"Deportation is a life sentence," according to Professor Sarah Rogerson, director of the Immigration Law Clinic at Albany Law School. Rogerson was speaking at the Robert J. Schack Memorial Program, held by the Committee on Children and the Law during NYSBA's Annual Meeting.
Her topic covered the minefield that a family court proceeding can present if one of the parties is undocumented or otherwise lacks permanency. Rogerson offered examples: An undocumented woman whose husband had molested their daughter was put in deportation proceedings because she pleaded no contest to a child neglect charge for not preventing the abuse. A woman got a temporary restraining order (TRO) against her boyfriend, who was awaiting a hearing on his immigration status. She rescinded the order, but the Department of Homeland Security found the boyfriend's fingerprints from the TRO matched prints in its database, which rendered him 'inadmissible' as an immigrant to the United States. While that did not make him deportable, it scuttled his chances for permanent residency.
When the consequences of entering a courtroom are that severe, Rogerson explained, people can face terrible choices. For example, an abused spouse will not request a TRO against an undocumented abuser if the family fears the abuser's deportation more than the abuser's presence.
Rogerson conceded that once a party's status is revealed it can be very difficult to get a deportation order reversed. On rare occasions a party is found to warrant 'prosecutorial discretion,' as in the case of the woman whose daughter was molested. But that does not confer permanency; it is more like a DACA (Deferred Action on Childhood Arrivals) protection, which itself lacks certainty.
According to Rogerson, best practice for lawyers and their clients with uncertain immigration status is to avoid the subject altogether, which often is a viable option.
Status is neither needed nor relevant to a stop for a broken taillight or a request for an order of protection. Rogerson said that a lot of people tend to blurt out what is on their mind - "I'm undocumented!" - when confronted by a police officer shining a flashlight through the car window. She recommends counseling an immigrant with uncertain status never to offer that information. "Keep admissions regarding immigration status off the record," she said.
"Prepare your clients so they know the legal boundaries of their disclosures and the consequences" of breaching them, Rogerson said. She gave the example of a young immigrant in a juvenile delinquent proceeding who admitted to having once smoked a joint. This admission did not require his removal from the country, but it made him inadmissible.
Rogerson urged lawyers to have those conversations before clients enters the courtroom and to make sure clients knows that, at a hearing, they can ask to consult with their attorney before answering a question.