THE TRUTH ABOUT

IMMIGRANTS AND THE

LAW LESSONS LEARNED FROM HELPING

OVER 15,000 IMMIGRANTS IN NORTH CAROLINA

RICHARD “BERT” DIENER

Limited Liability/Disclaimer of Warranty:

While the publisher and author of this book have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the content of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for every situation including yours. You should consult with a licensed attorney to determine if these strategies and others are appropriate in your situation. This book has been written and published for information purposes and receipt of said book in itself does not establish the attorney-client relationship.

Copyright © 2015

All rights reserved. This book may not be reproduced, in whole or in part, in any form or by any means electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system now known or hereafter invented, without written permission from the author.

CONTENTS

Introduction .................................................................................................................... 1

Testimonials ................................................................................................................... 4

Truth #1 You are not in good hands with insurance companies ... 7

Truth #2 It does not pay to be macho ....................................................... 7

Truth #3 If you are undocumented you have rights but you must be willing to defend them ............................................... 8

Truth #4 If you are in an accident and you don’t have a driver’s license you can still get compensation ................................. 8

Truth #5 Insurance companies want you to handle your own claim and not hire a lawyer because they keep more of your money ................................................................................. 9

Truth #6 Insurance Companies and many attorneys base virtually all of their decisions on the strength of your case simply on what others write about you. Often the information they rely upon is wrong because of language difficulties or biases ................................................... 9

Truth #7 If you are an immigrant and are hurt at work, your immigration status doesn’t affect your ability to get medical or financial help ................................................... 10

Truth #8 If you are working under another person’s name and are hurt at work, you are still entitled to workers compensation benefits ............................................ 11

Truth #9 Workers Compensation insurance companies will often try to seem like they are doing everything to get you back to work hoping you don’t find out about everything you are entitled to ............................................... 11

Truth #10 If an employer threatens to call ICE if you file a workers compensation claim, you can sue the employer and win (we have) .................................................. 12

Truth #11 It has been proven in North Carolina you are more than 90% more likely to have your vehicle searched if you are Hispanic compared if you are white ............... 12

Truth #12 When police stop you, the law says they can lie to you but you can be charged with a crime if lie to them ....... 13

Truth #13 If the police are asking you questions, it is because they are trying to build a case against someone and it is probably you ......................................................................... 14

Truth #14 If you are a victim of a violent crime and are undocumented you may be eligible to apply for legal status ...................................................................................... 15

Truth #15 What may be a good result for an American in a criminal case does not mean that it is a good result for an immigrant .......................................................................... 16

Truth #16 If any lawyer guarantees you a criminal result, run ..... 16

Truth #17 Taking care of a criminal charge doesn’t mean that charge is wiped off your record ............................................. 17

Truth #18 Just because someone says they will drop the charges against you, doesn’t mean the prosecutor will ............... 18

Truth #19 A hunting permit doesn’t give you the right to have a firearm if you are an immigrant, it is a felony under federal law ......................................................................... 18

Truth #20 If you have had a driver’s license in North Carolina under another name and later get one under your real name, you can count on the government finding out ... 19

Truth #21 Using a false name in the past doesn’t protect you from future punishment if they took fingerprints..19

Truth #22 Just paying off tickets are usually more expensive than getting the help of a lawyer .......................................... 20

Truth #23 If you are working or worked under someone else’s name in the past, law enforcement generally comes looking when someone files a report because money is owed ............................................................................................. 20

Truth #24 You are on the hook for anything a notario puts on an immigration petition ............................................................ 25

Truth #25 Immigration rules and policies are changing rapidly so don’t rely on what your cousin’s wife’s lawyer said ..................................................................................... 25

Truth #26 Just because you may have lived here for over 10 years it doesn’t mean you can become legal .................... 26

Truth #27 As many as 1 out of 4 people who might apply for DAPA or DACA are eligible for legal status ....................... 26

Truth #28 You don’t need permission from your spouse to get divorced, even if you were married in another country ............................................................................................. 27

Truth #29 Every parent that is an undocumented has a right to go to court and seek custody of their children ............... 28

Truth #30 You have a constitutional right in the United States to get married regardless of whether or not you have legal status ........................................................................... 28

Truth #31 It is legal to own land and a home in your name in North Carolina without a social security number but that is not the case with a car or a mobile home .... 29

Truth #32 Many immigrant employers frequently count on their employees not knowing federal and state wage and hour laws but the government will investigate them anonymously for free ................................................................. 31

Truth #33 Immigrants are often targeted by people who sell land in lease to own arrangements and most of these immigrants have rights to protect their investment that even the sellers are not aware of ................................. 33

Truth #34 Not everyone is eligible for an immigration bond hearing, especially if you already had one (before you were ready) ........................................................... 36

Truth #35 Just because you pay a criminal bond, it doesn’t mean you will be released from jail ..................................... 36

Truth #36 Receiving public benefits may or may not affect your ability to gain legal residency ...................................... 37

Truth #37 Preparing your own immigration petition may be the biggest mistake of your life .............................................. 39

Truth #38 If you have reentered the United States after being deported for a felony you are likely a priority target of ICE ................................................................................................. 40

Truth #39 ICE may not even want to deport you or a loved one (prosecutorial discretion) ....................................................... 40

Truth #40 Many immigrants are eligible for work authorization and they don’t even know it ...................... 41

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INTRODUCTION

It was 1994, and I was a young Marine stationed in

Guantanamo Bay, Cuba. I was a member of Rifle Security Company Windward (remember the movie “A Few Good Men”), and my unit’s job was to provide security on the fence line separating ourselves from communist Cuba. While on the fence line, I had the experience of assisting Cubans escape their communist homeland. Most of those desperate souls walked through minefields; some swam through shark infested waters; but in every situation our government chose to accept and welcome them to the United States.

Fast forward to 2005. I was no longer in the Corps, I had graduated law school, and I was living as a small-town lawyer in

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eastern North Carolina. My work was no different than any other local attorney. At least that was until I met Celia. One afternoon a Spanish-speaking woman walked into my office on a mission. She was determined to find answers for immigrants like herself. Celia was from Mexico and not one to stand for injustice. When I met Celia, she was trying to find someone to listen to yet another story of an immigrant mistreated by the system. Some of the stories she was carrying were horrible. But Celia was no victim, so she refused to accept the frustrations she and her community faced and sought help. Soon Celia would bring me more stories of immigrants desperate for action. Eventually it became a stream of similar experiences. Many of the issues we were facing were new to me, and I too had difficulty finding answers. What we relied on was the spirit that defines Diener Law: “find a way.” We continue to refuse to accept the standard beliefs or limited options for our immigrant friends. We believe if we care enough, if we try enough, we will find a way. This is what Celia demonstrated to me over and over again.

It didn’t take long to realize working with immigrants filled me with a sense of purpose, and it was my calling. I read once that you don’t find your calling, it finds you. In my situation Celia was the messenger. I find it ironic that the government trained me as a Marine to support and defend the Constitution of the United States against all enemies foreign and domestic. The irony is that after meeting Celia and representing so many immigrants, the biggest threat to the Constitution was from the government itself. And what my training didn’t teach me, but my faith did, is that helping those Cuban refugees is no more right than helping the undocumented immigrant population already here in America.

Diener Law’s mission has been extended to protect immigrants from insurance companies, individuals who prey on immigrants, and from even poverty itself. Injustice comes in many forms, and I am honored to know Celia and am thankful

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for the lessons she has taught me. And still to this day, I get calls from Celia to take action. Looking in hindsight, I can see it all was meant to be. My last name is German and means “servant.” A servant to the immigrant community is what I am proud to be.

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TESTIMONIALS

My name is Marbeya, and my story is that that I, for a long time, was undocumented in this country. We then contacted Diener Law, and we were informed very well. My case has been very difficult, but thanks to Diener Law who has helped us, I now feel that my eyes are open and can see the light where once there was only darkness. I recommend Diener Law to everyone for all their immigration cases. Thank you.

~M. Hurtado

In my life I always had many difficulties because I was undocumented for many years. A few years ago, I was a victim of an assault that almost cost me my life but thanks to God, I was able to move forward. Diener Law were my attorneys all the time, and I am proud to say that I am now a legal permanent resident. I consider Diener Law my second family. I am a new person, with a new life. I now have my driver's license and social security number. I am living the American Dream. Thank you.

~D. Domiguez

A while ago I was in a car accident that almost cost me my life. At first I tried to close the case on my own, thinking I was going to get more money, but I wasn’t thinking. It was painful, very painful. The insurance company tried to deny my case by making excuses for everything. That’s when I decided to hire the attorneys at Diener Law. I was worried about my health. Diener Law was always there to fight for my case.

~H. Flores

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I am an elderly man who had an accident that injured my back. For a long time, I could not work and did not receive any benefits from my employer or his insurance company. I was under the impression that since I was undocumented, I could not file a claim against them. Diener Law was there with me at all times and showed me that no matter how difficult a case looks, they always find a way.

~Jose C.

I am very satisfied with the excellent services provided by Diener Law. They helped me a lot with my workers’ compensation case. I am currently an immigration client, and they are working very hard to get me the best result for me. I definitely recommend Diener Law for any case, especially immigration.

~Maria U.

At some point in my life, I did not care about taking care of my pending criminal charges, but I realized after having my own family that I had to be careful because I did not want it to affect my family. Diener Law helped me to clean my record and stay out of trouble.

~F. Ortiz

I am very thankful to Diener Law for everything they have done for me. My case wasn’t easy since day one because I entered the United States undocumented, and for immigration purposes that’s not good. For every step they were very informative and very patient. Since day once, I was worried because I wanted to stay here and get my status here. They were able to get my waiver approved, and I am currently on the path to obtain my residency.

~M. Hernandez

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I am very thankful to the attorneys of Diener Law. My son was in a bad situation due to someone falsely accusing him of a crime he did not commit. My son was only 16 years old when these charges came about, and they could have ruined the rest of his life. The attorneys and staff at Diener Law did not give up on me or my son and fought until the end, eventually getting all of his charges dismissed. Today my son is a hard-working young man, and he is so grateful that Diener Law was there to help him get though a very tough time in his life.

~O. Chavez

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Truth #1 You are not in good hands with insurance companies

Whether you’ve been hurt at work or by the negligence of someone else, you can’t trust the insurance company to look out for your interests. Their job is to save money while covering their insured. The insurance company will attempt to resolve your claim for as little as possible and will use tricks and lies to do it. Frankly, the insurance companies are world-class at paying as little as possible. They practice their hussle every day. Fairness isn’t their game; it is simply keeping as much of your money as possible. And unfortunately, they see immigrants as easy bait. TRUE STORY: I had an insurance adjuster tell me once at a meeting to resolve the case of 8 seriously injured immigrants that he should have just brought 8 new trucks to the meeting, and the injured immigrants would have taken the trucks and dropped their case. The insurance company’s scoreboard is dollar bill -- don’t play their game and do it by yourself.

Truth #2 It does not pay to be macho

After an accident, many immigrants bravely try to get back to work and on with their lives as soon as possible— as they should be. But if you are in pain, not getting medical treatment immediately will likely hurt you and your family. Not only do you deserve to get checked out and to follow your doctor’s instructions. But when people put off going to the doctor for days or weeks, thinking the pain will go away and later finally seek treatment, they find that the insurance company will refuse to pay for it, arguing that it wasn’t because of the accident. The key is getting timely, appropriate treatment after an accident. Also, after a work accident, you should give your employer prompt notice, including written notice within 30 days to preserve your right to any worker’s compensation benefits.

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Whether it is finding Spanish-speaking medical help or explaining the legal process in Spanish, we are here to help.

Truth #3 If you are undocumented you have rights but you must be willing to defend them

If you are undocumented, you still have rights to compensation when you are injured, but you have to be willing to stand up! You don’t have to do this alone. You can’t rely upon insurance companies or others who are responsible for your injuries to protect your interests. It seems scary for many immigrants because there are so many things unknown. Not knowing what will happen or what could happen forces many immigrants to not get the help they deserve. All you have to do is to ask for help. It isn’t necessary to understand part or all of the system. You just have to know a lawyer who does.

Truth #4 If you are in an accident and you don’t have a driver’s license, you can still get compensation

Many immigrants have walked into our offices with a ticket for driving without a license, while the person at fault for the accident was not given a ticket by the responding officer. Oftentimes, immigrants feel that this means they were in the wrong. The answer is whether you had a driver’s license or not at the time of the accident is not a problem. Insurance companies will act like they will use this against you and treat you like you are guilty, but don’t let them get away with it. Even if you do not have a driver’s license, you are still entitled to compensation if you’ve been injured and the other driver was at fault. There are often criminal traffic citations in such circumstances that need to be dealt with for our clients, but in many cases the fact that you do not have a license is not relevant

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in a personal injury claim. And for people who hire us, we generally resolve those traffic matters too because we have criminal attorneys as well. Our firm has been built to serve all the issues immigrants may have.

Truth #5 Insurance companies want you to handle your own claim and not hire a lawyer because they keep more of your money

Insurance companies will often contact you quickly after an accident and offer you money to settle your claim. This is rarely a good idea. If you have been injured, you probably will not even know the full extent of your injuries and are unlikely to know what compensation you may be entitled to. They may offer more money for your wrecked vehicle than it is worth so they can get you to take less than your personal injuries are worth. But remember, once the claim is settled you give up your ability to obtain any future or additional compensation. You may find out that you need a surgery or other expensive procedure as a result of the accident and have no way to pay for it. You may not even know what bills you have left from initial medical treatment. Fortunately, meeting with us is free for a personal injury case. We have people on the phones 24 hours a day and attorneys on call 24/7 as well for this reason. We don’t want anyone to fall prey to the insurance companies.

Truth #6 Insurance Companies and many attorneys base virtually all of their decisions on the strength of your case simply on what others write about you. Often the information they rely upon is wrong because of language difficulties or biases

Accident reports and medical records often have mistakes in them, even in the best of circumstances. This issue is

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compounded when there is a language barrier or when the maker of the record has a bias against you. Knowing how to deal with these mistakes and inaccuracies can make a huge difference in an injury case. WHY? What happens frequently is that since the officers generally don’t speak Spanish and many immigrant aren’t comfortable speaking English, the officer only talks with the other driver. Talk about having a disadvantage! We routinely have to go back to officers and get accident reports changed. Unfortunately, many attorneys and immigrants believe only what they read. That is why you must ask many questions and more importantly, why we have learned to LISTEN TO THE CLIENT! Just because someone works with their hands doesn’t mean they aren’t smart. I love representing immigrants because they generally are so honest and helpful. These are the people who deserve help the most!

Truth #7 If you are an immigrant and are hurt at work, your immigration status doesn’t affect your ability to get medical or financial help

The same workers’ compensation laws that protect every North Carolina worker protect you. Your immigration status does not bar you from receiving medical treatment and disability payments if you get hurt at work. You will hear all types of horror stories about how badly bosses have mistreated undocumented immigrants. They will try to convince you that if you are not legal then the law doesn’t apply to you. They can’t handle the truth because they don’t want to.

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Truth #8 If you are working under another person’s name and are hurt at work, you are still entitled to worker’s compensation benefits

I get really sad when I think about all the people who have been seriously injured at work and because they worked under another name, didn’t seek help because they thought they would get in trouble if they did. Working under another person’s name is not a bar to obtaining workers compensation benefits, but it is important to consult an attorney who has handled that issue before and knows how to deal with it. There will be criminal questions, immigration questions, and worker’s compensation questions that will come up. We have been down this path hundreds of times and are very confident on how to lead our clients to safety while getting them the financial help they deserve. Our firm is very unique in that we can handle all of these issues. And I want you to know that the reason we started is because our clients needed it. When representing clients gets personal, you find a way to take care of your friend.

Truth #9 Worker’s compensation insurance companies will often try to seem like they are doing everything to get you back to work hoping you don’t find out about everything you are entitled to

It is common, where an injury by accident clearly occurs at work, for the insurance company to accept responsibility and start paying for your medical treatment right away. This is a good thing. But it doesn’t mean you can rest easy. Insurance companies must authorize all of your treatment. They can pick what doctor to send you to. And if your medical treatment is expensive, which it always is, they’ll be looking for ways to make it cheaper and take shortcuts. A doctor may tell you surgery isn’t necessary, when it might be. If they can’t find a ready

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explanation for your ongoing pain, they may accuse you of “faking it” and send you back to work at a difficult job before you have healed. And they will try to get you to sign off on your future rights for medical treatment or financial compensation without thinking twice or if it is fair. The insurance company is not looking out for your best interests or fighting for your future – their job is to make money, not protect you.

Truth #10 If an employer threatens to call ICE if you file a worker’s compensation claim, you can sue the employer and win (we have)

This threat is a common scare tactic to keep people from filing a worker’s compensation claim. It is usually an empty threat because Immigration officials do not have the time or resources to follow up on such individual reports, and it would expose to arrest the very employer that hired you to begin with. But the threat is also an illegal one. Retaliating against a worker for seeking compensation for an injury is illegal in North Carolina and could give you an additional claim for compensation. TRUE STORY – we sued a grocery store owner for this very conduct and won a judgement against them for over $30,000.00! We don’t take kindly to people exploiting immigrants and are willing to hold them accountable.

Truth #11 It has been proven in NC you are more than 90% more likely to have your vehicle searched if you are Hispanic compared to if you are white

People will argue there are variety of reasons why Hispanics are more likely to have their vehicle searched. The language barrier between the officer and the driver of the vehicle is the main reason why these searches occur. Drivers

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often cannot understand the officers’ questions when the officer is asking for permission to search the vehicle. The driver mistakenly shakes his head yes or gives a quick answer not knowing that the officer is asking for permission to search the vehicle. BUT, in my opinion, it comes down to two main reasons. Most immigrants do not know you are not required to allow the officer to search the vehicle. After all, in their home country, the police are the law. However, the second reason why Hispanic driver are searched more than others is because of the ignorance of law enforcement. Many officers stereotype immigrants as unsophisticated, unintelligent, drug traffickers, thieves, and as not worthy to be here in the United States. Absent you giving an officer a consent to search, generally the officer must have knowledge that a crime has been committed and that evidence of that crime is in the car in order to search a vehicle during a traffic stop. The best thing to do is to tell the officer your lawyer said to call him first before you let any officer search your vehicle. Explain this politely and ask their permission to call. My guess is the officer will not look at you the same way afterwards.

Truth #12 When police stop you, they can lie to you but you can be charged with a crime if you lie to them

Police officers oftentimes use traffic stops as a way to investigate potential criminal activity. Police officers are allowed to lie to the driver and occupants of the vehicle in an effort to get the driver to confess to committing a crime. For example, a police officer may lie to a driver by stating that the officer witnessed the driver cross the center line or run a red light. This is done with the intent to get the driver to admit to drinking earlier in the night. Such an admission would lead to a potential Driving While Impaired charge. Sometimes the lies

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which the officers use are meant to secure consent to search the vehicle and try to find evidence of a crime.

Now keep in mind, if you lie to officers during a traffic stop, you may be charged with a crime. Under North Carolina law, you are required to give the officer your correct name and identifying information. If you give a fake name, the officer may charge you with Providing Fictitious Information to an Officer. Additionally, you may be charged with obstructing a police officer if you refuse to provide either your identifying information or answers to questions the officer asks. Unfortunately, there isn’t much we can do but warn the community.

Truth #13 If the police are asking you questions, it is because they are trying to build a case against someone, and it is probably you

Police officers are responsible for investigating potential crimes and uncovering who might be responsible. Once they think they have figured it out, they will gear all of their investigation to support that belief. Once they feel they have enough “evidence,” they turn this information over to the prosecutor’s office. The prosecutor is then responsible for convicting the individual in court. Prosecutors are supposed to simply seek the truth. However, with their case volumes, it is very common to simply take what ever information the officer gave them and treat it as gospel. If the police come to you asking questions about a crime, they are looking to strengthen the state’s case at trial. They have approached you because they either believe you witnessed a crime or that you were the person who committed the crime. It is important that you understand what you are obligated to say to police officers. Under the United States Constitution, you are under no obligation to answer questions to a police officer in this

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situation. When approached by the police, you should always ask them if you are free to leave and not answer any questions. If the police tell you that you are not free to leave, you should inform them that you will not answer questions without your attorney present. Once you make this statement, the police are not allowed to question you without your attorney present. This is when you call Diener Law.

Truth #14 If you are a victim of a violent crime and are undocumented you may be eligible to apply for legal status

A person should never be afraid of filing a police report or assisting with the prosecution of a case. Did you know that if you are the victim of a serious crime, you may be eligible to apply for a U Visa? Congress created the U Visa in 2000 with the hope of strengthening the ability of law enforcement agencies to investigate and prosecute serious crimes, while also protecting victims. It is available to victims of certain crimes who have suffered mental or physical abuse and who have assisted law enforcement or government officials in investigating or prosecuting cases, such as human trafficking, sexual assault and domestic violence, among others. It does not matter what status you currently have or the country that you are originally from. Even individuals who are currently in removal proceedings may be able to apply for a U Visa and thereby fight their deportation. There are many benefits associated with a U Visa, including four years of lawful presence in the United States and permission to work and drive lawfully. Most importantly, it is a pathway to residency and later citizenship. These benefits may also be available to members of the victim’s family as well. The important thing to remember is to report any and all crimes committed against you to law enforcement and always cooperate in the investigation.

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Truth #15 What may be a good result for an American citizen in a criminal case may not be a good result for an immigrant

American citizens do not risk losing their immigration status as a result of a criminal conviction. While they may lose certain privileges or rights following a conviction, they will still be able to live in the country legally. The same cannot be said for immigrants. Immigrants with lawful permanent status in the United States can potentially put that residency in jeopardy by pleading to certain crimes. Immigrants without legal status in the United States must be extra cautious when dealing with criminal charges. Certain convictions may carry the potential for time in jail. Depending on the type of charge, a small amount of jail time may be a great result for someone with citizenship. However, an undocumented immigrant runs the risk of being picked up for deportation if they are held in jail. Additionally, undocumented immigrants must try to keep their records as clean as possible in case they were to become eligible for future immigration relief. Any type of visa which an undocumented immigrant applies for will have requirements and restrictions based upon the person’s prior criminal record.

A plea with minimal active time or a particular reduced charge may be a great result for a citizen. However, immigrants must consult an attorney who practices criminal and immigration law to understand the consequences of a criminal convictions on their ability to stay in the United States.

Truth #16 If any lawyer guarantees you a criminal result, run

Results in criminal cases depend on numerous factors. There are the facts of the case, the investigating officer, the assigned District Attorney, and the Judge in the case. Different Judges handle certain cases differently and there is no way to

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determine which Judge a defendant will get in their case. Likewise, different District Attorneys have varying policies about the types of plea offers they will agree to. Sometimes a case is assigned to a District Attorney who will provide a great plea offer, and other times the District Attorney may be strict. Any lawyer who guarantees a certain result in a criminal case is only trying to get your money. The best attorneys lay out all the possible resolutions and clearly explain what the best and worst outcomes would be. Then they provide an opinion on what they think they can get for the client. Unlike many countries, in the United States, we cannot pay for a specific result in a criminal case (unless you want the worst possible result).

Truth #17 Taking care of a criminal charge doesn’t mean that charge is wiped off your record

Handling a criminal charge in court does not mean that it is wiped off your criminal record. This is another difference between the United States and many foreign countries. Depending on the result of the case, a charge will still be on your record. A conviction on your record will show what the result of the case was. What you are charged with and what you are convicted of are two separate things. You can be charged with speeding and it can be reduced in court to a non-moving violation. What will show up on your record is that you were charged with speeding but the conviction would be a nonmoving violation. EXCEPTION: a very small number of offenses can come off your record after a period of time if you do everything that law requires and if a charge is completely dismissed in court, then there is a way that the charge can be expunged from your record. So always remember, just because you paid your lawyer and the case was handled, it does not mean that it is wiped off your record (as it does in some other countries).

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Truth #18 Just because someone says they will drop the charges against you, doesn’t mean the prosecutor will

If you are charged with a criminal charge and there is an alleged victim who decides to not pursue the charges, that does not mean that the prosecutor will drop the charges. If there is enough evidence for you to be found guilty in a case, then a prosecutor can move forward with the case to get a conviction. So, it is very important to know that just because a person says they will drop the charges that does not mean that the prosecutor cannot move forward with case. The prosecutor’s job is to get a conviction. So they will try to move forward on cases when they can, and this is why it is very important to hire an attorney to make sure you can get the best result.

Truth #19 A hunting permit doesn’t give you the right to have a firearm if you are an immigrant; it is a felony under federal law

It is illegal for an undocumented immigrant, including persons with DACA, TPS or other types of non-immigrant visas, to possess a firearm. If a federal agent finds out that you possess a firearm, you will be charged federally and could face up to 10 years in a federal prison, after which you would be placed in removal proceedings. Citizens and permanent residents are eligible to own and possess firearms, but it is dangerous if they live with people who are not eligible. It is very, very dangerous for immigrants because the consequences are so severe.

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Truth #20 If you have had a driver’s license in North Carolina under another name and later get one under your real name, you can count on the government finding out

With the technology that the DMV possesses today, if you have ever obtained a license with an alias and either get one in your real name, or have done so in the past, you can count on DMV finding out. The computer programs that DMV uses compare pictures from the photographs and matches these pictures by taking measurements of your face. Also, DMV has a taskforce (a joint program where the two work together) with ICE, so that they find and eventually charge said person with fraud. ICE officers may come to the person’s home, or a DMV officer may call you to their office to talk. If ICE is involved, it typically leads to federal charges. If ICE isn’t involved in the arrest, these charges can range from misdemeanors to felonies. DMV runs these searches year round, so even if you obtained these ID’s or driver’s licenses several years ago, they will still find out and try to locate the person. SOMETHING CAN BE DONE: depending on the case and after a free consultation, we have seen numerous people never charged with a crime and able to move on with their lives. There are no guarantees, but we can investigate a case before putting a client in a dangerous position and see if they are eligible to resolve their matter in a far better way. After doing many, many of these cases, we have numerous life-long clients who are thankful that we were able to help them.

Truth #21 Using a false name in the past doesn’t protect you from future punishment if they took fingerprints

There are a million John Smith’s in the world, as well as Jose Hernandez’s. For that reason, fingerprints are the most effective way the government uses to associate criminal arrests

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with a name. If you were ever charged criminally, arrested, and fingerprinted, then that record will likely exist in the FBI fingerprint database. False names don’t protect someone because fingerprints are unique. Sometimes people who used a false name and were charged with a crime decide to disregard the charge because it is not in their real name. But it is important to know if they get fingerprinted again for immigration or another charge, the odds are very strong the old charges will find them. One way to find out if this is an issue is to get an FBI background check done by having your prints taken and submitted for results. This can be done by an Attorney (never a notario), and the results will be sent to the Attorney. No address for the person has to be given, and the results will be confidential.

Truth #22 Just paying off tickets is usually more expensive than getting the help of a lawyer

When a person is cited with traffic infractions, it seems like the easiest and least stressful thing to do is just pay them off. Many immigrants don’t know that every time a person does this, they are pleading guilty to the charge, thereby adding points to a person’s driving record. This means paying more for car insurance. This also means a certain accumulation of points with the DMV can revoke/suspend a person’s driving privilege. Paying off two tickets in one year alone can do that!

Truth #23 If you are working or worked under someone else’s name in the past, law enforcement generally come looking when someone files a report because money is owed

In recent years, there has been a lot of press about identity theft. The type of identity theft that most people are familiar

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with is when someone uses another person’s name and social security number to make purchases without any intent to pay for those purchases. But there is another type that is less known and is simply motivated by the need to work. Many of the eleven million undocumented immigrants in this country have at one time or another used someone else’s identification for this second purpose. This “truth” is not intended to discuss this problem as a whole, but it is written instead to help those people who, out of necessity, may have done what they believed they had to do for them and their families to survive.

First, whether the rest of us want to admit it or not, in one way or another, we are all criminals. Someone may be reading this article with contempt for the undocumented individual who freely chose to use another person’s identity. I remind you that each of us has certainly done one or more of the following: speeding, texting while driving, not paying a parking meter, betting on the game, sharing a prescription medication, taking a pen from the office, eating a grape at the grocery store before paying for your groceries, and/or not reporting every dollar you earn on your taxes. I am not condoning any of these violations, but merely reminding all of us that we should not judge. Now that we have that out of the way, we can move on to the task of educating people on how to reduce their exposure for acts they may have already committed in the area of identity theft. Again, I am not condoning or recommending any form of identity theft, merely offering assistance to those who may find themselves in this situation.

Comprehensive immigration reform, God willing, is coming. Many of the same people who plan on applying for this potential form of immigration relief will have at some point bent our identity theft laws in order for them and their families to survive. Working under someone else’s name is one thing. Using another’s social security number is another. And in North Carolina, if you are caught for these actions, you can be charged

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with a felony, which is a particularly serious crime, both under state criminal and federal immigration law. And unlike the case with misdemeanors which have to be prosecuted within a certain period of time, for felonies, whether you committed the act yesterday or ten years ago, the State of North Carolina can still prosecute you. However, in order to convict an individual under North Carolina’s identity theft statute, the prosecutor must prove several things beyond a reasonable doubt. The elements (or list of what a prosecutor must prove for the law to apply) of identity theft under North Carolina law are that the person:

1) knowingly, and;

2) (a) obtains, (b) possesses, or (c) uses, and;

3) identifying information of another person, living or dead, and;

4) with the intent to fraudulently represent the person is the other person, and;

5) for the purpose of (a) making financial or credit transactions in the other person’s name, (b) avoiding legal consequences, or (c) obtaining anything of value, benefit, or advantage.

Although, after reading the elements of North Carolina’s identity theft statute, most people would believe that the intent is to punish those who use another’s identification to get something that doesn’t belong to them, this statute is also routinely used to prosecute undocumented individuals whose only desire in their conduct is to feed their family. Part 5(c) is the primary statutory language that is interpreted broadly to cover this category of unfortunate people. Logic would suggest that people who work under another’s name actually earn the money they are paid, but under the law, things are seldom simple, and are often unjust. After all, it was once unlawful for

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people of different races to marry, attend school together, or even use the same restrooms. Those laws were enforceable by the criminal powers of the government, but were never just, and it took decades of the efforts of thousands of concerned individuals to change people’s minds before these unjust laws were eliminated. Identify-theft statutes present a similar, though not as clear, injustice.

After handling a number of these cases, we have learned how they develop and how sometimes you can (1) steer these charges away from felony convictions and (2) possibly avoid being charged at all. First, there is a big difference in your situation if your past actions were done with the knowledge that the identification at issue actually belonged to a real person or whether it was a fictitious identification altogether. For those who are fortunate enough not to have had to engage in this trade in their past, let me share with you that there is a large underground industry of people who sell ID’s. There are no guarantees that come with fake social security cards, and a purchaser of one is generally only interested if it’s “good,” meaning, they will be able to work with it. Sometimes these social security cards are associated with real identities, and at other times they are not. Under the North Carolina identity-theft statute, the State must prove that the accused in fact knew the identification was from someone who has existed or who does exist (further supported by the United States Supreme Court case Flores-Figueroa v. United States). An important key for this element is that you should not answer any questions if you are suspected of doing something wrong related to identity theft. Kindly advise the person who is asking you questions that you would like to help, but that you must speak with a lawyer first. Sometimes employers ask these questions, and you do not have an automatic right to speak with a lawyer when being questioned by them. Nevertheless, I still recommend not answering their questions and asking for a lawyer. The reason is, if you admit to your employer or anyone else that you knew

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the ID belonged to someone, they may communicate that to law enforcement, and that is enough in North Carolina to convict you of a felony. Be safe, not sorry.

One of the main arguments I make to prosecutors is that this is often a victimless crime. Now, this is not the case if someone is using another’s actual information and the IRS is involved. When filling out tax withholding documents, the person using someone else’s ID may list too many exemptions, causing not enough tax to be withheld. Oftentimes, the IRS first comes knocking on the real person’s door asking for money to cover the unpaid taxes, and later the unsuspecting worker who used the real person’s ID finds himself or herself in a web they cannot escape. The tax information the IRS receives has the unsuspecting worker’s employment address. Local law enforcement are notified, and one day on the job site, law enforcement shows up asking questions that cannot be answered without proving the prosecution’s case for them.

My point in explaining how these situations develop is not to encourage someone to commit identity theft, but rather to advise those in such situations of ways to avoid causing more damage to themselves and to others. If you are in the middle of a similar situation, you should try to stop using the other ID, and never, and I mean never, leave someone else paying for your use of that identity. This is a difficult situation for many people. Money isn’t plentiful, and the thought of possibly escaping from a debt because it is in another person’s name is tempting. But the reality of these situations is that typically, law enforcement comes looking when money is owed and the actual person did not incur the debt. Otherwise, if no money is owed, law enforcement usually spends their time on more serious offenses.

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Truth #24 You are on the hook for anything a notario puts on an immigration petition

DON’T be the victim of a fraud. In most Latin American countries, “notarios” are considered attorneys and sometimes have the authority to give you legal advice and guide you in a legal matter. Here in the United States, a “notario” is simply a person who is authorized to authenticate someone’s signature or to give someone an oath. That is it! They are not qualified to assist anyone on their immigration matter. Unlike an attorney, they can’t or won’t sign their name on immigration forms. This is important because if something is wrong on the forms, immigration will assume you did this yourself and will assume you did it on purpose. It is very common for us to hear about individuals who have lost thousands of dollars because they hired a notario to help with their case. Many notarios will still file a petition even if a person doesn’t have a way to get approved. The consequences could be catastrophic!

Truth #25 Immigration rules and policies are changing rapidly, so don’t rely on what your cousin’s wife’s lawyer said

EVERY case is different. Immigration law is complex. Details are extremely important in determining whether an individual is eligible for an immigration benefit and whether, even if they are eligible, they should apply for that benefit. As a result, it’s important to remember that no matter how similar your case may appear to the case of someone else you know, there are likely important differences that could vastly change the outcome. Furthermore, immigration law, with its rules and policies, is constantly changing day by day, so it is unwise to compare a current case with the results that were obtained for a different client three, two or even a year ago.

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Truth #26 Just because you may have lived here for over 10 years it doesn’t mean you can become legal

Just because you have lived in the United States for over 10 years doesn’t mean you can apply for legal status. This so-called “10-year immigration law” does NOT exist. Instead, when people talk about getting status after being in the United States for ten years, they are likely referring to cancellation of removal. Cancellation of removal is only available to individuals who are currently in removal proceedings and who have lived in the United States for at least ten years. In addition to the residency requirement, these individuals must also show that they are a person of good moral character and that their removal would result in exceptional and extremely unusual hardship to their spouse, parent, or child who is a United States citizen or legal permanent resident. Exceptional and extremely unusual hardship is a high standard to meet; financial concerns and worries about missing family members unfortunately aren’t enough. Therefore, since cancellation of removal can only be granted by an immigration judge, it is only a good option for individuals who are already in removal proceedings.

Truth #27 As many as 1 out of 4 people who apply for DAPA or DACA are eligible for legal status

“DACA” (Deferred Action for Childhood Arrivals) is an immigration policy which allows eligible, undocumented immigrants to legally work in the United States and makes them a much lower priority for deportation. It is not a legal status, and it is temporary. Recipients must apply to renew their status every few years and hope that future presidential administrations continue the policy. Fortunately, as many as 1 out of 4 individuals who apply for DACA are eligible to obtain legal status through other methods. Spouses, children, parents,

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and siblings of United States citizens, for instance, may be eligible to become legal permanent residents. The same is true for spouses and children of legal permanent residents. Victims of certain crimes may be eligible for a U Visa, which is a pathway to residency and later citizenship, as is Special Immigrant Juvenile status, which is for minors who have been abandoned, abused, or neglected by one or both parents. Therefore, it is important to consult with an experienced attorney to determine your eligibility for legal status in the United States.

Truth #28 You don’t need permission from your spouse to get divorced, even if you were married in another country

If you have lived in North Carolina for six months and have been separated from your spouse for a year, you have a right to file a divorce case and to get a divorce in North Carolina, even if your spouse does not want a divorce, and even if you were married in another country. Although you don’t need their permission, you do need to give them legal notice. This is the tricky part, but we have found ways to make it happen with spouses literally all around the world. Once the divorce papers are filed with the court, the papers must be served on the spouse in one of a few ways allowed by law. The most common way is to have the papers served by a deputy sheriff or by sending the papers by certified mail, return receipt requested. Alternatively, it is acceptable to use certain FedEx and UPS services to send the papers. If the papers cannot be served by one of the ways listed, or if we do not know where your spouse lives, in some circumstances, we can put a legal notice in a newspaper for three weeks in a row, and that will satisfy the service requirement. If your spouse lives in another country and we have an exact address for your spouse, we will most likely have to complete an expensive type of service based on international treaties. If your spouse lives in another country and you do not

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know the address, we can usually serve by publication and move forward with the divorce.

Truth #29 Every parent that is an undocumented immigrant is entitled to go to court and seek custody of their children

Immigrants have a constitutional right to access the courts to seek custody of their children. In 1982 the United States Supreme Court set the record straight that regardless of immigration status, immigrants have these rights under the supreme law of the land. However, North Carolina courts do require that the child and at least one parent reside in North Carolina (or did in the last six months). The truth is that immigration status has very little relevance in custody proceedings. The court is required to consider all the facts and circumstances of the case and decide which custody arrangement is in the best interest of the minor child or children.

Truth #30 You have a constitutional right in the United States to get married regardless of whether or not you have legal status

The courts have generally held that individuals possess a fundamental right to marry under the United States Constitution. This basic but important idea became a little more complicated for undocumented immigrants when Congress passed a law requiring a social security number be provided to obtain a marriage license, so that it would be easier to enforce court orders for child support and spousal support. This requirement created a problem with the recognized fundamental right to marry because undocumented immigrants are not generally able to obtain a social security number under current law. The North Carolina Attorney General issued an

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opinion about the conflict, and he stated that it would “make a mockery of the law” to “deny an alien a marriage license because he cannot provide a social security number which he may not legally obtain.” In North Carolina, marriage licenses are issued by the Registers of Deeds of each county. Most Registers of Deeds now have a sworn statement for an applicant for a marriage license to complete which states that he or she cannot legally obtain a social security number, and the submission of this form excuses the applicant from providing a social security number on the marriage license application.

The bigger issue now in North Carolina is obtaining a marriage license with some sort of government-issued identification. Usually, an identification card from another country, such as a passport, matricular card, or a cedulla, is sufficient. But there are always a few “civil servants” that will try to discriminate. The good thing is you can go to any Register of Deeds to get a marriage license.

Truth #31 It is legal to own land and a home in your name in North Carolina without a social security number but that is not the case with a car or a mobile home

Clients often ask us whether they have to have legal status or a driver’s license to own vehicles, mobile homes, or land in North Carolina. The breakdown appears below:

Vehicles: vehicles such as cars and trucks have a Certificate of Title. To own a vehicle in North Carolina and for a person’s name to be placed on the Title, you have to have a driver’s license. We found many immigrants being taken advantage of by people offering to have the vehicles in their name. Some times these people start off with the intent to help but later decide to defraud the rightful owner. Others are just opportunists. Determined to find a way, we came up with a

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solution. Since many of our clients do not have driver’s licenses but need to own cars, we have drafted a fill-in-the-blank Trust Agreement for Vehicles and Mobile Homes which provides that a person with a driver’s license will have the vehicle put in his name and hold the vehicle “in trust” for the other person, who does not have a license. This agreement does create a legaly enforceable contract with rights for the person without a license (who is making all the payments on or who paid for the vehicle). If you need this form or would like to give it to someone, we can provide it to you free of charge.

Land: to own land, including a house on the land, in North Carolina, there is no requirement that you have legal status or that you have a driver’s license. A document called a Deed is used to transfer ownership of land. This document is only signed by the person or persons transferring the land and is filed with the Register of Deeds in the county where the land is located.

Mobile Homes/Trailers: in North Carolina the vast majority of mobile homes have a Certificate of Title, and to own the mobile home/trailer and put one’s name on the Title, you have to have a driver’s license. Very few mobile homes have been legally “affixed” to land through the filing of certain documents with the Register of Deeds of the county where the land is located. If a mobile home is affixed, it becomes part of the land like a house, which means that there is no longer a Title. When the land is transferred by a Deed, the affixed mobile home is transferred with it, and you don’t have to have a driver’s license to own a mobile home that is affixed to land.

Lost Titles to Mobile Homes: we frequently have situations where the Title to a mobile home is lost, but there is no evidence that the mobile home was ever affixed to the land, like a house. In these cases, it is sometimes possible to locate the Vehicle Identification Number (“VIN”) somewhere on the mobile home. With that VIN, you can find out from the North Carolina

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Department of Motor Vehicles who owns the mobile home, and it is sometimes possible to request a new Title for the mobile home. But in many cases where there is no Title and the VIN cannot be located, a client can do a “Bill of Sale” stating that they are selling a mobile home to someone else, but there is always a risk that the person who is actually listed in the DMV records as the Title owner could come and claim the mobile home, although that almost never happens.

Selling/Buying a Mobile Home AND Land: to transfer the land, a Deed is required. For the mobile home, there is most likely a Certificate of Title for it. Therefore, to transfer ownership of the land and mobile home, you would usually need a Deed to transfer the land (where buyer does not need a driver’s license) and a Certificate of Title (where buyer does need a driver’s license, but buyer could use the Trust Agreement for Vehicles and Mobile Homes and put the mobile home in another person’s name “in trust” for himself). If the mobile home has been affixed to the land, only a Deed is required to transfer the land AND the affixed mobile home.

Truth #32 Many immigrant employers frequently count on their employees not knowing federal and state wage and hour laws but the government will investigate anonymously for free

Employers in North Carolina who employ undocumented immigrants often take advantage of the fact that these employees will most likely not know federal and state wage and hour laws. Whether undocumented immigrants know it or not, they have definite rights under the law. For example, the minimum hourly wage in North Carolina is $7.25, although different laws apply to tip-earners like waiters and waitresses. Some employers pay undocumented immigrants less than this minimum wage, in violation of the law. Also, for all hours over

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forty worked in a week, employees are generally entitled to be paid “time and a half,” which mean one and a half times their hourly wage. If undocumented immigrants as employees are being paid hourly, they are also entitled under the law to be paid on their regularly scheduled payday. In the United States, Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment, and the law requires the employers to complete this form. Employers will sometimes hire undocumented immigrants and employ them for a period of time, then refuse to pay them, sometimes after a significant amount of work, if the employee cannot produce a social security card. The courts consider this an example of “unclean hands” and not a sufficient reason not to pay the employee, as it was the employer’s failure to complete the I-9 Form, not the employee’s.

When employers do things that violate wage and hour laws, employees have definite rights. One option is to call the North Carolina Department of Labor and make a “wage and hour” complaint. Information from the North Carolina Department of Labor’s website about filing a wage and hour complaint includes the following:

In order for the North Carolina Department of Labor’s Wage and Hour Bureau to be able to assist an employee with a wage problem, a complaint must be filed with the Wage and Hour Bureau. To file a wage complaint, call their Call-Center at (919) 807-2796 (Raleigh) or toll-free (NC only) 1-800-NC-LABOR (1-800-625-2267). An Information Specialist will take the complaint information over the telephone and enter it into their computer data intake system. You will need to have the name of the business and the name and title of the official the Department of Labor will need to contact, including this official’s email and postal mailing address and telephone number; the Wage and Hour

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Bureau will also need your email address if you have one. They cannot take anonymous wage payment complaints, but you may request that your name not be used in the investigation if the wage problem is happening to other employees. If the wage problem pertains only to you, then they must use your name in the investigation. Their Call-Center is open from 8 am to 5 pm, Monday thru Friday.

An employee may also take legal action on their own, including small claims court if applicable, without first having to file a wage complaint with the Wage and Hour Bureau. But an employee cannot come back to the Wage and Hour Bureau to file a wage claim if they take their own legal action in court regardless of the outcome. However, if an employee files a wage complaint with the Wage and Hour Bureau, and they cannot resolve their complaint, then they are still free to take legal action on their own.

NOTE: The Wage and Hour Bureau does not take wage payment complaints of $50 or less. And if your wage complaint deals with your last paycheck, you must wait 10 days after the payday in order to file a wage complaint with the Wage and Hour Bureau.

Truth #33 Immigrants are often targeted by people to sell land to in lease to own arrangements and most of these buyers have rights to protect their investment that even the sellers are not aware of

Under North Carolina law, there are a number of protections for buyers in lease-to-purchase contracts. For immigrants this is great news because after reading the information below, you will likely know more than the person who tries to scam immigrants. Many buyers, including

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undocumented immigrants, are unaware of these protections, and sellers frequently take advantage of these buyers. For example, the option to purchase contract is now required to be in writing and given to buyer. Further, the option contract must be recorded by the seller at the register of deeds within five business days after signing by both parties. In the alternative, the seller can record a “Memorandum of Option Contract,” which must contain the names of the parties, the signature of the parties, a description of the property, the time during which the option must be exercised, and a statement that the buyer has the right to cure a default once every twelve months. In addition, the option to purchase contract itself must contain:

• Full names and address of all parties to the contract;

• The date the contract was signed by each party;

• A legal description of the property to be conveyed subject to the option;

• The sales price of the property;

• All fees or payments paid by each of the parties including the option fee;

• All duties whose breach will result in forfeiture of the option;

• The time period during which the option may be exercised;

• A statement of the rights of the buyer, including the right to cure a default once during each 12 month period; and

• A statement in at least 14-point boldface directly above the buyer’s signature, that the buyer has the right to cancel the option any time prior to midnight of the third business day following the signing of the option.

In the case of default, as stated above, the buyer has the right to “cure” once every 12-month period. The seller must be

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given at least 30 days from receipt of the notice before he is evicted or loses the option. Additionally, the seller must provide a written notice of default that advises the buyer of:

• The nature of the default, including the amount if the default is a failure to pay;

• The date by which the buyer must cure the default or the option will be forfeit; and

• The name and address of the seller or the attorney for the seller.

The notice of default must be served by hand, sheriff, or certified mail or equivalent.

If the buyer does not remedy the default, the seller must obtain and record a mutual termination executed by both the buyer and the seller, or obtain a judgment by a judge of competent jurisdiction that terminates the option and extinguishes the buyer’s right of redemption. The judgment must be recorded at the Register of Deeds as well. After the default notice has been served, and if it not cured within 30 days if it is the buyer’s first default of the year, the seller may move forward to cancel the option and the buyer’s equitable right of redemption by either:

• Filing an agreement terminating the option, signed by all parties, at the Register of Deeds; or

• Obtaining a court order terminating the buyer’s option, and filing the order with the Register of Deeds.

If the seller defaults on a loan secured by the property during the option period, the buyer may cancel and rescind the option contract. The seller will have to return all monies paid by the buyer under the option, less the fair-market rental value of the property while it was occupied by the buyer and compensation for any damage to the property by the buyer that

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is beyond normal wear and tear. A violation of this act is an unfair and deceptive trade practice subjecting the seller to treble damages and attorney’s fees, as well as equitable and declaratory relief.

Truth #34 Not everyone is eligible for an immigration bond hearing, especially if you already had one (before you were ready)

Technically there is not a right to an immigration bond - one has to request one first. However, an ICE agent may offer someone detained to have a bond hearing immediately. It is common for someone detained to take this opportunity to go before a judge without any preparation hoping that the faster he or she has their bond hearing, the faster they will be out of detention. The sad truth is it doesn’t always work out that way. Normally, when an immigrant gets arrested and transferred to a detention facility, they do not have all the necessary paperwork for the judge to consider when deciding a bond. This is a reason why in many cases a bond is refused or is so high that the families cannot afford the bond. It is crushing when the person detained is stuck in the detention center without a bond. It is all too frequent that someone is stuck because they didn’t talk with attorney before a bond hearing. BY LAW, YOU ONLY HAVE ONE CHANCE TO REQUEST A BOND HEARING!

Truth #35 Just because you pay a criminal bond, it doesn’t mean you will be released.

When a person is charged with a crime and arrested, they are taken in front of a local magistrate. That magistrate sets a bond in the case based on several established factors. These factors include ties to the community, prior criminal record, and the facts of the case (just to name a few). If the magistrate

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orders a “secured” bond, then the defendant must either pay the amount of the bond in cash or hire a bondsman to put up the money for the defendant. If the defendant puts up the money himself, it will be returned when the charges are disposed of. For American citizens, once the bond is posted, they are released from custody.

In the cases of undocumented persons, there is oftentimes an “ICE hold” placed on the person arrested. This means that the federal government has been notified that a person with undocumented status has been taken into custody. Under federal law, the federal government has 48 hours from the time that person is eligible for release to take the person into federal custody. This means that even if the defendant pays the criminal bond, the local jail can hold the defendant for another 48 hours. If the criminal bond is posted and the person is picked up by the federal government, the money posted for the criminal bond may be lost. It is always best to consult an attorney before posting any type of criminal bond to make sure that the person will be released but also so that the money is not lost.

Truth #36 Receiving public benefits may or may not affect your ability to gain legal residency

A lot of my clients who come in for consultations are concerned about obtaining public benefits. Many of them asked for those benefits on behalf of their children who are United States citizens; some of them asked for benefits for delivering a baby, and some for food stamps, etc. The immigration service can punish immigrants who by requesting public benefits might become a “public charge.” However, receiving public benefits does not automatically make an individual a public charge. The term “public charge” has been part of immigration law for over 100 years as a ground for admissibility or even deportation. A person who is likely to become a public charge is inadmissible to

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the United States and is ineligible to become a permanent resident.

A “public charge” is defined as someone who is likely to become primarily dependent on the government for subsistence in terms of income for maintenance or long term-care at the government’s expense. In determining whether someone meets the definition, a number of factors are considered, including age, health, family status, assets, education, and skills. No single factor, other than the lack of an affidavit of support if required, will determine whether an individual is a public charge.

The following benefits ARE NOT considered a “public charge.” Under agency guidance, non-cash benefits and special purpose cash benefits that are not intended for income maintenance:

• Medicaid and other health insurance

• Food Stamps, WIC, national school lunch program and other emergency or supplemental food assistance programs

• Housing benefits

• Child-care services

• Energy assistance, such as the Low-Income Home Energy Assistance Program (LIHEAP)

• Emergency disaster relief

• Foster care and adoption services

• Educational assistance including head start

• Job training programs

• Community-based programs like shelters, crisis centers, counseling, and intervention services

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• Non-cash benefits under TANF such as subsidized child-care or transit subsidies

• Cash payments that have been earned such as Title II Social Security benefits, government pensions, and veterans’ benefits

• Unemployment compensation

PLEASE NOTE THAT LAWFUL PERMANENT RESIDENTS WHO CURRENTLY POSSESS A “GREEN CARD” CANNOT BE DENIED U.S. CITIZENSHIP FOR LAWFULLY RECEIVING ANY PUBLIC BENEFITS FOR WHICH THEY ARE ELIGIBLE.

Truth #37 Preparing your own immigration petition may be the biggest mistake of your life

If you ask a bunch of attorneys whether it is okay to file without an attorney, I would venture that 100% will advise you that the answer is no, and that you should use an attorney. In all seriousness, the preparation, filing and follow-up required in many different petition processes can seem deceptively un-complicated; however, you should retain an experienced immigration attorney if you want it done correctly. Otherwise, you are risking your future and potentially the futures of your family members as well. Given everything you have gone through to get to this point, gambling is not wise. And not all errors can be reversed. Every week we have people call our offices who are seeking us to “fix” what they or a notario have done, and often we just can’t.

Truth #38 If you have re-entered the United States after being deported for a felony, you are likely a priority target of ICE

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ICE has limited time and money to arrest and deport undocumented immigrants. However, if you were convicted of a felony and deported, and later reentered, ICE will spend that limited time and money on picking you up. What is getting increasingly common is that the United States Attorney (the prosecutor for the federal government) is charging and easily convicting individuals for these very type of cases. Fingerprints taken after arrests when someone returns is generally how they find you, but it can be as simple as someone turning you in to ICE. In these situations, you are not eligible for a bond, and you will be at the complete mercy of the federal government and its slow-moving process.

Truth #39 ICE may not even want to deport you or a loved one (prosecutorial discretion)

“Prosecutorial discretion” is the authority to decide what charges to bring and how to pursue each case. Prosecutorial discretion can be exercised on either an agency-wide basis or by an individual officer or employee. Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in immigration matters include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place. While too lengthy to list here, the factors to determine whether the government can or will exercise

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prosecutorial discretion include the person’s pursuit of education in the U.S.; the circumstances of the person’s arrival in the U.S.; the person’s length of presence in the U.S.; whether the person or any immediate relative has served in the armed forces; the person’s ties and contributions to the community; whether the person has a U.S. citizen or permanent resident spouse, child, or parent; the person’s age; the person’s ties to his or her home country; and whether the person is likely to be granted some sort of temporary or permanent relief from removal.

Truth #40 Many immigrants are eligible for work authorization, and they don’t even know it

Some immigrants who do not have permanent residency can still obtain a social security number (SSN) and an employment authorization document (EAD) in order to legally work in in the United States. If you have already submitted your paperwork with the immigration service for your permanent residency and are still waiting for the decisión on your case, you are allowed to legally work in the United States with the EAD and SSN. Also, if you are currently in removal proceedings fighting your case in front of an immigration judge, you may be allowed to apply and obtain an EAD as well. There are also other instances when immigrants can apply for work authorizations as well.