Thomas F. Gleason ()
‘Sanctuary cities” are places where undocumented persons can interact with the government without the fear of immigration law enforcement. The raging controversy over them shows no sign of abating—the governor of Texas has just signed into law what is reported to be the nation’s strictest measure against such local government action. In New York City and other places, the efforts to implement sanctuary city status advance.1
This public policy debate has deep implications for how we attorneys conduct discovery, and how we treat undocumented persons in the courthouse. It is not clear whether New York or any other state system will ever have sanctuary courthouses, so it is foreseeable that pretrial discovery or trials will present some difficult judgement calls in the new immigration enforcement environment.
There long have been reported cases in which immigration status bore upon the judgment (it often is pertinent to civil claims seeking damages), but now it seems that this status also may immediately affect a party’s physical ability to be present to prosecute or defend a claim.
Navigating the System
Ten years ago undocumented people had some freedom to navigate the court system in pursuit of rights or remedies. Consider Balbuena v. IDR Realty, 6 N.Y.3d 338, a 2006 Court of Appeals decision in which an undocumented alien who was injured doing construction work sued the site owners. The non-citizen’s immigration status was central to the legal arguments over the recoverability of lost wages, and after a careful analysis of federal law, the Court of Appeals held that the claimant was not barred from asserting the lost wages claim.
Judge Robert Smith dissented and would have ruled that New York courts could not provide a recovery that would implement an illegal employment transaction, but his opinion did not suggest that merely appearing in the case risked the plaintiff’s imminent arrest and deportation, a consequence that might ensue today. A plaintiff like Gorgonio Balbuena would probably never see an appellate court, because he would not be around to pursue or defend an appeal.
The Office of Court administration (OCA) has a policy that permits law enforcement officials seeking to take persons into custody to do so in a New York courthouse. Law enforcement agencies are permitted to pursue their official duties, provided that they do so in a way that does not disrupt or delay court operations or compromise public safety or court decorum. Such cooperation by our court system seems necessary and appropriate, but there are worrisome consequences if courthouses become immigration apprehension zones.
The court system in New Jersey recently asked the Secretary of the Department of Homeland security to add courthouses to a list of “sensitive locations,” where immigrations and customs enforcement would not be sought. The concern expressed by the Chief Justice of the state was that the presence of immigration and custom enforcement agents in the courthouse may deter witnesses, victims and defendants from showing up to testify.2 His request has apparently been declined.
Immigration Status Inquiries
It does not appear that up to now the Court of Appeals has considered undocumented persons to be without any legally enforceable rights, nor has legal immigration status been a precondition to standing to sue. For example, in Ramroop v. Flexo-Craft Printing, the Court of Appeals recognized that “some workplace protections’ and primary workers’ compensation benefits have been held to be available to injured workers who cannot demonstrate legal immigration status … .” 11 N.Y.3d 160, 168 (2008).
This seems sensible, because eliminating legal standing for undocumented persons could invite all types of abuse, and actually increase nefarious employers’ incentive to employ them. (If the employer fears no report to the Department of Labor, why pay required wages or create a safe workplace?).3 Therefore, Ramroop and other cases suggest that we have not descended to the point that undocumented persons are completely without legal rights.
If this is so, it follows that we attorneys must recognize in the current enforcement environment that an inquiry on immigration status may be legally irrelevant, but tactically significant as a method that deters relevant testimony, or the appearance of a party or witness. In such cases, is it appropriate or ethical for counsel to inquire as to immigration status, if the answer has nothing whatsoever to do with the merits but would frustrate the receipt of relevant proof?
Let us hope not. Disclosure of any matter that may lead to admissible evidence is pretty wide open under CPLR 3101, but perhaps it is time to examine how our liberal disclosure rules interact with the changing environment of immigration enforcement, and implement some restraint. Let us also assume, as seems eminently reasonable, that at least some immigration inquiries are inappropriate.
It is unprofessional conduct to threaten criminal prosecution to obtain an advantage in a civil matter (see DR 7-105, 22 NYCRR 1200.36) and it may persuasively be argued that seeking to publicly reveal illegal immigration status purely to obtain a litigation advantage unrelated to the merits also is improper. Worse, the threat of exposing deportation risk in an egregious case might even approach coercion (see discussion on involuntary servitude in U.S. v. Kozminsky, 487 U.S. 931 (1988)), which certainly is well beyond the ethical counsel’s repertoire.
Frivolous conduct includes acts undertaken to harass or maliciously injure another person, who presumably include undocumented people who come before the court as a parties or witnesses. 22 NYCRR 130-1.1( c)(2). The U.S. Supreme Court has made it clear that undocumented persons are not completely without due process rights, and that implies that some measure of protection should be applied, consistent with the enforcement of federal law. The new OCA policy implicitly and appropriately recognizes the duty to facilitate federal law enforcement, but a subtle approach consistent with state interests appears to be in order.
Is it then permissible for counsel to direct a party or witness to decline to answer a question on immigration status? Part 221.2 of the Uniform Rules, which governs the conduct of depositions, may not be enough to support that refusal. That rule currently provides that a deponent shall answer all questions, except to preserve a privilege or right of confidentiality, but neither of these grounds would appear to apply to immigration or citizen status. Perhaps the catch-all provision in part 221.2(iii) may serve, as it allows a refusal to answer “when the question is plainly improper and would, if answered, cause significant prejudice to any person.” However, not answering such a question still is problematic, because the refusal itself may be the functional equivalent of an admission.
The solution obviously is not simple. Suppose an abuse victim seeks protection in court, and thereafter is detained by immigration officials? One can easily imagine cases in which victims of improper or illegal conduct would be intimidated and be reluctant to appear in a courthouse. Even if the undocumented person is not a victim, it would be very bad luck if such a person were your sole exculpatory eye witness.
Undocumented persons may not have certain rights under U.S. law, but moral problems ensue if these people are at risk of abuse, because the courthouse and legal system are rendered essentially off limits to them. This moral risk is complicated if zealous advocates are without clear guidance on the propriety of immigration status inquiries. Presently, at least to the author, this guidance is far from clear.
Perhaps we should have a rule that prior to posing a question on immigration status, counsel must make a preliminary showing of the relevancy of the question. A well-tailored rule along those lines may be consistent with the primacy of federal law on immigration, and still advance the important state interest to promote the truth-finding capacity of the courts. Unfortunately, in the din of controversy currently surrounding immigration policy, this is certain to be a controversial step.
What a mess—our professional actions seem to be guided by our moral compass alone, while the legal obligations and restrictions that govern our obligations as lawyers remain unclear.
2. See NJ Spotlight, May 5, 2017 report. CNN has reported that the Departments of Justice and homeland security have stated that immigration agents will continue to make arrests at courthouses and have encouraged cities to revoke their sanctuary policies. See www.cnn.com/2017/03/31/politics/ice-arrests-courthouses-sessions-kelly/.
3. In U.S. v. Kozminsky, the U.S. Supreme Court considered whether an employer threatening immigration disclosures could be a method to exact unconstitutional involuntary servitude from the undocumented worker. U.S. v. Kozminsky, 487 US 931 (1988).