial, it may take equally long to obtain immigration benefits. Preventive law is the key. The expert should personally interview the plaintiff making sure that any language problem is corrected by use of a translator. The expert should be aware of any criminal, prior immigration or deportation history.

Plaintiff’s trial counsel should follow up with the expert and the client to make sure the case is progressing properly. Sometimes the client, who has not previously considered his illegal immigration status to be significant, needs encouragement to obtain the necessary documentation and complete the required forms. Make sure your client is aware that leaving the United States, fraudulent statements to the INS or American Consul or even minor criminal acts can result in deportation or a bar to future legal benefits.

 Conclusion

 It was naive of the Rodriguez court to think that deportability is like an on-off switch. Immigration law is a complex and dynamic area of federal regulation of which the State courts have very little comprehension. There are many factors that can affect an alien’s ability to legally remain in the United States. The issue is by no means as black and white as the Rodriguez decision implies. It is for this reason that the effective use of immigration law can be critical in maximizing recovery when future earnings are a significant portion of plaintiff’s claim.