How to defend yourself during an immigration audit

How to defend yourself during an immigration audit

Regardless of the political issues currently swirling around immigration reform, it is important to have a grasp of basic immigration law principles when defending personal injury cases. A few recent cases are illustrative of the effects that an undocumented worker’s status can have on claims of personal injury, plaintiff employment, or similar claims.

Hoffman v. NLRB, 122 S.Ct. 1275 (2002). In this case, the employer petitioned for review of, and the National Labor Relations Board (NLRB) cross-applied for enforcement of, an NLRB order awarding an undocumented worker backpay from date of his illegal termination until the employer discovered he was unauthorized to work. A panel of the Court of Appeals for the District of Columbia Circuit ordered enforcement. Following grant of a petition for rehearing en banc, the Court of Appeals again granted enforcement. On appeal, the U.S. Supreme Court, Chief Justice Rehnquist, held that federal immigration policy foreclosed the NLRB from awarding backpay to an undocumented worker who had never been legally authorized to work in the United States.

Madeira v. Affordable Housing Foundation, 315 F.Supp.2d 504 (S.D. New York 2004). Here, an injured undocumented worker’s status did not prevent him from recovering compensatory damages for defendants’ violation of New York’s Scaffold Law. His undocumented immigrant status was relevant to determining whether lost wages were appropriate and how much should be awarded.

Silva v. Wilcox, 223 P.3d 127 (Colo. Ct. App. 2009). Here, to the extent that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United States and has secured employment by violating the law or is in violation of the law in some other particular manner related to such employment, so that the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income, the jury should be provided that information in determining whether to award damages for lost future wages.

During discovery, an attorney may wish to direct written discovery to the plaintiff that asks about citizenship and immigration status. During the deposition of a plaintiff believed to be an undocumented immigrant, potential questions to ask include: Are you a U.S. Citizen? Where were you born? What is your immigration status? Are you legally authorized to work in the U.S.? If so, how is that documented? Have you ever applied for Medicare or Medicaid? (Don’t assume they haven’t – a Medicare audit last year revealed that people living in the U.S. illegally had collected over $120 million in Medicare benefits as of 2012. This could trigger Medicare Secondary Payer Act issues in the future.)

You can also take the deposition of the employer. Always do this as a 30(b)(6), and always serve the notice as a Notice of Deposition Duces Tecum. You can also subpoena the documents beforehand using Rule 45. Ask them to provide a complete employee file, including hire documents. Define “hire documents” as the employment application, I-9 form, and any copies of documents inspected in conjunction with the I-9 form. (This is, of course, in addition to any wage loss documents you want to obtain, such as W2s, W4s, payroll information, etc.)

Using best practices in the handling and workup of these cases can minimize carrier/defendant exposure by putting you in the best position for pretrial motions, including motions in limine. Of course, this raises the issue of what to do when defending a case and your client (defendant) is undocumented. For example, this problem arises when a driver hired by an employer turns out to be working illegally, and then causes an automobile accident while in the course and scope of his/her employment. First, try to exclude the defendant’s immigration status under Rule 401. Second, TXI Transportation v. Hughes, 306 S.W.3d 230 (Texas 2010) is extremely helpful. It held that neither the illegal immigrant status of a gravel truck driver, nor his use of a fake Social Security number to obtain his commercial driver’s license, was relevant to a negligent entrustment or hiring claim against the employer. It also held that the illegal immigrant’s status was inadmissible to impeach the driver’s testimony, and that erroneous admission of evidence relating to the driver’s immigration status was not harmless.

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Nobody likes it when others spread false information about them, so sometimes it’s necessary to take action. If the false information reaches the level of defamation and is spread to third parties, it may constitute the legal charge of libel (if written) or of slander (if spoken). But what if the false reports and charges are made in a private letter only to the person being attacked? No lawsuit in this case, but the person may wish to respond forcefully to prevent further communication of the lies.

Libel and Slander

When someone’s false reports harm another person’s personal or professional reputation or his livelihood, it is called defamation. The law allows a person to recover damages for defamation when the false accusations are passed on to third parties and cause harm to the person being discussed.

Libel and slander are slightly different offenses. Slander occurs when someone speaks badly about another person, and the remarks are heard by a third person, injuring the subject’s reputation or character. To be slander, the insulting words do not need to be recorded and slander can also include hand gestures.

Sometimes the false negative remarks are written, not spoken, or are published in a form that makes the comments accessible by third parties, including recorded audio. This form of defamation is called libel.

Damages for Defamation

Anyone who is a victim of defamation can bring a lawsuit against the person responsible for damages to his reputation. In order to be defamatory, the statement must hold up the subject of the statement to scorn, hatred, ridicule, disgrace or contempt in the mind of any considerable and respectable segment of the community.

Some types of statements are automatically considered defamatory in some states. These include statements that the subject:

  • Has committed a serious, notorious or immoral crime.
  • Has an infectious or terrible disease.
  • Is incompetent in his job, trade or profession.

Letter Response to False Allegations

If the false statements about a person are made only to that person, it is not defamation, since there could be no damage to the subject’s reputation or business. However, that does not mean that the subject should not respond by letter, and a strong written challenge to the lies sometimes goes a long way toward keeping them from spreading.

It may be tempting for a person to ignore false and critical statements made to him by a colleague or a client, especially if they are so wrong and ridiculous that they don’t seem to deserve a response. But this is not always the wisest course.

Any business person should respond by letter to false or partly inaccurate allegations or misleading statements relatively quickly. It is human nature to want to avoid a fight, but a business person or a professional ignores the claims at his own peril. Even if he is not thinking about filing a lawsuit, the person should respond, pointing out the inaccuracies in the statement in order to prevent a court down the road from treating a failure to respond as evidence that the statements in question are true.

Composing a Letter Response to False Allegations

The best tack to take when responding to false allegations is to write a serious, unemotional examination of the subjects raised. Repeat an allegation, then explain dispassionately the ways in which it is inaccurate. Then proceed to the next allegations.

Keep responses objective, factual and succinct. While this may not feel as satisfying as name-calling, it is likely to make a better impression on a judge should the matter rise to the level of defamation. And a calm, nondefensive response may de-escalate the situation or at least prevent the allegations from being passed on to third parties.

Trying to defend yourself in court can be a difficult task if you do not know exactly how to do it. One of the best ways to defend yourself so that you can think about it beforehand in an organized way is to write a letter to read or be read in court. Doing this can ensure that all of your thoughts are constructed in the best and most legible way for the court to understand. Writing one of these letters is relatively simple.

Write a strong beginning statement. The first line will set the tone for the rest of the letter, so it will need to sound confident, professional, and ready to defend yourself. It is good to let the opposition know that you are not afraid of the charges against you and let them know that you have done your homework. The beginning statement must be strong so that everyone in the court knows that you are prepared for anything.

Word the middle segment strongly and with researched information. Do not just ramble about how you are innocent and wrongly accused. It should be well-structured and to the point. Do not make it too long to bore the courtroom, but not short enough so that it is easy to forget and easy to misquote. Make it quick, but thorough and to the point. Mark it with several intelligent legal statements that show the court you have done your homework and are taking it seriously.

End the letter strongly as well. The last sentence is often the only one that the majority of the people listening will remember. This being the case, try and summarize your entire letter in a sentence or two. The last thought should be stating that you are offended by the charges or you only want proper justice to be done. It needs to be something that tells the court that you are innocent and are on the side of actual justice.

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Kafka Revisited: Ninth Circuit Decision Protects Due Process Rights for Noncitizens

The basic tenet that you can’t be sued without knowing the charges against you and having a meaningful opportunity to defend yourself is a cornerstone of the U.S. judicial system. This concept of fundamental fairness ensures that people in courtrooms across the country have access to a discovery process that enables them to see the other side’s evidence. Plaintiffs and prosecutors are routinely required to produce documents that will be used to prove their cases so that defendants have a chance to respond. For too long, however, these kinds of procedures and protections have been denied to noncitizens in immigration court.

Finally, the Ninth Circuit Court of Appeals has handed down a path-forging decision in Dent v. Holder that could put an end to this denial of due process. In its ruling, the court indicated that Alien (or “A”) files in the government’s possession should be provided as a matter of course to all noncitizens in removal proceedings. An A-file is a noncitizen’s case file which contains all records of his interactions with the government during the U.S. immigration and inspection process—records that could, for instance, support a claim to citizenship. The Ninth Circuit flatly rejected the government’s argument that, under existing regulations, Dent could obtain his A-file only by submitting a written request under the Freedom of Information Act (FOIA).

Given that the processing of FOIA requests often takes a long time and that continuances in removal hearings are discretionary, the Court noted that a respondent could be removed before receiving his A-file. Such an unconstitutional result, according to the Ninth Circuit, “would unreasonably impute to Congress and the agency a Kafkaesque sense of humor about aliens’ rights.” The Court’s allusion to Kafka’s The Trial—the story of a man who is arrested by an anonymous authority for an unknown crime—is sadly a reality for many immigrants, but the Court’s decision to grant access to A-files during removal proceedings represents significant progress toward protecting noncitizens’ due process rights. Continue reading..

To successfully defend against a negligence suit, the defendant will try to negate one of the elements of the plaintiff’s cause of action. In other words, the defendant introduces evidence that he or she did not owe a duty to the plaintiff; exercised reasonable care; did not cause the plaintiff’s damages; and so forth. In addition, a defendant may rely on one of a few doctrines that may eliminate or limit liability based on alleged negligence.

Three of the most common doctrines are contributory negligence, comparative fault, and assumption of risk. For instance, you may not be found entirely liable if the other party also was negligent. This and other defenses to negligence claims are discussed below.

Contributory Negligence

One of the most commonly used defenses to negligence claims is to show contributory negligence on the part of the plaintiff. Contributory negligence occurs when a plaintiff’s conduct falls below a certain standard necessary for the plaintiff’s protection, and this conduct cooperates with the defendant’s negligence in causing harm to the plaintiff. In plain English, this means the plaintiff most likely would have avoided injuries had he or she not also been negligent.

For example, a factory worker suffers serious burns to his face after his welding torch malfunctions. However, he failed to flip down his mask before using the torch, which would have prevented the injury. Technically speaking, the plaintiff’s negligence for his safety (failure to use proper safety equipment) is the cause-in-fact and proximate cause of the damages.

Some states, including the District of Columbia and North Carolina, us the doctrine of "pure contributory negligence." Under this doctrine, a victim who is only 1 percent at fault may be denied compensation in a lawsuit. Indiana, meanwhile, applies this doctrine only to malpractice cases.

An exception to the contributory negligence defense is known as "last clear chance," when the defendant could have avoided causing injury by using ordinary care. For example, a pedestrian crosses the street even though the "don’t walk" sign is clearly visible. A motorist who has the right-of-way but is distracted by her cell phone strikes and injures the pedestrian. Since the motorist could have avoided striking the pedestrian had she used ordinary care, she can still be found liable.

In many states, contributory defenses to negligence claims (and by extension, the last clear chance exception) has been replaced by comparative negligence.

Comparative Negligence

Contributory negligence has led to harsh results in some cases, and the majority of states have replaced the doctrine with an alternative called comparative negligence (also called "non-absolute contributory negligence"). The doctrine of comparative negligence reduces a plaintiff’s recovery by the percentage in which the plaintiff is at fault for his or her damages.

A majority of states have modified this rule, barring a plaintiff from recovering if the plaintiff is as much at fault (in some states) or more at fault (in other states) than the defendant.

The three main types of comparative negligence are:

  1. Pure:Plaintiff is awarded a percentage of the damages for which defendant is responsible.
  2. Modified:Plaintiff is awarded damages only if his or her negligence is equal to or less than the defendant’s negligence.
  3. Slight-Gross:Plaintiff is awarded damages only if his or her negligence is considered "slight" and the defendant’s negligence is "gross."

For example, a drunk driver strikes and seriously injures a pedestrian who failed to use a nearby crosswalk. Although it’s unlikely the driver would have acted any differently had the pedestrian used the crosswalk, the driver’s civil liability may be reduced due to the plaintiff’s own negligence.

Assumption of Risk

When a plaintiff assumes the risk involved in an obviously dangerous activity but proceeds to engage in the activity anyway, he or she may not be able recover damages for injuries. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. The assumption of risk defense would not apply to any additional, unknown dangers.

An example might involve an amusement park ride that flips passengers completely upside-down. A passenger who saw the ride and knew what would happen on the ride assumed the risks associated with the ride. On the other hand, a plaintiff does not assume the risk of something unexpected related to the ride, such as where a loose bolt causes the ride to throw the plaintiff in a violent manner.

Involved in a Negligence Claim? Get Help From an Injury Attorney

If you’re being sued, chances are the other party has a lawyer. The plaintiff’s attorney will work tirelessly to ensure that you are held liable for his or her client’s injuries. Shouldn’t you also be represented? To learn more about your legal options, including any possible defenses to a negligence claim, it may be in your best interest to work with an experienced injury law attorney.

A character affidavit is a document in which someone swears under oath that another person is upright and moral. People may seek this type of affidavit – or, more often, character letter – from their friends and associates in many different types of court proceedings including child custody disputes, immigration cases, prisoner sentencing, admission to the bar or adoptions.

Character Letter Versus Character Affidavit

Good character letters and affidavits serve the same purpose: they give a judge an indication of how a party to a pending case is viewed by those in her personal circle. Generally, the judge is considering a question that involves discretion, like which spouse should be given primary custody of the kids, whether a prisoner should be sentenced harshly or with leniency, or whether an immigrant should be deported for a misdemeanor.

A letter is simply a document, signed by the writer, relating her knowledge of the other person’s behavior and habits. An affidavit is also a document, but it is usually set out in numbered paragraphs, and the person signs it under oath, often before a notary. That means that a letter is giving an opinion while an affiant is swearing to facts. It is never a good idea for a person to swear that a fact is true if there is any doubt in her mind of its accuracy.

Reason for Good Character Affidavit

Whether the information is conveyed by letter or affidavit, the basic job of these documents is to give positive information to the judge about the character of the person whose issues are before the court. The focus of the letter should be on the traits relevant to the inquiry. For example, a character letter for child custody will describe traits that indicate good parenting practices like patience, kindness, prudence and delight in the children.

Drafting a Character Affidavit

When a person sits down to draft a character affidavit, he should start by stating who he is. He should mention where he lives and what he does for a living. Next, he should set out what his relationship is to the person he is describing, how long he has known the person and in what capacity. This gives the court some perspective on how well he might know the true character of the person.

If the affidavit is for a prisoner or someone against whom charges are pending, for example an attorney the court may disbar, the affiant should make clear that he is aware of the charges. This lets the court know that, despite the charges, the affiant remains willing to speak up for the person.

Discussing the Good Character

After these introductory paragraphs, it is time to focus on the person’s character. The person writing the affidavit should mention any and all good qualities and habits the person has demonstrated. It is more persuasive if she gives several actual examples showing the quality than to simply use a series of adjectives.

Rather than just saying the person is kind, for example, she might tell the court about how the kind person brought food to a family down the street who were in need. It is better to talk about how the person found a wallet with money in it and returned it to the owner, than to just describe the person as honest.

Oath, Signature and Notary

An affidavit is a sworn statement, so it needs to include an oath swearing under penalty of perjury that everything set out is true to the best of the affiant’s knowledge. Some states require that the affidavit be sworn by a notary; if that is the case, take it to a notary and get a signature and seal.

Imagine that the U.S. Central Intelligence Agency gets wind of a plot to set off a dirty bomb in a major American city. Agents capture a suspect who, they believe, has information about where the bomb is planted. Is it permissible for them to torture the suspect into revealing the bomb’s whereabouts? Can the dignity of one individual be violated in order to save many others?

Greatest Balance of Goods Over Harms
If you answered yes, you were probably using a form of moral reasoning called “utilitarianism.” Stripped down to its essentials, utilitarianism is a moral principle that holds that the morally right course of action in any situation is the one that produces the greatest balance of benefits over harms for everyone affected. So long as a course of action produces maximum benefits for everyone, utilitarianism does not care whether the benefits are produced by lies, manipulation, or coercion.

Many of us use this type of moral reasoning frequently in our daily decisions. When asked to explain why we feel we have a moral duty to perform some action, we often point to the good that will come from the action or the harm it will prevent. Business analysts, legislators, and scientists weigh daily the resulting benefits and harms of policies when deciding, for example, whether to invest resources in a certain public project, whether to approve a new drug, or whether to ban a certain pesticide.

Utilitarianism offers a relatively straightforward method for deciding the morally right course of action for any particular situation we may find ourselves in. To discover what we ought to do in any situation, we first identify the various courses of action that we could perform. Second, we determine all of the foreseeable benefits and harms that would result from each course of action for everyone affected by the action. And third, we choose the course of action that provides the greatest benefits after the costs have been taken into account.

The principle of utilitarianism can be traced to the writings of Jeremy Bentham, who lived in England during the eighteenth and nineteenth centuries. Bentham, a legal reformer, sought an objective basis that would provide a publicly acceptable norm for determining what kinds of laws England should enact. He believed that the most promising way of reaching such an agreement was to choose that policy that would bring about the greatest net benefits to society once the harms had been taken into account. His motto, a familiar one now, was “the greatest good for the greatest number.”

Over the years, the principle of utilitarianism has been expanded and refined so that today there are many variations of the principle. For example, Bentham defined benefits and harms in terms of pleasure and pain. John Stuart Mill, a great 19th century utilitarian figure, spoke of benefits and harms not in terms of pleasure and pain alone but in terms of the quality or intensity of such pleasure and pain. Today utilitarians often describe benefits and harms in terms of the satisfaction of personal preferences or in purely economic terms of monetary benefits over monetary costs.

Utilitarians also differ in their views about the kind of question we ought to ask ourselves when making an ethical decision. Some utilitarians maintain that in making an ethical decision, we must ask ourselves: “What effect will my doing this act in this situation have on the general balance of good over evil?” If lying would produce the best consequences in a particular situation, we ought to lie. Others, known as rule utilitarians, claim that we must choose that act that conforms to the general rule that would have the best consequences. In other words, we must ask ourselves: “What effect would everyone’s doing this kind of action have on the general balance of good over evil?” So, for example, the rule “to always tell the truth” in general promotes the good of everyone and therefore should always be followed, even if in a certain situation lying would produce the best consequences. Despite such differences among utilitarians, however, most hold to the general principle that morality must depend on balancing the beneficial and harmful consequences of our conduct.

Problems With Utilitarianism
While utilitarianism is currently a very popular ethical theory, there are some difficulties in relying on it as a sole method for moral decision-making. First, the utilitarian calculation requires that we assign values to the benefits and harms resulting from our actions and compare them with the benefits and harms that might result from other actions. But it’s often difficult, if not impossible, to measure and compare the values of certain benefits and costs. How do we go about assigning a value to life or to art? And how do we go about comparing the value of money with, for example, the value of life, the value of time, or the value of human dignity? Moreover, can we ever be really certain about all of the consequences of our actions? Our ability to measure and to predict the benefits and harms resulting from a course of action or a moral rule is dubious, to say the least.

Perhaps the greatest difficulty with utilitarianism is that it fails to take into account considerations of justice. We can imagine instances where a certain course of action would produce great benefits for society, but they would be clearly unjust. During the apartheid regime in South Africa in the last century, South African whites, for example, sometimes claimed that all South Africans—including blacks—were better off under white rule. These whites claimed that in those African nations that have traded a whites-only government for a black or mixed one, social conditions have rapidly deteriorated. Civil wars, economic decline, famine, and unrest, they predicted, will be the result of allowing the black majority of South Africa to run the government. If such a prediction were true—and the end of apartheid has shown that the prediction was false—then the white government of South Africa would have been morally justified by utilitarianism, in spite of its injustice.

If our moral decisions are to take into account considerations of justice, then apparently utilitarianism cannot be the sole principle guiding our decisions. It can, however, play a role in these decisions. The principle of utilitarianism invites us to consider the immediate and the less immediate consequences of our actions. Given its insistence on summing the benefits and harms of all people, utilitarianism asks us to look beyond self-interest to consider impartially the interests of all persons affected by our actions. As John Stuart Mill once wrote:

The happiness which forms the utilitarian standard of what is right in conduct, is not. (one’s) own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator.

In an era today that some have characterized as “the age of self-interest,” utilitarianism is a powerful reminder that morality calls us to look beyond the self to the good of all.

The views expressed do not necessarily represent the position of the Markkula Center for Applied Ethics at Santa Clara University. We welcome your comments, suggestions, or alternative points of view.

This article appeared originally in Issues in Ethics V2 N1 (Winter 1989)


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Political Context / Political Context

On November 8, 2016 Donald Trump was elected President of the United States. Mr. Trump has pledged to enact tough and unjust immigration policies, including increasing efforts to enforce certain arrest warrants. Mr. Trump will not become president until January 20, 2017, and we will not know until after that time what he will do. This could include:

  • There could be more immigration officer raids (ICE) and other apprehension efforts
  • Programs that benefit immigrants, such as DACA, can be terminated
  • It may be more difficult (or dangerous) to apply for immigration benefits
  • It may be more difficult to travel to the United States from other countries

Regardless of what Mr. Trump has promised, there are some limits on what he can do. All persons living in the United States, regardless of their immigration status, have certain rights and protections guaranteed by the Constitution. These rights ensure that you do not have to give information to the police or immigration officials who might hurt you and protect you from the illegal invasion of your home by the police or immigration officials.

All year long CASA provides critical services to immigrant and working-class families, and advocates for their rights. But our work is only possible because the support of people like you; individuals who stand with immigrants and understand that providing services to those in need uplifts our entire community. Will you join us in our fight for justice by giving today?