Depends on the nature. Yeah. In fact there is actually a set of laws that are in conflict with each other on this point. For example for people who are filing matters before the department of Homeland Security uscis are one of the components or the department of justice there are federal regulations that require certain disclosures to the quarter to the Government Agency as you mentioned. It came before the tribunal that generally it is requirement for attorneys as a matter of state law also. They talk about what the model rules are or some other version of the rules. Those rules can be different than what the federal regulations are. Sometimes those things are in conflict but even more so there are confidential the as well and that would be a matter of state rule as well as federal regulation. This is a big issue for immigration practitioners studying these issues because we do have duties of confidentiality which are counterbalanced versus the duties of the tribunal. Again it depends on the context when youre looking at the situation. That is always really important that you know the context you can take a look at exactly where to go from there. Any other questions . Hello. I just wanted to go back to padilla really quick. In terms of informing the client of the immigration consequences once a commission is made how much is informing them because we are working on a case where the judge said did you tell your client that there is immigration consequences and the answer was yes. What does that mean . Do you have to actually say if you are convicted of what we said he would be you will have this consequence and it will be an aggravated felony and therefore you will be able to get that really. Is that how explicit you will be or what you generally state there will be immigration consequences . I think the Supreme Court says that it depends that in the statue that was in question and padilla it was drugs. It was very clear on the face of the statute. You have these drugs in your deportable so i think what they were saying is theres no question the Supreme Court was saying that the statute is clear on its face. This conviction is going to lead to deportation and you have an affirmative duty to say there will be immigration consequences but in fact you are removable. A leader in his dissent said what about this and what about that because in fact contrary to what some, i think there has been a little bit of a myth about the complexity or lack thereof in Immigration Law when it fact its extraordinarily complex. Theyre obviously parts in the statue that will be more competition more importantly that you are putting together the dash from virginia or whatever maryland is. I have forgotten all the statute aims but applying that to your immigration analysis. It could be more complicated. Im not sure how determined that is so complicated you have to go out and get dashed again i think pretty much if you dont know the answer at all you should go to an immigration attorney. Thats a good approach. I think with the padilla bench on the Supreme Court if the consequences are clear you have to advise the criminal defendant about what those consequences are. I think what the Supreme Court was contemplating is that if you open up the immigration nationality act and you go to section 237 which is the primary section that talks about how you can be deported from the United States and it talks about what the criminal issues are that rendered deportation and remove ability. If you can see in that particular statute clearly what the problem is thats fine but as we have all talked about Immigration Law is complex. What constitutes an aggravated felony really depends. You have to consult with a lot of parts of the immigration nationality act. We are not talking about federal courts but also state courts in the board of immigration appeals as well. We have to look at the interpretations given to those regulations by the departments. Its very complex so its very clear someone can commit a murder that is testified in the statute and we know that will result in a deportation or removal. I always believe you should refer to immigration counsel to give proper advice on that matter. I just wanted to say i agree enough of course its a state law in the statute. We have to let the categorical go by in the modified categorical go by but also there are art of the circumstances of the client. This is what i mean by it gets complicated. Is this person going to be deportable for having an offense within the first five years . Know but automatically you look at the offense and say a cmt removal. It is really complicated and theres the other section of law. The i i personally have said two criminal Defense Attorneys you need to refer out all the time and there are different ways they do it and its good for them and it covers them. I think they have to cover themselves because i think the duties on them now. I will frequently be hired as a witness and i will do research that will be submitted to a judge were asked to testify in court if need be to explain what the immigration consequences are. I might meet with the defendant directly or work with a criminal defense attorney but in those cases you can really sort of plan what are the safe harbors and what are the things that people can work with that have the least immigration consequences . I would always recommend that as a u. S. Citizen. You ought to get an immigration attorney involved if theres a criminal charge. Has the duty now been raised because of padilla . I think the Supreme Court says if its clear you have an affirmative duty to inform them of what the consequences. If its not clear you have a duty to tell them that there are immigration consequences related to that and then i think thats the only tricky part which is okay do you just say this is a really, really dont understand. You really have to get an immigration attorney. I think the answer is to cover yourself as a criminal attorney the answer is you have to go get someone and we have to get this advice. Your client the defendant has xyz immigration status and there may be something you are not doing yourself a favor for the future by not forcing them into getting counseling and if they dont want to do it you dont want to do it. There are a lot of criminal Defense Attorneys who i know who will make the call on their own. While we have our next question, that touches on the question i have for you all. For each of you im curious to know how your practice has changed or how you have seen other practices of other attorneys change and if you see it has had as youve touched upon now has had an impact on the way people run their practices particularly in how you see this play out especially in cases where because of the place where you are in the proceedings were time or resources also are limited. Are you saying that attorneys are in fact branching out and having, consulting more with colleagues in other areas of law in order to meet the standards . I think there is a difference. I have to say a lot of criminal and tourneys i have worked with in virginia over the last few years prior to padilla have been aware that there are immigration consequences so i have had longterm relationships with many attorneys where we are going back and forth in discussing this. For some there is a change in for others there is not. Some are already where that is to have affected their client and that is good. I do consult with criminal attorneys but im a regular practitioner as well. I dont know anyone who only does that. The place where they really need it is in a Public Defenders Office in those public defenders where they have that is really amazing in my opinion. I have a longstanding relationship with the pd office with Fairfax CountyAlexander County and it is important to me. There is no limit to how much you can get. I do know in maryland they have so much more about immigration inside their office and also in colombia. They have the funding for it which i think is remarkable. We reach out from attorneys. I do a lot of family law work and i get immigration components. I will be at asked to advise of the premarital agreement for example or help someone figure out if child custody is affected International Property light rights. It tourneys generally who look at their clients as people who they want to help and they want to serve on a holistic sense would be more likely to reach out for immigration assistance. I think attorneys who look at their job is being very discreet and limited and just in the context of the lawn which they practice those attorneys are going to ask anybody anything that relates to their cases for tax issues, bankruptcy issues or any other area because they see they are doing a discreet service. They think about the overall approach and the impact that it will happen you cant look at something in a small box. They are touched on in many different areas. I think thats right. The one area where i increasingly give people the opportunity to have a Second Opinion i get asked are what are the risks particularly if i have an undocumented immigrant who has been a victim of discrimination and they want to know what the risk is when they bring the suit of deportation. I tell them in my own experience i have never had a client that would run afoul with that but they should publicly for peace of mind talk to someone else and have referrals to consult a map created. We recently saw this play out in a good way for all the clients involved the entire fraud matter where a victim was being prosecuted because he assisted in the overall scheme as well. Maryland public defender who is representing this victim in this criminal prosecution referred to the person in his office that knows the issues and is there to advise criminal Defense Attorneys about possible immigration consequences and through working with the client through her being involved as well realize this was a victim of and was able to refer the case and get it so that they didnt prosecute him move forward on the case. It can result in not prosecuting the matter when you have someone who can say this is an immigrant and a victim of a crime who because of issues with interpretation is being prosecuted and there is confusion around the case. I saw it play out just that one time very well. Question . How can you find out through the freedom of information act is a person as an american citizen or an illegal immigrant . I guess you could file a foia you cant because a per certificate search on a u. S. Citizen i guess but in terms of dhs i dont think you can get that information directly from them. I want my file from usdis i must sign the foia request. You can do census Data Research and you can do other research through the Governments National records agencies. They will do for example if you want to find out somebody came over on the manifest that is available either under the freedom of information act or something published on line so you can find out if someone came over from United States for for someones immigration records those are usually a matter of privacy. The federal government releases those individual records of individual requesting that or represents it like an attorney. You what if you are contemplating a lawsuit against that person and you are trying to find out their status . If you see somebody you have a right to discovery and if your question is relevant to your lawsuit you can see that information discovery. Usually immigration status and citizenship would not be relative to most matters that are legal in the United States but her haps in your particular case it might be relevant in discovery. Theres a dispute about that than a judge could resolve that for you. Prior to the discovery or instituting a lawsuit how would you find out the status of a person . I dont think you can. I guess if a person is a u. S. Citizen, if you like those birth documents are more available ironically. Is possible if the person is a public figure you can get more information about that for some. Of course you can always ask a question if you want to. Lets a person has a license of some type and say a pilots license. Would he have to be able to check with the faa to see if he is a citizen or noncitizen . I dont know the answer to the faa question. Whatever the agency is its going to be regulated by whatever the regulations are regulating that particular agency sofa to stay requirement or a federal requirement then i think you would foia them for their application but i dont know if they would issue that. A i dont know the status question will be a requirement so that information may not even be there. The federal government was controlled by the freedom of information act and the matter what federal agency you want to go through they will be governed by the same rules in the same law. Thank you. Any other questions . No more questions . I would like to know also if we could just sum up. Anne touchstone remedies available under padilla but as far as malpractice more generally and in a the situations that we discussed today with tim padilla can each of you talk a bit about also at the state level this is very important. Different remedies available to clients. I mean the remedy i guess depends on what we are looking for. I can really only. To the remedy of the habeas in virginia because that is pretty much all that he do on that level with respect to what padilla does for me and my clients. As i said its been limited by the commonwealth so thats the end of that with respect to that. Hopefully we will have a case in the case is going to be one of falls within the requirements of the statute so we are able to get it in. How does that differ from the cases at the federal level to in general like the cases you might be handling whether immigration or asylum etc. At the federal level . You mean the criminal case is . Is there a difference there between the state and federal . Only to the extent of course that whatever the criminal outcome is whether state or federal its going to have its effect on what is happening in the immigration context. Ive personally do not handle habeas in the commonwealth of virginia. Im not a criminal practitioner and for the most part thats why i have one in my house and buy the house i mean firm. Its good to have that c. Can work on those issues and of course that would be a remedy. It translates itself into the Immigration Court later on down the road. With respect to the other issues that were raised i would prefer to come back on that and i will be the negative one again because i think what they are doing in maryland and in the district they are real inspirations and we should have more in the commonwealth. The commonwealth has with the Virginia State or does. The virginia bar has its unauthorized Law Committee and they do what they do inside the construct of the bar. The Virginia State bar is designed to Police Lawyers not necessarily to police nonlawyers. They are volunteers on that committee. Its a long road when you file the complaint with the Virginia State bar. They can refer in the cases out to Law Enforcement agencies. What virginia needs is a better statute unlike not unlike the one you will hear back from john and anne but we need more bite. We need to have more than the possibility of a classical misdemeanor hanging over your head. I think one of the issues we have to touch base on at this point is maryland has his ascetic statute remedied when people consult with nonlawyers to provide terrible ineffective assistance. The maryland immigration consultant act is found in the law article section 1433013306 i believe. The statute actually will prohibit immigration consultants from providing legal advice or Legal Services were immigration matters but it goes beyond that. Its something i have a little bit of involvement on in the consulting world regarding some of the language. One of the things requires its immigration consultant has to have a written contract with the individual about what the services are that will be provided. He can be Legal Services. It can be essentially Secretarial Services such as translations or typing information provided. The statute does describe Legal Services providing forms, filing the forms for them constitutes it provision of Legal Services. In addition to this the consultant has to post in a conspicuous place that the person is not an attorney that can practice law so that its clearly visible to people who might be seeking immigration consultant services. If there is a violation it does provide for the ability to sue civilly to be able to obtain recuperation paid to the consultant but three times that amount. Plus it also provides compensation for the attorney who is bringing the lawsuit and thats an important incentive for attorneys to be able to bring such cases because then they get compensatcompensat ion as well. It does create a criminal penalty as well. You can get up to a year in jail a 1000 fine or both and thats per infraction. In some of these cases they are not just taking on one case. Its dozens and dozens of cases bringing all of these potential charges talking about a substantial penalty that can be applied. Its only been around for less than 10 years so it doesnt apply very frequently but irelands attorney general has created a web site for information to the public to encourage people to come forward there are some remedies in this particular area. I guess the struggle that we see even with the maryland immigration consultant act is often its too late when the client realizes that they have been the victim and fraud to be a will to use the ax because of the oneyear statute of limitations. That is something we are struggling to get the information out to the community before the issue happens or directly after so they can take advantage of some of these remedial measures. I would also say one of the issues