not be a problem for his immigration status because he had been here a long time. he was wrong. affirmatively wrong. and so obviously deportation proceedings were initiated against him, or removal, as it's called now, and that is the position that mr. barea found himself in. he actually started his case in '04 on a pro se motion, which i think is very interesting. in the context both of talking about what our responsibilities are as lawyers, and then also talking about why people go to notaries versus why they don't or that sort of thing in any event, he started this journey in 2010. the supreme court said -- granted his case and they essentially -- for the first time the supreme court said that immigration consequences of a criminal conviction are not merely collateral. prior to barea, the context what is was very difficult for

attorneys -- for respondents, or defendants to go back into courts and say, listen, i got the wrong advice, and now as a result of this advice, i'm now facing removal from the country. i now have deportation. there were for whatever reason -- the argument was -- essentially was that any immigration consequence was collateral to the point of the actual criminal case, and the supreme court held in padilla that immigration consequences weren't collateral, there's so significant in nature that in fact they are connected enough to the penalty that the sixth amendment does apply, you have the right too effective counsel and that effective counsel includes competent professional advice on your immigration consequences in the context of a

plea. so, that was the gist of it. they applied the -- she supreme court said yes and now we're going to apply strickland v washington, the traditionallal ineffective assistance of counsel analysis conducted mostly in criminal cases. this is a really big deal no question about it. padilla opened the conversation about what is publish what are the roles of criminal counsel, what is it that we need to be doing when you have an immigration client. i should say, just as a -- we're going to go on and talk more about padilla, which has been a big deal -- you can see its ripple effects at the state and federal level -- there have been -- right after that there was -- a subsequent case the supreme court said that padilla

is not retroactive. so that's something to think about as we good forward. in any event that's the gist of padilla, and lets us know even the criminal defense attorneys have affirmative duty to advise their clients properly about immigration consequences. that's the backdrop. >> thank you. that is a great setting to then talk about how in practice we're seeing that suddenly attorneys majoring wage an hour cases or housing discrimination cases or torts, litigation, are suddenly having to similarly address immigration consequences for their clients within part of the scope of effective representation, and so, matthew, could you talk more about that, the areas of law that -- while padilla is intended to focus on criminal consequences -- criminal convictions-that this

is setting a precedent for other areas of law. >> sure. thanks. many of the issues that i face in this -- this predates madea. padilla just highlights the fact that when counseling a client, one has to consider the immigration consequences or how their immigration status affects their claim. my practice is focused almost solely on civil litigation, particularly civil rights litigation, primarily in the areas of employment discrimination, wage theft, housing discrimination, and public accommodations discrimination, and although we don't hold ourselves out to -- this way about half of our intakes do come from the immigrant community and that's largely because of the particular vulnerability that our d.c. area immigrant residents face in employment and

housing and when they're just interacting -- going about their daily lives. i think in the first instance there are many immigrants, both documented and undocumented, are often reluctant to step forward and see if they've had their civil rights violated because they -- they're afraid of -- afraid potentially of the immigration consequences. those that do, one of of the first things we have to be sure we're counseling them about is that for me most part, almost all of our civil rights laws and wage theft laws don't -- it doesn't matter whether you are a documented immigrant or if you are a u.s. citizen or if you're undocumented. normally your rights are the same. the problem is that your remedies are often different. and that is where counseling them becomes most important.

for instance, in a typical wrongful termination claim, we have had two ongoing cases very similar facts in my office lately, pregnancy discrimination, wrongful termination claims where in one case it was a woman who was fired shortly after announcing she was pregnant, but turns out she was not authorized to work. in another case a u.s. citizen was terminated shortly after she announced she was pregnant. both of them have rights under title vii, under our federal employment discrimination laws but the recommends are going to vary a lot. if you are authorized to work, then you're entitled not only to compensatory damages, meaning your emotional and mental anguish damages -- and also entitled to back pay, and back pay can often be the larger of those two components. if you're not authorized to

work, then you're not entitled to the back pay or front pay or the economic damages that result from your wrongful termination. and so assessing a case and making tour a client is comfortable going forward with a matter really means you have to be sure they understand how their immigration status is going to affect the strength and the size of the potential recovery that hair going to receive. -- that they're going to receive. wage theft is an area where this comes up very often. again, i think a lot of particularly undocumented workers, are not -- do not like to -- they are very reluctant to come forward when they haven't been paid overtime or minimum wage or have otherwise not been paid correctly under the law for fear of losing their job. but most of them also think they don't have any rights to that work because they're not -- to that pay because they're not authorized to work and that's not true. if you have worked, and have not

been paid correctly under the law, regardless of your immigration status and whether you're authorized to work or not, you entitled to payment for that work. the only difference really being that if an employer retaliates against you for complaining about your over -- lack of overtime pay or lack of manipulate wage pay and decides to fire you because of it you would not be entitled to be reinstated back at your job. whereas if you are authorized to work, you have those greater protections. so that is very meaningful. if i have a client say, i work at a job i'm not authorized to work but i'm working at this job. they're not paying me minimum wage or not paying me overtime, i'd like to try to recover those wages. i have to make sure that i'm counseling them to know that, yes, you're entitled to that and we cook do something but if your employer decides that when we

raise this issue, decides to fire you, you're going to be out of a job. i can't -- the law is not going to force that employer to reinstate you. in fact it can't. i think in the civil context we have to take with every client, we have to assess what one's immigration status -- how that affects the advice that we as lawyers are able to give them. i think i'll hold off and maybe circle back to the medical later. >> sure. and actually what you just touched upon, matthew, is a nice segway to ask john a question followed by ophelia. we have seen padilla has led to reaction at the state level in legislation passing and court decision. can you talk about at the state level how your practice might have changed or these kinds of rules or regulations that might

have come up in light of the jonathan and maryland and ophelia and virginia. >> thank you. i want to actually commend everyone who is here today because the subjects we're discussing is really, really important, and the things we're talk talking about is access to representation. i practice in maryland. ophelia in virginia. so we bring different perspectives. i want to share if you you what is going known tate of maryland in terms of immigrant opportunities in the aftermath of the padilla decision. ophelia mentioned one of the big questions that calm out of the padilla case which it would apply retroactively. for those in law school you know when there's a new law that comes out, one over the big

decisions whether that means from that time forward we take a look at things in a different way or look backwards. after the padilla decision we had a case in maryland calls denizio vs. state and the case said pa dia should be retroactive. in other words, if a criminal defense attorney had given ineffective assistance of counsel many years ago prior to the padilla decision, that person could bring an action in maryland to get the criminal defense case -- the actual criminal conviction looked at again. and it didn't matter how far back you wanted to go. if you had ineffective assistance of counsel you could go back as far as you wanted. the supreme court decision in between 2013 took another look at padilla and said we don't think it's a retroactive application. it's not a new law. we're simply applying the constitutional principles from strickland, now in the immigration context.

what happened then is the supreme court said, if there's an independent basis in state law, then you can apply it retroactively but don't look to our federal decision for constitutional juris prudence to apply wreck to actively. the state of maryland said we will apply it retroactively, and in february 2013 maryland was the only state in the whole country that could apply padilla retroactively. that is until gentleman named lincoln miller's case wound up in the maryland court of appeals and decided in october of 2013, just nine months later, and the court of appeals said, sorry, we don't see an independent ground here in the state of maryland so we won't apply padilla retroactively. a nice gap between february and october we could apply things retroactively that nobody else could, but frankly the court of appeals closed the door there. i will say that it's not 100% closed. if there were an argument there

could be an independent basis in state law to apply padilla red to actively, wasn't might be able to do that. the schidez decision left that as a remote possibility. for law students, don't forget to think creatively and think outside the box. maybe you'll get the case and open the door for people in terms of access to justice. >> in terms of how this is being applied, i would say a lot of the cases handle,, involve a criminal conviction issue, and for many of the people out there in our community, there's a perception that, well, the criminal conviction issues are pretty clearcut. if you get convicted of a crime and you're not u.s.a. citizen, then maybe you shouldn't be ooher in the united states. the problem with that thought it that the u.s. immigration system has very broad definitions of what it means to be convicted of a crime. for example, under most state

laws, if you get probation before a judgment, you have also speeding issue, perhaps, and the judge says i'll give you probation before a judgment or any other kind of criminal matter. under most state law that's not a conviction for state purposes. you don't have a criminal conviction record. when you apply for a job you can say i don't have a criminal conviction record. but our immigration service, the national immigration system, says that is still a conviction for immigration purposes, and we will hold the immigration law against you if you got a probation before a judgment. it isn't just that. there are civil infractions. people who engage in jaywalking, or other minor offenses, are part of the civil code, not criminal in nature, those offenses, however, in some cases are looked at just the same as a criminal conviction for immigration purposes. so, the way the immigration law looks at things, it's not as simple matter of if you're

convict ode of major crime you shouldn't be in the united states. the immigration system catches a lot of people who have very minor scrapes with the law just because they're not u.s. citizens, then the full weight of the immigration law is thrown against them. they don't have the opportunity to pursue the same right wes would normally think would be available to individuals. the problem in the padilla context is that it looks safe to plead guilty to a lot of criminal offenses, and criminal defense attorneys, most of them are not immigration lawyers. glory a lucky place, all of you in law school still. you have the opportunity to go into practice, if you want to do criminal defense, knowing that immigration is an important component, and if you're going to do immigration law, then you will know that the criminal defense issues are important for your practice. so, you're not going into this blind. but many people who come into my office and ophelia's office have already gotten criminal records and we search online and find their criminal convictions and asked them, well, what happened

here? and they said, don't have a criminal record. i have a probation before judgment. my defense attorney said no problem. and then we shake our head and say, no, this is a really big problem. because in the immigration context, your probation before a judgment is the same thing as a cop visitation. or perhaps one would say, well, i got a deal with the state's attorney officer district attorney's office and i was diverted into also education program. or i agreed to do a little community service in lieu of get ago conviction. those diversion programs for immigration purposes are considered to be the same thing as convictions. so we have to counsel people they've hey problems with their immigration situation. what problems? people could face deportation of removability from this country based on these simple kinds of matters. might be inadmissible to be able to get a benefit such as agreen card, permanent residence, or a visa, or just to leave the united states and come back into the united states. people find they have problems

getting naturalization to become u.s.a. citizen, or even something much more simple like getting terror protected status as many people in the community seek to have, and they have to renew on a regular basis. people who want to get deferred action for childhood arrival which is not a status at all but allows someone to stay in the united states who came here at a young age for a period of two years, perhaps renewable. but they may be barred from doing these things for very minor scrapes with the law. things we wouldn't hold against a u.s. citizen. so we sit down and we talk to people and say, what happened? and we find out, well, the criminal defense attorney said, i don't know anything about immigration law but i know this shouldn't be a problem because it's probation or a diversion, or something that couldn't possibly be a problem because you're not going to jail. and lo and behole it's a huge immigration problem. and padilla said -- the other case said you can't go back, and

now we're four years out from padilla, and things that are newer on people's criminal records give rise to this circumstance. and i'll tell you, there are very good criminal defense attorneys, really good attorneys do a great job at criminal defense. who don't know anything about immigration law, and will tell their clients, i don't know anything about immigration law. the word about padilla and which iidez has not gone out to the extent that it has to. and so people in our communities need to know that they're entitled as matter of the u.s. constitution to have effective assistance of counsel in the criminal defense context. when they immediate with an immigration lawyer they have a right to have the these issues brought up in many cases we'll talk to people about whether we want to re-open the criminal defense allegations. just because the case is re-opened doesn't mean the charge goes away. always a visitation involved because you could be tried again and you have to make an assessment whether the person

really would be convicted or not. but there night be multiple charges and perhaps somebody has a lesser charge they could plead to that has lesser immigration consequences, or perhaps there's some other arrangement that can be worked out. maybe somebody has already done the time in jail and the district attorney is not interested in further punishment because somebody has done their service. so, we look at those cases closely inch the context of going beyond the criminal defense situation, i think matthew's point is right in that there's an awareness now that people who are immigrants have greater rights in society. if you go back ten, 20 years, from a constitutional law point of view, you'll see that people who are not u.s. citizens have lesser rights, and it's still the case when the government is involved in making decisions. but padilla was revolutionary in a sense because it said that the strickland test, the ineffective

assistance of counsel test, applies to everybody. applies to everybody, regardless of status. and applies to immigrants as well. and this is one of those rare cases where the supreme court says, immigrants don't get lesser rights. the same rights as everybody else in this country. the constitution should affly everybody when it comes to criminal defense, effective assistance of counsel. >> you're talking about this -- this includes -- can you talk about how this includes, let's say in the cases where someone does not have counsel or chooses to represent themselves,. >> that's an excellent point and i want to talk briefly about that and then pass the mic to ophelia. the state of maryland we have a rule that requires our judges to make sure that the criminal defendants are advised there may be immigration consequences about pleading guilty to a criminal charge.

so, it isn't simply there's a constitutional right to have your defense attorney tell you what is going on. your judge also, by maryland rule, has to inform you there may be immigration consequences. so we're seeing that ability in our state. ophelia, what about virginia? >> in virginia and a lot of jurisdictions have that in their plea. they're telling you that judges are asking the defendants at the time they're entering their plea. that's slightly different when someone -- because in the pro se case where you have an individual who is not represented, he is -- he or she is not receiving advice from an attorney so they're sort or kind of floating along there, not really knowing but thinking i should -- i think the -- more of a burden on them, on the defendant insuring that case to get the advice they need. the burden on the judge is just to simply say, listen, you can plea to this if you want to but there might be an immigration consequence and then the burden

shifts back to the defendant to, oh, okay, maybe shy speak to an immigration attorney. i don't know how often that would take place in the moment of plea. so i definitely think it's part of the process now in virginia, and many jurisdictions. i would say that. >> there's also an evolution here, because if you look 20 years ago, you didn't have this as an opportunity. in court rules through the entire country, judges didn't have to advise people there might be immigration consequences, and and there was no recognition of the right to effective assist stabs of counsel. so -- assistance of counsel. so whether you're pro se or not our system is moving into the realm of making sure that immigrants have better rights. not perfect but what we have now is better. >> i agree with that. i do think that things are moving maybe a little bit faster on the other side of the potomac

than they are on my side of the potomac and the commonwealth of virginia. we had a discussion prior to the panel. i say potentially there's not only a difference between what happened happens on one side of a potomac and what happens in virginia. things can be tougher in not northern virginia, and i don't not what happen toes because we never determined where the end of northern virginia is. i will say that with respect to -- i enveil you that very brief period of time where it was okay to be retroactive. the commonwealth -- i don't know that would say about padilla to be honest in the commonwealth. the commonwealth has their own case called morris v children, and it was pretty much the same -- morris v. chan. in the way the commonwealth has limited your access to padilla

or your access to what i think should be your right to effective counsel, is by limiting your -- the way you get back into court. so, in morris v. chan, that guy who i feel -- he was a refugee from liberia and had also an lpr, grebe-called holder and crimes, and the filed a series of motions because in virginia we like these old writ things. the writ of -- and the happy -- habeas. and what the virginia supreme court said you can't use these writs. and their basis for that was that those two writs were essentially -- the way they read it, those writs were designed to correct errors of fact, and

your -- a breach of your right to effective assistance of counsel wouldn't be in the writ. just too bad, i guess. so the only way to go back in the commonwealth of virginia is on the habeas, and is it self-restricting by the statute. you can only file a habeas within two years of the final order. your final order was 2005. doesn't matter if padilla was retroactive because we're way past two years. there was a case law requirement -- not in the statute but that you must be in custody so that's really -- i have to say that's a big deal. so for the commonwealth of virginia, how we deal with post conviction relief you file the petition -- it's always, i find, the attorney general, not the commonwealth attorney -- i don't know if you fine bus i fine it's the attorney general's office that handles the habeas

petitions, not the commonwealth attorney. their argument is if it's outside or not inside the two-year time and is the person in custody. that's the biggest issue we deal with in the commonwealth. so we are looking at different cases because the question is what is custody. and so as you said, a lot of -- it's hard for criminal attorneys -- way don't say this, too at the end of the day there are lots of -- criminal attorneys do their job. they're supposed to do what they're supposed to do but in many ways they're diametrically opposed to what we want them to do ann as an immigration attorney. a criminal attorney wants to get you the least amount of time. not supposed to go to jail, no felony and that's they're goal. they went to law school, said i'm a criminal attorney and thing goes away. but that's not immigration attorneys think. we think, hey no way, there's a bigger picture. that is a conviction. no. no. no. and that is -- we're currently in conflict with our criminal

colleagues. they're like, i don't understand. i got 12 months suspended. great. that's an gag said felony. i don't want that. -- aggravated felony. i don't want that, this is a constant conflict between criminal attorneys and immigration attorneys. one thing that padilla says, one of the most important things that padilla says not only do criminal attorneys have an obligation to give competent advice, correct advice -- that it is not what happened in pa da, obviously, but the silence also is not the answer. that even if you don't know you have to say something. you must advise your client there may be immigration consequences even if you don't know what those immigration consequences are. and that, i think, is the overriding or overarching theme here, which is that there are these -- i'm not a sure if would say they have more right buzz we should recognize these rights are in existence. it's like padilla in the sense i

don't think it's a new rule. it should have been an application of existing law. we should know that everyone has the right to effective assistance of counsel and deportation is not a collateral consequence. know what i mean? >> it has taken us a long time to get there because of where constitutional systems started out in terms of having lesser rights for immigrants. if i may on this issue of how padilla has spread out further, just in terms of the awareness of immigrant issues in our state legislatures and things going on, way don't take a little bit of pride in something that just came out of the maryland general assembly that involves special immigrant juvenile cases. so, for people who come to the united states who are under 21, from other countries, if the -- they conclude not reunified with their parent because they suffered abuse or neglect or were abandoned by one or both parents there's the acknowledge to pursue a green card.

and this is until someone reaches the age of 21. that's where we cut off adulthood and childhood. most states define adulthood at the age of 18, and in the state of maryland it has been 18, defined by law, for a very long time. however 0, general assembly just passed a bail which indicates we're athrough seek custody guardianship for children up until the age of 21 now to be able to pursue the special immigrant juvenile status under federal law. i can think of only one other state that has the ability to recognize children up to the age of 21, and i'm hoping other states may adopt this. this is an example, again, of how the idea of being able to give rights to people who are immigrants is starting to take root in some state legislatures. i can't speak for arizona. that's a different set of issues. but here in maryland, for example, there is an attentiveness and ability to provide an opportunity where it

should be offered to people. >> thank you. ann, you also worked in both d.c., maryland, virginia, the dmv, and we can all be sensitive to different cultural context, societal contexts in each state. can you give us maybe some anecdotes on your experience working with the community, working with clients in different states, in the sense of,ey, lack of -- sense you don't have rights or ignorance about the rights you have and who that has shifted, and also, how that hat less to the rise in notary fraud and how you address that, and also just touch on what exactly notary fraud is, white these populations are so vulnerable. it includes a lot of cultural context from the country they come from. i of you can address that. >> i'll use the power point. >> sure. >> and also a visual for all of you.

>> i need technical assistance. okay. [inaudible conversations] there you go. [inaudible conversations]

>> how many in the room are taking immigration law right now or have taken it? >> the scan shows you why more of you need to take it, then, regardless of your area of focus. >> it's an appropriate beginning to have technical issues because i do remember that from wcl and having just recently graduated, i feel like this is the second home so it's nice to be back. we started this project end in may of last year, with funding from the d.c. bar foundation now the maryland bar foundation is also on board because maryland and d.c. and virginia as well have seen this problem of notary fraud flourish, whether it's a lack of access to immigration

legal services. so what i say is the landscape looks like you don't have -- you have the right to representation but not at the government's expense. so regardless if you're a child who might be qualifying for a special immigrant juvenile status you have no right to counsel in the family law side or the innings side. -- the immigration side, and then if you're in immigration detention you don't have the right to counsel, and so what that is meant is that the services provided are being provided by private attorneys and by nonprofit attorneys who have to have a very high caseload in other to meet demand and keep the cost low. so it's a very challenging practice area as you will soon probably learn if you go into immigration law. what has also happened with immigration law is that the federal government recognizes that because there's so much need, there should be a carve-out for who are not just licensed attorneys to provide

services. so here you have a list of who can provide services under federal law. and so you have licensed attorneys, and whenever we have a new client come in who has a concern about the previous representation they received, we have to go to the state bar and see, well, were they actually licensed? and unfortunately there have been people who come through the door where the advertisements say, licensed, and all kinds of states, or other languages, and when we have clines from morocco and tunisia and a different language, and mike be the local african newspaper where it says, i'm an attorney and here's my court license number, and then when we actually look them up they're not license ode anywhere. so we all in this room have paid $200,000, gone to law school for a few years or maybe did an llm program, again, paid a significant amount of money, sat for the bar, passed the bar, and that's how we got to be attorneys and we have other people in the community who just take out a newspaper ad and

they, too, are attorneys. so, that's one area. then we also have board of immigration appeals accredited representatives and we have some at ayuda and we have accredited organizations that may not have an attorney on staff but can show the board that they have someone to counsel in questions of the law so they can provide representation for nominal fee. and we have law graduatessed or law students with no direct compensation, for attorneys who practice outside of the u.s., before the department hoff homeland security, and this is important, if you look in the newspapers is in area you'll see, i am a accredited by the supreme court of el salvador and guatemala and lots of other places and that means i can practice federal law. actually just had an argument the other day with someone who was like, where did you go to law? developments you know what

federal law is, i said, yes, he says, then you know i can practice. i said but you have to tell me what state you're licensed in. he said i'm licensed in tennessee, and sure enough, he is not licensed in tennessee, and you have individuals who have sort of decided they're going to meet this need just like attorneys are meeting the need but they're going to be doing it without the $200,000 of debt or the three years of law school and sitting for the bar. and you have carveouts for individuals and notaries say april a reputable with good moral character and i am providing this service. but this individual is a parishioner, i'm a clergy member, this is my neighbor. when you see the individuals we see in the community who are represent 1:00 people, there's no way that they can say that 100 people are their neighbor. unless they live in a big commune, which i guess is possible. anyway, then we move to what is the practice of immigration law. those are the individuals who can practice and then what this

practice? for this i think the best description is -- this is the law. the best description is actually from a 1982 opinion from the then-immigration and nationality services which says that if you go into a business and you are not sure what application you're filling out, then the individual selecting the form and saying, oh, you're here because you want to reregister for temporary protected status. here's the form. we're going translate it for you. you're eligible because of x, y, z, that would be the practice of law. if you entered with your application and you said i just need you to translate my answers to these questions, i've been applying year after year for the last 11 years, then that would not be the practice of law at least according to this decision. and it matters whether or not that person is charging and if they're charging for more than just their interpretation or translation fees. so, the next slide is really to sort of explain why there's this con con confusion in the commune

pause we severe ore clients as incredibly rational actors. they save up money for legal services and also have a perspective from home country of these being the businesses and the way that people advertise their services as lawyers. and they may be advertising them themselves as notary because a notary, for instance in mexico, has already served as an attorney for five years, person of good moral character, passed a rigorous exam, and that is also a person who has sort of a status in the community as being a good confidantes for all legal services. and so when someone in this area uses that same word, notary, it can cause some confusion because they may just be anyone here who is over 18, who has gone in washington, dc and paid $75 -- i guess only five dollars in

virginia -- and then has taken an exam and will authenticate the signature on documents and that's the responsibility of a notary and nothing more. and so when you use the sign and you create that confusion, then we lead to in the next slide, which is locally. so these are the d.c. storefront on the top, virginia advertisement on the web, the luis ramirez case which i'll talk about again, and then a maryland print advertisement. in all of these locations you have a very similar look to what we have seen in the previous slide where it was from el salvador, nicaragua and mexico. so you have seen this and known it from your home country you may go to those individuals for services. they speak your language -- i've seen this a lot on 14th 14th street. they're open on saturdays and sundays. we're not open on saturdays and sundays as much as the community would like. so unfortunately what that means

is that they're able to put out the shingle and provide a service. when they provide the service it can lead to damage on the immigration case that is sometimes irreparable, and so i'll talk a little bit about remedies on the immigration side at the end, but on the whole, it's very difficult to correct mistakes, very difficult to correct mistakes that happen on the criminal side when you're initially facing charges, and so that's what ophelia and jonathan already talked about. its incredibly difficult to reverse an act once it's done, especially when padilla is not retroactive, and when you have already applied to something, it's difficult to undo an application for immigration, and especially if you were never eligible in the first place. one quick-i guess, comment, along with this, with the ramirez case, what we saw, too was that he tide solis -- he did solicit other businesses where there was an attorney and he would want to essentially -- good to the business and say,

will bring you the client and then you hire me as your paralegal for each of the representationses and where you come at an ethical issue is if you are the supervising attorney of this nonattorney who is engaging in the unauthorized prove law because he is the only one with the client contact and giving the legal advice and assistance, then you have hill rule 5.5 issue. that prohibits an attorney from assistings someone engaged in the unauthorized practice of law and if you make a complaint, your locally to virginia state bar or d.c. bar with an unpractice of law committee you can have that attorney suspended, disbarred, or referred for criminal prosecution. that's important to note because it is a situation that you could find yourself the, in the future where you think, it's great this person has been in the community and can help me find clients but there are also be these offenses. >> also just a question, also the issue that a lot of these folks because they're not attorneys, then it's a lot more

intang able. how do you go after these people? can you talk a little bit about that? >> sure. i will address that again. with the last slide, just to give you some concrete examples. we look at this as a consumer protection issue in part and we have the maryland immigration consultant act which jonathan will touch on but in virginia and d.c. we have the consumer protection act, the miniact that each state has that models the federal trade commission act which is what a federal agency can use to prosecutor notary fraud. sory -- so i'll give you a couple of case examples to answer that question. we already heard a bit from manuel about the ramirez case and we saw four victims -- one just a couple months ago who jut heard now this individual is not

a attorney. he really did convince a lot of people and the radio station, ad had a picture of president obama in his office and he worked in sort of these offices with lots of cubicles and moved opened, and whenever me moved to a new office it was an office with a lot of people working. he would just say he was responsible for all of the them, and president obama was his friend. so, i am really someone you can have confidence in. and i wish i could say that ramirez is the only but unfortunately we have seen other folks, and what it takes to get law enforcement interested is to show a pattern or practice and victims have to feel comfortable making a complaint. sometimes that means we can work them to make an anonymous complaint if they're not inside using their own name or address. we can try to do what we can to protect any questions about the immigration status because we do

this as not svelte to the proceedings of -- against this individual who is practicing. and so what we saw with the luis ramirez case was the collaboration between law enforcement, hispanic bar association and also civil attorneys, there was a group of attorneys that brian king took a civil case of the ramirez victim and able to get an injunction and restitution for the victim and fines up to $25,000. and so we saw these things happening at the same time. but what unfortunately didn't happen with that case -- this is something we're trying to address next time -- there weren't immigration attorneys that were advising some of the victims because if there were, we would have advised the prosecute him in addition to the crimed was prosecuted for, for theft, for extortion. the article shows he was threatening people, i'm going to report you and say you're a drug

trafficker. i'm threatening your immigration status, and in virginia, a threat to immigration status is a threat to criminal prosecution, is extortion. sew went wanted to prosecute for extortion but they couldn't. so the way the project end and the way that we address the issue is holistic include there should be a conversation on the criminal, civil, and immigration side when these individuals are brought to justice. the last case -- just say briefly -- was an i.c.e. impersonator in maryland who worked alongside of fraudulent health lippic and was able to defraud victims, of $1.2 million. so the effects are disastrous on the community and this is something in light of the discussion about comprehensive immigration reform, we need to be concerned about, we need to tell the community that if someone is presenting themselves as having a hookup, like i can get you in the line for immigration reform, there's going to be a limited number of

visas available, and i've got the connection that they really need to have the red flag up when they hear conversations like that. especially when they see someone who is posing in the community, who may have an i.c.e. badge. if they're not able to verify they status of the individual they need to raise the issue with authorities. the project started as a consumer protection agency and is now a family and immigration legal services and social services provider. when we started the project it was to go back to the roots and say we needed to address the issue before it came to our doors because if the dam was already done to the immigration case it was difficult to work with the clients. and so you asked about what are the remedies. on the civil side we can use the consumer protection act in states and we can macon super complaints to the federal trade commission and if they have a pattern or practice they can to

after the perpetrators and ask for an injunction, ask for restitution or monetary damages. on the criminal side several things apply, like theft and fraud and extortion, and there's several recommends that exist. on the immigration side this is -- we wrote a manual on our web site that essentially outlines some possible immigration remedies for notary fraud, and we talk about motions to re-open because ineffective assistance of counsel and goss along with the conversation we had and could apply to counsel provided by nonattorney if you're creative with your argument at the attorney on the case. and then on the uv side, is a discussed, extortion is a qualifying crime for the uv system when the ramirez case, you did have individuals who were severely affected by the amount of money they lost and also by the damage list today their immigration case. it caused at least some of the

clients sleeplessness, having to be on sleeping pills, having other depression and other mental harm, and so we do think the facts are sometimes around for a victim of notary fraud. there's a case out of oregon recently where there were several victims of notary fraud who have applied for uv successfully and have done that, and one victim who attempt it suicide. so harm is there. we road like to see the u.s. citizenship and immigration services would understand that to incentivize immigrant victims to come forward there needs to be a protection of their status, and we think the uv prosecutorial discretion and motions to open would be helpful. i end by saying with all this confusion about what might be comprehensive immigration reform or what might not be, we're definitely going to see this problem continue to exist. so if you see it in the community, please feel free to

reach out to us. i can take complaints where it's just about a business you have seen an advertisement about or a specific victim who would be interesting in speaking with us. we work with the client where they're at and we can take the case as far as they want on the civil and criminal side. >> thank you, ann. we're going back to matthew. the cases you see and this fraud is largely happening in the immigration realm but also in tenant-landlord disputes and housing discrimination and wage theft and all these other areas of law where the notaries pass themselves as attorneys of all areas. thank you. drilling down on one area in particular that i know matthew wants to raise, i think is important to highlight, medical deport -- moving on from when a

subject is -- or a defendant is part of a trial, then subsequently there is the issue of deportation, where similarly the deportation proceedings are entirely another area where the representation one receives there can also be determinant, and so their matthew tell us more about that and how that also ripples into a number of different areas of law. >> absolutely. i'm going to make use of power point briefly. hopefully it will work here. this is an issue that -- i don't know how much it's on the radar of the legal community in general, although everything i am -- there we go -- it's come across my desk a few times, and when i started researching it a bit, it seems it is more prevalent than one might think.

the term that gets used is a few terms. medical deportation, medical rendition, are two that i've heard used. and basically is that to avoid costs for carrying for uninsured or underinsured patients, which are largely -- shy say uninsured or underinsured immigrant patienteds, many hospitals have begun repatriating residents who are in need of medical care. mr. jiminez was deported by a chicago hospital and died shortly thereafter. hospitals are getting urgent care immigrant patients in who don't have -- they don't have insurance or who are underinsured and they're looking at ways to avoid long-term care and they're getting them only of

the countri' and going around any official immigration services, not going through homeland security or uscis or anything official. this is a picture of a different mr. gems in the who was -- jiminez who was deported by a florida hospital to a village in guatemala, and his story highlights the problem. he was an undocumented immigrant living in florida, was hit by a car and was basically on life support in florida for a lengthy period of time, and then was in a rehabilitative stage for what appeared was going to take at least a couple of years. and what the florida hospital decided to do was -- they initially tried to seek during the actually went to state court to seek permission to forcefully remove him. he luckily had a guardian who

was -- had been appoint who'd fought back on that. the state court said, sure, you can go ahead and have him removed. the guardian immediately appealed and the appellate court said to -- told the hospital to respond to the guardian's assertions that the state court has no -- and the hospital has no jurisdiction or no ability to actually deport anybody. but before the appellate court could even rule the hospital under dark of night rented a helicopter for $30,000 and flew the guy out of the country. which then prompted a contempt citation against the hospital and a personal injury suit against the hospital, which i'm told, although it is a confidential settlement, actually did result from recovery. but nonetheless the guy is no new guatemala instead of in a hospital in the u.s. one last example that i'm going to highlight here is -- this

doesn't only happen to undocumented immigrants. an on antonio was undocumented, working in arizona, and was in a car crash, and the arizona hospital put him in an automobile and drove him across to mexicali and left him there in a hospital. he was -- luckily his family was able to contact a california hospital that was willing to take him and they were able to actually get him back into the country for recovery in a california hospital. so, how big a problem? there's been reports there's at least 800 documented cases or this and this is just ones that are documented. most hops are -- hospitals are trying to do this without anybody knowing about it. the costs of repatriation are high, obviously the care is not nearly as good for many people

outside of the country as it is here, and the biggest problem i think is really one of informed consent. this sort of goes to the -- back to our padilla argument from earlier. one of the things that is not being told to these patients are the immigration consequences 0 them leaving. even some of the documented immigrants who are injured and then hospitals say, we're going to fly you back to your home country to recuperate. nobody ises telling them, well, that even though your a lawful resident here, if you're gone for more than six months your able to become a permanent resident may be jeopardized. so many people are falling victim to that. often times -- this goes to at the story that came across my desk that i want to relate to end this. there are often guardians who are appointed to these people

who don't have the best interests of the patient in mind. i think we're all used to the concept of a guardian being appointed to then look out for the interests of the person who they're there to guard. and to act in their best interests. i had a case a couple of years ago regarding a man who was a patient in the fairfax hospital who was here on a -- patient from nepal, who was here -- he was documented, here on a diversity visa. nepal is one country that qualifies for diversity visas. he was here on an immigrant series sacker authorized to work. worked at a local gas station, and while crossing route 50, he was hit by a car. was in a coma in the fairfax hospital. his 21-year-old daughter was

able to come over and be with him but the hospital convinced the virginia state court, rather than april-pointing her as his guardian to a point a lawyer who the hospital has chosen to be the guardian under the plea text -- pretext she wouldn't be sophies tick indicated in the ways of u.s. law. never mind she would most likely have the interests of her father at heart. this guy -- this lawyer decided it was in this man's best interests to -- even though he was on life support and feeding tubes to have a plane chart erred for him to put him on the plane with all this machinery, and fly him back to nepal. and the one caveat being that his daughter had ahold of his passport and refused to give it up. but they under no sense were they eager to try to go to a court. they wanted her to turn over the passport to the hospital and for

them to just put him on this plane and off heed go. we were luckily able to resolve that readily because i think fairfax's general counsel was smarter than other hospitals in that when we forwarded some of the instances, such as the florida case where the hospital was found in contempt of court and the personal injury suits that result in this sort of action, they decided to -- they changed their mind and did find rehabilitative care for the man. but it's led know think- -- led me to think that there are perhaps -- this is going on more than we know about, and i guess i would just leave you with, if you do ever hear of anything like this going on, know that it is -- there is some abuse that can happen with this, and to -- that perhaps the patient or their family should be seeking

assistance. thank you, matthew. i think that hits home in the sense of how real this could be for any of us, or, for example -- i know in virginia, some moving traffic violations could constitute a misdemeanor, so for even a green card holder that could be disastrous. ...

>> i would think you have a duty to correct that. you would have in a typical wage-case that is not an element of the claim. an element is they were authorized to work and they did perform the work. i have never been put in that situation. i don't know if anyone else has. >> i have not because i know my client's status. what the answer depends on is what we are talking about. if you say, in an immigration filing that my client entered on x-day and x-location and

obtained this x-status that is relevant. in a criminal contect it isn't relevant. it depend ons the nature. >> there is a set of laws that are in conference with each other on this point. for example, for people mile filer between the homeland security or before the department of justice or office of immigration review there are federal regulations that require concern disclosures to the court before the tribunional and that is a model of state law and we talked about the model rules and how each state adopted a rule. and those rules can be different than what the federal regulations are. so sometimes those things are in

conflict. even more so there are duties of c confid confidentiality. those are counter balance to the duties of the tribunal. it depends on the context of the situation. that is important and once you know that you can look at where to go from there exactly. >> other questions? >> well, i just want to go back to pudear really quick. in terms of informing the client of their immigration consequences once a conviction is made, how much is informing them? we were working on a case and when the judge said did you tell your client there is immigration

consequences the answer is yes. and it is like what does that mean? how much is informing? do you say if you are convicted you will have this consequences and it will be aggrivatted. or do you just say there is going to begration immigration? >> it was clear on the face of the statue is you have these drug and you are deportable. i think there is no question the supreme court was saying if the subject is clear on the face that this conviction is going to lead to deportation you have a duty to say you are removable. and in fact, contrary to what

some -- i think that in the past there has been a little myth about the complexty or lack thereof of immigration law. and it isn't complex. there are parts that are going to be more complicated and you are putting together the 18.2 from virginia or whatever the maryland is because i took the bar there but forgot the statutes name and applying that to your immigration analysis. it could be more complicated. i am not sure how you determine it so complicated you go out and get immigration. if you don't know the answer you should go get an immigration attorney and that is what i advice criminal attorneys. >> i think it said if the

consequen consequences are clear, you have to tell the client. if you open up the immigration nationality act and open up 337, the part that talks about how you can be deported and talk about the crimes that render that and if you can see in that statute what the problem is that is fine. but there immigration law is complex. what constitutes an aggravated sell felony and that varies. you have to look at the regulations and the interpretation given. it is very

complex. if you have someone convicted of murder that is specified in the statute and you know that is resorting in deportation or removal. something less clear, i believe you should refer out to immigration counsel to give proper advice on that matter >> and sometimes it is situational. everyone has to engage in the categorical go-by and maybe not or maybe this. but there is the circumstance of the client as well. a person and this is by what i mean it gets complicated. it could be this person entered lawfully on a visa for school and never left. are they going to be deported on the first time? no. but there is the list of laws

that will apply. and there is the other section of law. i have said personally to criminal defense attorneys i think you need to refer out all of the time. and there are different ways they do it and it covers them and i think they have to because the duty is on them. >> i will be hired as an ex pert witness and give a statement to a judge or appear in court and talk about what the immigration consequences are. in those cases, we can plan the safe harbors and the things people can work with that have the least immigration consequences. i would always recommend that if someone is not a u.s. citizen they ought to get an immigration attorney involved. >> is that how high the bar is

raised because of this or is this idealistically we would want them to refer out? >> i think the supreme court says if it is clear you have a duty to inform them. if it isn't clear you have a duty to tell them there are immigration consequences related to that and that is the only tricky part which is okay do you say this is a really -- i don't know understand. you have to go get an immigration attorney. and i think the answer to cover yourself as a criminal attorney the answer is you have to go get someone. and we have to get this advice. if you know as a criminal defense attorney know that the client and defense has xyz immigration status you are not doing yourself a future by not forcing them to getting the counseling they need. if they don't want to do it,

they don't but you've to cover yourself. and i know a lot of defense attorneys make the call on their own because they want to know. >> and thank you. we have our next question coming up and and let me touch on a question. for each of you i am curious to know how your practice has changed or have you have seen the other practice of attorneys changing and seeing it has an impact on the way people run their practice and particularly in how you see it play out in cases because of the place where you are in the proceeding where team or resources are limited are you seeing attorneys branching out and consulting more with colleagues in other areas of law in order to meet these standards? >> here i will go first. for me, i think there is a

difference. i have to say that i mean a lot of criminal attorneys i have worked with over the last ten years are aware of the immigration consequence and i have had long-term relationships with attorneys where we go back and forth and discuss this. so for some i think there is a change and for others i think there is not. other people are aware this is something affecting their client and that is good. in terms of, i don't personal consult with criminal attorneys, well i do but i am a regular practiti practiti practitioner. and i think they need those in public offices and i think where they have them it is outstan po. standing. identify a relationship with fairfax and there is a limit to

how much you can give. in maryland they people that know more about immigration in their office and in the district of columbia and they have the funt funding for it which is remarkable. >> it isn't just in the criminal context. i do family law and get hired there and i will be asked to advice on a pre-marital agreement or help someone figure out if child support is going to be an issue, how child custody is affected, international proper rights. i think attorneys who generally look at their client as people they want to help and serve on a holistic sense will be more likely to reach out for immigration assistance. i think attorneys who look at their job as being discreet and limited and just in the context of the law they practices, those

attorneys are not going to ask anybody anything that relates to their cases. not for bankruptcy or tax issues or anywhere else in law because they say they are doing a discreet service. in those cases, i try to educate attorneys when i get a chance that they need to think about the overall approach and the impact that things can have. you cannot just look at something in a small box because people in our communities have great numbers of legal issues and they are touched on in a number of areas not just a single thing like criminal. >> the one area i am increasingly giving people an opportunity to get a second opinion is i get asked about what are the risks, particularly an undocumented immigrant who is the victim of wage theft and they want to know the

possibility of deportation. i tell them in my own experience i have never had a client run a foul with that but for peace of mind they should talk with someone else and i will give them refers to consult on that >> we saw this play out recently in a good way for all of the clients in the fraud matter where a victim was being prosecuted because he had assisted in the overall scheme as well. so the maryland public defender representing this victim in the criminal prosecution referred to the person in office that knows the issues and is there to advice criminal defense attorneys about possible immigration consequences and through working with the client realized this was a victim and refer to case and get it so they

didn't prosecute or move forward. it can result in not prosecutor the matter when you have someone saying this is an immigrant and victim of a crime because of issues with interpretation is being prosecuted. i saw it play out that one time very well. >> thank you. question? >> how can you find out through the freedom of information act if a person is an american citizen, legal or illegal immigrant? >> well, i guess you would file a foya but it would have to have a signature. a birth record? in terms of dhs i don't think you can get it directly from them. not you as the random person.

the person who wants the information from the homeland security is that person. i want my paper i must sign the request. >> you can do census data research and other research through the government national record agencies. for example, if you want to find out if someone came over on a ship manifest. that information is available to search under the freedom information act or something that is published online. for someone's immigration records, those are usually a matter of privacy. so the federal government only releases them to the individuals requesting them, their only personal representative or a representative like an attorney. >> what if you are thinking

about a lawsuit against that say person and you are trying to get that status >> if you sue someone and your question is relevant to your lawsuit, you can see that in discovery. usually immigration status and citizenship isn't relevant to most matters in the united states but perhaps in your case it might be relative and subject to discovery. >> i was thinking prior to discovery or instituting lawsuit how would you find out the stat status? >> i don't think you can. the birth documents are there. >> and public figures have less of a right to privacy. you could always ask the person as well. >> let's say they have a license

of some time like a pilot's license. would he have -- i would be able to check with the faa to see if he is a citizen? or non-citizen? >> i don't know the answer to the faa question. that is probably going to be regulated. whatever the agency is it is going to be reb regulated. by the agency. so if there is a license requirement, i think you would foyer them for the application. i don't know if they would issue that. a, i know the status question is a requirement so therefore that information may not be there. >> and all of the federal government is controlled by the freedom information act and the federal privacy act so no matter what federal agency you go to it is governed by the same law and rules. >> thank you. any other questions?

i would like to know -- well if we could just sum up, ann touched on remedies available but as far as mal-practice more generally in the situations we discussed today, can each of you talk about, at the state level i guess also, different remedies available to clients. >> the remedy i guess depend on the right we are looking for. i can only speak to the remedy of behaveious in virginia because that is all i do on respect to that level. it has been limiteded --

limited -- by the commonwealth and that is the end of that. hopefully we have the case and it will fall within the statutes. >> how does that differ than the cases at the federal level? the cases you might be handling in immigration or asylum? >> you mean the criminal cases? >> is there a difference between state and federal? >> only to the extent that the criminal outcome, whether state or federal, it will have its affect on what is happening. i don't handle them personally because i am licensed but i am not a criminal practitioner. and that is why i have one in my

office. that would be a remedy, yes. it translates itself in immigration court and later on down the road. with respect to the other issues in terms of fraud, i would prefer to come back on that. i will say in the end the negative one is what they are doing in maryland and the district is a real inspiration and we should have more in the commonwealth. the commonwealth has what the virginia bar does and that is their onauthorized committee. the virginia state law is designed to please lawyers, not non-lawyers. they are volunteers lawyers on the committee. it is long road filing a complaint with a virginia far. at the end of the day, what virginia needs is a better statute, like the one we hear

about from john and ann. but we need more bite and the possibility of more than just a class one misdemeanor. >> maryland has a statute that gives remedies when people consult with audio or use non-lawyers. section 14-3301 through 3306, i believe is the statute of the law we are discussing. it will prohibit immigration consultants from providing legal advice for immigration matters. it goes beyond that and i had a litt litt little involvement on this.

one thing it does require is they have to have a written contract with the individual about the services that will be provided. it can only be secretary services like translations or typing down information exactly as it a provided. the statue describes the legal services to include providing forms and telling people how to fill out forms and filing the forms for them and all of this constitutes the provision of legal services. and an immigration consultant as the post in a place in a business and if the person isn't an attorney licensed to practice law and that is visible to people searching immigration consultant services. the statue provides for the ability to sue civilly and

obtain money paid to the consultant and three times that amount with federal damages. it provides compenitation for the attorney bringing the lawsuit and that is important because they can get co compensation as well. and the person can receive up to a year in jail. and that is per fraction. they are not just taking on one case. it is dozens and dozens and we are talk about a substantial penalty that can be applied. this statue has been around for ten years. it is fairly new. when where was attorney general i provided information about this to the public to encourage people to come forward.

so there are remedies in this particular area. >> and i would say i guess the struggle that we see even with maryland immigration consultant act is it too late once they realize they have been a victim because there is a year statue. so we are trying to get it out before or directly after so they can take advantage of the remedial measures. one of the issues with seeing the consumer protection act is they may jump ship or move money somewhere we don't have access to it anymore. so i was interested to hear manual say he was getting $11 million from puerto rico because we have clients who are owed money from him so when he is

released i am curious if we can look into that. that is probably the next step with that case. but i would say the tools that we have in our tool kit are great. but i think we need more of a path to law enforcement and more involvement and concerted effort to address this issue and assist victims on all fronts so if there is a civil prosecution and the consumer protection office could prosecute civilly they would file motions in limny to protect the status of the immigration complaint. that is one tool we think could help create more ability for people to speak up. >> thank you. and we have two minutes so last parting thoughts from the panelist. matth matthew, we will talk about you and whether it is what we can do or more the topic at large and

the practice. >> one of the struggle, or both the struggle and effort or the goal of what why trying to do in our grant rights project is to balance both protecting from risk, those persons who where one's immigration status is going to bear on their ability to exercise their right and recognizing they those are the most vulnerable people and being exploited the most and has the most reason to exercise those rights. at the outset of any of the cases, we are doing an analysis of how is immigration status going to play a role here. and sometimes the fact that a client is undocumented is going

to be an element of the civil rights abuse. the fact is you will have an employee who has been sexually harassed or assaulted for years because the employer has threatened to turn them over to ice is what they will say. and that will beat people into submission with that threat. we are keen on trying to give voice to those people but at the same time not putting them at a risk that they haven't consented to being in. >> any other thoughts? >> i would like to share with you a brief statement that i heard in the district court in maryland which is the general

level court in a domestic violence case in which i was the attorney for one of the people involved who was the victim and survivor in that case. in that particular case, the opposing party had taken the passport from this person and had been holding her passport and threatened to call immigration in order to have her removed from this country. he is married to her and they have a child together. the judge wasn't an immigration lawer or judge and not an immigrant herself said i can think of no greater abuse you could commit on a person than withholding her passport and threatening to have her deported and taking her away permanently from her child. how dare you. and so we are talking about access to justice issues, there

is a recognition that is going among judges and state legislators, not uniformally, b the rights and remedies are out there. and people that don't speak our language or seem to be the same as us, people are understanding that immigrants are important people in this country and the rights of the immigrants should be the same as everybody in america. thank you. >> thank you. i think that is a great note on which to end. great. wonderful. thank you all so much for being here and an applause for such an exceptional panel. [ applause ] >> up next on the communicators, the talk about the