Experienced family law practitioners know it is critical to protect their client’s interests, but do they know how to consider and defend the additional interests that pertain to noncitizen clients? Ideally, a litigant’s immigration status would not affect a case. In reality, there are special considerations when working with immigrants: they may have preconceived notions and incorrect assumptions from their country of origin, complex trepidations related to turning to the American court system for help, or specialized needs that must be considered to protect their immigration status.
PREPARING TO WORK WITH NONCITIZEN CLIENTS
Before consulting with a prospective noncitizen client, ask yourself: am I comfortable communicating with this client? While more than 50% of foreign-born United States residents are proficient in English,1 do not assume based on someone’s nation of origin or how long they have resided in the U.S. whether you can conduct your meeting solely in English; a noncitizen client who speaks strong English may still have difficulty grasping complex subjects in their second language. But don’t fear working with a non-English speaker — using interpretation services, non-English speakers can understand and heed your advice with confidence. Consider first communicating with a prospective client in writing to assess their comfort with English.
In the event your client requires interpretation services, the court must provide interpreters so non-English speaking litigants can understand and contribute during court hearings.2 Often, you can also employ those very same interpreters and/or translators3 for meetings and case preparation so your client can understand the case process from initial consultation to judgment. Whenever possible, hire a court-certified interpreter, who are required to pass exams that not only verify their ability to interpret from the target language to English and vice versa but also prove their knowledge of the court process and legal terminology, ensuring that they are able to interpret legal concepts effectively.4 Qualified interpreters are the next best option; they are tested for language interpretation competency but not the court process knowledge or legal terminology.5 These options can be costly, so virtual interpretation/translation services like Language Line6 offer a more affordable route.
What is not a good option, however common it may be,7 is using the client’s child as an interpreter. This can harm the parent-child dynamic and create undue stress for the child.8 If the client suggests an adult friend or family member who is willing to interpret, this can also be inadvisable as such interpretation disrupts the confidentiality of the communication and could make the client less willing to disclose uncomfortable but important facts.9 A neutral, trained interpreter is best.
NONCITIZEN ACCESS IN FAMILY COURTS
Many noncitizens, particularly undocumented immigrants,10 have the false belief that they cannot turn to the courts for recourse due to their immigration status, thinking the law will not protect them. If a prospective client has made it to your office, perhaps it is because they do not hold such a belief, but it can be beneficial, even stress-reducing, to assure a noncitizen client that regardless of their immigration status, the law applies to them as well.11
Some noncitizen litigants believe, incorrectly, that they cannot get divorced in the United States because they were married in another country. Generally, marriages performed abroad are considered valid in the U.S. if they were entered into in accordance with local law.12 As with any divorce, at least one party needs to fulfill the jurisdictional and statutory requirements of the locality where they are filing.13 As long as those requirements are met, a U.S. divorce is the proper legal remedy for valid marriages.14 Whether the divorce judgment would be valid in their country of origin, however, is dependent on that foreign country’s reciprocity schedule. Counsel should advise their client that the divorce is valid in the U.S. and that the client will need to consult an attorney in the locality where the marriage took place to properly determine reciprocity.
You may also find that noncitizens fear that leaving their marital homes will result in losing custody of their children or rights to personal property due to “abandonment.” While this may be true in many parts of the world,15 it is not the case in the U.S. and should be addressed at intake so clients are aware that separation from their spouse or partner is not an abdication of their rights.
CUSTODY, CHILD SUPPORT, AND NONCITIZENS
Many noncitizen clients — and some family law practitioners — believe undocumented immigrants cannot be awarded custody of their children due to their lack of status. There is no basis in law for this belief. A parent’s immigration status does not preclude them from gaining or retaining custody. However, status can be weighed within the best interest factors16 like any other fact surrounding the family. Thus, advocates must be prepared to address any concerns a judge may have about their client’s status.
Similarly, many immigrant parents incorrectly believe that child or spousal support cannot be ordered if the payee and/or the payer is an undocumented immigrant. However, regardless of whether the parents have work authorization or a Social Security number (SSN), if child support is requested and the Michigan Child Support Formula recommends that it be paid, support may be ordered.17
There is a common misconception that undocumented immigrants do not pay taxes; this is untrue.18 Though undocumented immigrants are not legally authorized to work in the United States and (usually) do not have SSNs, it does not mean they are not filing U.S. tax returns. A court may be hesitant to impute income19 to a party not authorized to work in the U.S. and, therefore, does not have a reasonable likelihood of earning the potential wage. However, it is quite common for undocumented individuals to work, pay taxes, and file U.S. tax returns with an individual tax identification number (ITIN).20 Practitioners may also encounter an undocumented client or opposing party’s W2 containing a SSN that does not belong to the client or does not match their ITIN.21 These documents can be utilized to prove an undocumented payer’s actual income, resulting in an award of child support.22
Enforcement of such orders can, however, be complicated by the payer possessing no valid SSN or driver’s license.23 Additionally, under-the-table payments can complicate enforcement. But such facts thwart receipt of support for immigrant and citizen payees alike.24 Even if securing payment is challenging, support that is ordered and unpaid remains owed to the payee and can result in the payer being charged with a felony25 and denial or suspension of passports26 or other legal documents.27 However, unlike citizen parents, nonpayment of support by a noncitizen can result in the inability to adjust status or removal from the U.S. due to the reflection on one’s moral character.28 Payee clients may also be concerned that their payer can escape their support obligation by fleeing the country, but that is often not a valid concern as the payee can still enforce their support order29 depending on the country in which the payer is located.30
SPOUSAL SUPPORT, AFFIDAVIT OF SUPPORT, AND NONCITIZENS
As discussed above, noncitizen clients can be awarded support in family court cases just as citizen clients can, but certain noncitizen clients have an additional argument for an award of spousal support that citizens do not.
When a United States citizen or legal permanent resident wants their foreign-born spouse to come to the U.S., the resident spouse petitions the U.S. government for a visa.31 Part of that application process requires the petitioning spouse prove sufficient income to support their emigrating spouse32 and sign an affidavit of support (Form I-864), thereby becoming the sponsor financially responsible for the noncitizen spouse until they become a U.S. citizen or are credited with 40 quarters of work (usually 10 years.)33 In 2011, the Michigan Court of Appeals determined that “divorce does not terminate your obligations under the Form I-864,”34 meaning that family court can enforce your noncitizen client’s rights under a signed affidavit of support35 by ordering support to be paid by the opposing party until the noncitizen becomes a U.S. citizen, completes 40 quarters of work, or dies.
Courts award spousal support based on a multitude of factors including the length of the marriage, the abilities of the parties to work, the needs of the parties, etc.36 Those factors can potentially result in a judge ordering an amount of support lower than the financial support due to a green card holder under the I-864, which requires that an individual’s income be maintained at 125% of the poverty line.37 Attorneys representing the beneficiary spouse should educate the court about the I-864 requirements to secure an appropriate spousal support award for their client.
ASSUAGING THE NONCITIZEN CLIENT’S FEARS
A common, and valid, concern noncitizen clients pertains to whether an impending divorce will jeopardize their immigration status. Commonly, when a foreign-born spouse is granted a visa based on the petition of their U.S. citizen or legal permanent resident spouse, they are afforded conditional resident status for two years.38 Prior to expiration of conditional resident status, the parties will jointly file a new petition proving they are eligible for permanent residence without conditions. The new petition must demonstrate that they remain in a bona fide marriage.39 If the new petition is granted, the conditions on permanent residence are removed and the immigrant spouse gains legal permanent residence valid for 10 years.
However, should the parties initiate a divorce or even separate prior to the two years, they can no longer file for joint removal of conditions.40 Unless there are special circumstances present,41 the immigrant spouse must independently file the petition to remove the conditions in what is widely known as a waiver of joint filing.42 In this situation, the immigrant spouse carries the burden of proving that the marriage was entered into in good faith and not for the purposes of circumventing U.S. immigration laws.43 This can be a difficult standard to meet. Thus, wherever a family law practitioner is uncertain about the immigration ramifications of a divorce, they should refer their noncitizen client to an immigration practitioner who can work in tandem with your office.
It is important that practitioners have cultural sensitivity and educate themselves on the inherent fears and unique challenges that noncitizens face in any interaction with U.S. court systems. This is where we use the counselor side of our attorney/counselor titles. Immigration law and the quest to attain and acquire legal U.S. status is an extremely challenging notion for many individuals. The State Bar of Michigan Immigration Law Section is here to help and available for any practitioner needing assistance.