Transcript Document

Protocols for Interactions
with International Students
In a Student Legal Service Practice
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Key Issues for International
Orientation Leaders to Share
with Incoming Students
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1. Before developing a flexible protocol, first examine
the data that you have available in your office
regarding:
- office usage by International Students,
- top areas of consultation and representation by
International Students, and
- the nature and topical interests that arose in
previous orientations.
2. How much time do you have at orientation?
15 minutes, 30 minutes, 60 minutes?
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3. What can students who may be suffering from jet lag
and culture shock be reasonably expected to retain?
You may have six key topics but may in fact need
to select just one where you can be most preventative and impactful.
4. Can you obtain the basic demographics of your
potential audience in advance of orientation?
Is China/Taiwan the majority? India/Pakistan?
Korea? Middle-East?
What language barriers might exist? Most Universities require minimal proficiency in English.
Many students are highly proficient but few are
proficient in the language of law.
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5. Avoid legal jargon and terminology.
For example, do not say actus rea, mens rea and other Latin
terms you might use in an appellate brief.
6. Let the students know that if you are talking too fast
or too softly they can yell out “slow down” or “louder”
and this is fine with you.
In most cultures interrupting a speaker is considered very
rude but in this instance you need to welcome this feedback.
Why? Because many students are translating what you are
presenting, which means if you are a “fast talking lawyer”,
you have lost them right after you begin talking.
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7. Note that in many cultures the legal profession is not
common and may not enjoy prestige or influence.
You may need to explain the role of attorneys in U.S.
during your introduction outlining your program before
you go to your topic(s).
8. Have written materials:
- Program Guide,
- Guide to your topic(s).
Don’t overload.
- Provide a memorable tchotchke.
SLS at U of I uses computer keyboard brushes
and we make it a bit of a game for students to
guess what they are.
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9. Use visual aids, humor, self-deprecation, power point etc.
10. Leave time for questions and answers.
Make sure they know where they can find out more about your
topic and others, and
How to Locate, E-mail, and Call the office.
www.odos.illinois.edu/sls
Fall 2013: 1st Floor, Levis Faculty Center,
919 West Illinois, across from ISR
(Back to: 324 Illini Union, Spring, 2014)
217-333-9053
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Protocol for
Driving Related
Issues
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What To Do During a Traffic Stop
When you see the police lights or hear the siren, pull your car over
to the nearest safe area to stop, as soon as possible.
• Do NOT try to flee either by car or on foot.
• Stay in your car and wait for the police officer to come to
the driver’s side of your car.
• Keep your hands in sight on the steering wheel.
• Do not make sudden movements.
• Stay in the car unless ordered to get out.
• Do NOT try to touch the police officer.
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What To Do During a Traffic Stop
• Roll your window partially down. You will be asked to
produce:
1. Driver’s License,
2. Registration, and
3. Proof of Insurance.
• Produce them for the officer.
o Always provide the officer with your Name and Address when
asked.
o Providing a false name is a serious crime in Illinois.
• The officer will inform you about what law you were
disobeying.
o Sometimes the police will ask you if you know what you were
doing wrong.
o It is ok to answer, “What do you think I was doing
wrong; I am not exactly sure.”
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What To Do During a Traffic Stop
• If you are given a ticket, sign it.
o Signing a ticket is not an admission of guilt.
• NEVER offer in any way to give the officer
money not to issue the ticket.
o Attempting to bribe an officer is a crime,
and you will go to jail.
• Do NOT argue with the officer.
o You can always fight the ticket in court with assistance of Student
Legal Service for Champaign County tickets.
• Do NOT tell the officer that:
o You will sue him/her.
o That your mom/dad is a lawyer and will have his/her job.
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What To Do During a Traffic Stop
• The officer may ask you to give him money for bond if it
is a serious offense.
o This will keep you from going to jail.
o You will still have to go to court.
o If you are later found not guilty, the money will be returned to
you.
• Or, the officer may keep your license as bond.
o You may legally continue to drive with the ticket substituting for
your license until your case is resolved in court The officer
does not generally have the right to insist on seeing
your passport and should not retain it if you provide it.
o A passport is NOT a valid form of bond for routine traffic tickets.
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What To Do During a Traffic Stop
• You may refuse permission to have your vehicle
searched.
o You may say, if your consent is requested, “I do not consent
to my car being searched”.
o If there is probable cause for an offense, the officer may
search without your permission.
• Some tickets can result in you being formally
arrested and taken to jail:
o Driving under the Influence of Alcohol or Drugs,
o Driving on Suspended or Revoked License,
o Presenting false License or Insurance,
 and several others.
• Don’t panic. Come to the Student Legal Service
office after you are released from Jail.
DRIVE SAFELY!
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Consultation/Representation Protocol
for International Students in
Criminal and Quasi-Criminal
Interviews
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1.
Make sure your intake form for criminal/
misdemeanor, quasi-criminal (city ordinance
violations) and traffic* contains a notation
about student status.
•
•
•
Are you an International Student?
Are you a U.S. Citizen?
Are you a permanent resident?
* In Illinois, traffic cases are often criminal-misdemeanors
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2.
Intake system will not permit completion of the
online form without the above question being
answered.
–
This saves the embarrassment of having to ask
during the consultation and permits the staff
attorney to be prepared to use the Acknowledgement
of Possible Collateral Consequences form.
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3.
Never assume you can judge citizenship or
international student status based on appearance or
characteristics of the student such as
–
–
–
Name
Permanent/home address
Accent or lack thereof.
Failure to obtain student status accurately can constitute
legal malpractice and, more importantly, your client can
suffer extreme collateral consequences.
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4.
In conducting the interview, it is critical that the
notion of “confidentiality” as the key to the
attorney-client relationship be the first item for
discussion after introductions.
–
The protection of the attorney-client relationship is not
universal, and, in fact,
–
Is not conceptually or culturally part of the legal or intellectual
framework for students from many non-western cultures.
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5.
The privilege “confidentiality” is basic to the legal
profession but is by no means fully understood by U.S.
students who have been inundated with this notion via
television, movies, internet, books, etc.
-
As Student Legal Service attorneys, we should not be surprised
that international students are very cautious about what and how
they share information with staff attorneys.
-
“I can lose my job and the right to practice law if I tell others
what you tell me,” is one approach to reinforcing that they can
trust the attorney not to divulge without permission.
-
However, “I will disclose to the extent necessary to achieve your
goals by talking with the Prosecutor and through filing
documents with the court.”
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6.
Share a copy of the Rule of Professional Responsibility, if
necessary.
7.
Comparing attorney-client confidentiality to that of
priest-penitent is often a culturally irrelevant reference
point, which may lead to a blank stare.
- Tell the student that they can tell you secrets and that no one can
require that you tell.
-
However, if the student tells others, then it means that they were
not really relying on secrecy and those folks can be required to
tell the secret in court.
-
Inform the client, “Do NOT share on Facebook, on Twitter or in
email any aspect of your case. If you do, you can expect it to be
used against you.”
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8.
Language proficiency among international students varies
from superb skill in English to minimal.
It is a rare International Student, or even a U.S. student,
that will have a proper command of legal nomenclature
and the processes of the system.
DO NOT USE LEGAL JARGON!
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9.
Speak distinctly with a clear break between words, and
slow down, if necessary.
-
“If there is anything that you do not understand,
please feel free to say, ‘could you explain that’, or
‘could you repeat that’.
-
Students need to feel free to ask questions.
-
As an attorney, you may be regarded as an authority
figure that cannot be interrupted or questioned.
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10. Often International Students are taught British
English as their second language.
Spoken American English is almost, though not
quite, a different language than formal British
English.
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THIRD PARTIES IN CONSULTATION
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11. Many times students will want another student/friend
to be present during the interview for “moral support”
or “translation.”
-
On occasion, the third party is also a witness or a party to the
incident.
-
Sometimes the student is coercing the presence of the student/
friend to prevent facts from being disclosed to an attorney.
-
As a matter of ethics and policy, University of Illinois Student
Legal Service discourages the presence of third parties in the
interview and will NOT permit it until
-
there has been a chance to discuss the matter without the
third party being present, and
-
then the client must sign a “Waiver” which explains the
risks (see sample waiver).
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-
Providing the option to speak with you alone and then having
the follow-up conversation with the third party provides
“cover” for the student client.
-
It is you as the attorney that is making the initial decision and
avoiding the conflict with the third party at the inception of the
process.
12. Student Translators can be useful, but they are usually
friends who are not court-certified, and rarely do they
have a meaningful grasp of confidentiality.
-
These shade-tree translators are not your staff members and
are not bound by the umbrella of office confidentiality.
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13. There are also some cultural issues in which female
clients are being chaperoned by a male relative while
on campus.
-
This occasionally occurs with students from very traditional
Middle Eastern cultures.
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The presence of the male chaperone is the only condition under
which the female can have a consultation.
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The very issue that the female is seeking help for may arise
from the actions of the chaperone.
-
Possible solutions:
- Have the interview done by a female attorney
- Have the interview done on Skype or via telephone
- Obtain a referral to an attorney with similar cultural
background who may be more adroit at finessing the issue.
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14. Once you have developed a
rapport with the client and have
the basic facts, it is time to discuss
legal approaches and the process.
BUT…
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• How can I plead not guilty when I am guilty?
• The police charged me, I must be wrong.
• I told the officer, “I am so sorry, I am so sorry.”
NOTE: Is this a confession or cultural response to
authority?
• What is arraignment? What do I do in court?
• Will you be with me?
• Will the university find out? Will I be deported? Will my
country find out?
• In Illinois, the Secretary of State Driver’s Services handles
driving records. Make it clear this “Secretary of State” has
nothing to do with foreign relations or immigration.
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These are a few of the questions that the client will
interject.
-
-
Provide a visual picture of the process; if you have a pamphlet or
guide, supply it.
Many international students read English far better than they
speak or understand it orally.
Once the process is described, it is a good idea to have the client
verbalize the next steps back to you.
In assessing program effectiveness, we learned that clients did
not consistently know what the next step or steps in their
cases were.
-
We now prompt for knowledge of next steps/actions.
-
Assessment shows overwhelming client knowledge.
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15. Now you can talk about the “BUT” panic bullet points in
14 above more effectively.
Keep in mind that if the client remains unusually
stressed about going to court, they can go to court to sit
in the gallery to observe when the court is handling
similar matters so they have a feel for the process.
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 The “BUT” panic bullet points are your Teachable
Moments. Most Student Legal Service programs assess
Educational Outcomes with survey questions on a
Kikert scale, using questions such as:
Through my experience in the legal process, and because of the
particular way Student Legal Service I …
Have a better understanding of the legal process.
Am better equipped to handle similar situations in the future.
Have a better understanding of the options available
Have a better understanding of the role and functions of
attorneys.
Have a greater understanding of the U.S. legal/judicial
system, as a whole.
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 There some obvious cultural barriers when discussing
issues where students come from societies in which
– The presumption of innocence does not exit,
– The power structures and traditions are authoritarian,
– “Rights” may be enshrined in written form, but are illusory in
practice,
– Obeisance to police is an automatic response,
– Attorneys’ first loyalty is to the “state” or the “party” not the
individual client.
 The U.S. Bill of Rights is profoundly about Individual
Rights, and this is culturally ingrained throughout our
society and fundamental to American lawyer.
– At no point in the U.S. Bill of Rights does it speak of the “duty”
or “obligation” of the individual.
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• The Constitution of the People’s Republic of China,
Chapter II, The Fundamental Rights and Duties of
Citizens, consistently is framed in terms of duties to the
state and society, e.g.,
– Article 41, “right as well as the duty to work,”
– Article 46, “duty as well as the right to receive education,”
– Article 49, “duty to practice family planning,” “duty to support
and assist their parents,”
– Article 55, “duty to perform military service,”
– Article 56, “duty to pay taxes.”
– In theory, as opposed to practice, there are free speech
rights, search and seizure rights, and a right to
religious freedom as well as equal protection of the
laws.
– The Chinese Bill of Rights does NOT guarantee a right
to legal counsel, protections of confidentiality between
attorney and client, the right to remain silent, etc.
– In practice, all rights are subordinate to the interests
and policies of the Communist Party, including the
Court system.
• The Constitution of the Republic of Korea (South Korea),
Chapter II, Rights and Duties of Citizens, similarly has a
focus on duties rather than rights of individuals, although
Rights are explicitly stated.
– Article 12(4) enshrines the right to counsel, “Any person who is
arrested or detained shall have the right to prompt assistance of
counsel. When a criminal defendant is unable to secure counsel
by his own efforts, the State shall assign counsel.”
– U.S. Miranda warnings are enshrined in the text of Article 12(5),
although right to remain silent is not explicit.
– Article 12(7), at least in theory, provides greater protection,
“Where confession is the only evidence against a defendant in a
formal trial, such confession shall not be admitted as evidence of
guilt, nor shall a defendant be punished by reason of such
confession.”
– As in People’s Republic of China, there is a clause that potentially
subjugates “guaranteed” rights. Article 37(2), “Freedoms and
rights of citizens may be restricted by Act only when necessary for
national security, maintenance of law and order or for public
welfare. Even when such restriction is imposed, essential aspects
of the freedom or right shall not be violated.
• The Constitution of India contains fundamental rights
with legal and constructional protection of the
fundamental rights.
– Citizens have a “right” to seek protection of the Supreme Court
and other courts for enforcement of rights. However, there is also
provision for the Suspension of rights.
– Various rights are also subject to limitation if their exercise is a
violation of “morality”.
– There are protections against arbitrary arrest and provisions for
due process.
– Upon arrest, there is a “right” to consult an attorney and to
arraignment within 24 hours.
– However, civil courts are notoriously backlogged in India; the
criminal courts much less so.
• The role and functions of attorneys are culturally
recognized and given legitimacy. Gandhi, like Lincoln,
was a lawyer.
– The judiciary is quite independent from the other branches of
government.
– Attorneys are not agents of the State, and there is a recognized
attorney-client confidentiality, even if in practice, consultations
may be done in public settings.
If you know the country of origin for your International
Student, google that country’s Bill of Rights and take a few
minutes to read it.
While rights are often purely aspirational, they are
revealing of cultural mindset in terms of dealing with you
as an attorney and the U.S. legal framework.
Your client may, indeed, have very good reasons to
distrust the notion of confidentiality, or that he can really
enter a plea of not guilty to a charge.
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The opportunity to educate yourself about the student’s
legal culture will help you explain the process and
procedures that will take place in the case.
Step 1:
Step 2:
Step 3:
Step 4:
Step 5:
Arrest
Arraignment – where you get the formal paper with
the charge and enter a plea of NOT GUILTY.
Discovery – where the state has to turn over its
reports and records.
Motions – where defense challenges legal aspects of
the case before an impartial judge
Pretrial – where the case can be resolved through
negotiation, dismissal, or amendment, or scheduled
for trial.
Provide a timeline and let the student know you will be with them
every step of the way.
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In entering an “appearance of counsel”, we always demand
a trial by jury, which in Illinois, is provided for even in
routine traffic cases.
-
-
This means it is necessary to explain briefly the jury
system and that it is extremely unlikely actually to take
place, as most matters are settled through plea bargains.
Of course, this then means you have another Teachable
Moment explaining the nature and practicalities of plea
bargaining.
~ “We negotiate all sorts of things: the price of cars, the
terms of leases, the price of food in public markets,
and other items.”
~ Negotiation is an almost universal concept, although
not in the context of the criminal justice system.
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Student Legal Service attorneys are, first and foremost,
attorneys, but also Educators about the legal process and
values which may greatly influence, in positive ways, the
legal cultures where our students come from.
Who knows? Their experience with you and the U.S.
system may act as an impetus for improvement in the
home country, assuming there is a need for improvement.
Always be prepared to acknowledge the imperfections of
our own legal system.
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REVIEW OF
COLLATERAL
CONSEQUENCES
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The University of Illinois Student Legal Service uses an
Acknowledgement of Collateral Consequences
form, which contains twelve (12) bullet point items.
The points should be reviewed and explained with the
client before a final plea is entered on the case, or the
case is referred to private counsel.
We take notes and have the client sign the
acknowledgement, and each party has a copy.
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45
ENTERING
THE GUILTY PLEA
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• If your courts use written waiver forms for traffic,
misdemeanor, and city ordinance violation cases, review
the contents with the client in the office. Avoid last
minute review in court, if possible.
• The law requires a “knowing”, “voluntary” waiver of
rights with advice of counsel.
• Again, the concept of “rights” is not real for many International
Students, and they, as well as U.S. students, will sign a waiver
without reading the document.
• The court, in accepting a waiver, must make an ascertainment
that there has been a knowing and voluntary waiver, but this is
often perfunctory.
• For example, the judge will ask, “Do you understand that by
pleading guilty there will not be a trial by judge or jury?”
Answer: Head nod, or “Yes.”
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• The judge never asks, “Could you describe what a jury trial is
and how many jurors it takes to vote for you to be found
guilty?” (Of course, many citizen clients couldn’t answer this
correctly, either.)
• The more expansive question is the one we as SLS attorneys need
to have with our clients to insure that there is meaningful
knowledge rather than rote.
• Don’t be embarrassed to request a certified translator for
the proceedings.
• In many cases, the court is required to mention that there
could be Immigration issues arising from a guilty plea,
but the admonishment will not be specific.
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• Failure to disclose collateral consequences may not
invalidate a guilty plea and is not necessarily ineffective
assistance of counsel, but it may be MALPRACTICE for
SLS attorneys who deal regularly with International
Students in matters that have Immigration impacts.
• SLS attorneys may have a higher duty of care because of the
nature of the clientele.
• Under Padilla, if it is reasonably certain to have specific
consequences, those must be disclosed.
• In Illinois, failure to tell someone a conviction would impact their
“plumber’s license” was found to be malpractice. Who knows
what specific facts led to this scary outcome.
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CIVIL
CONSULTATION/REPRESENTATION
FOR INTERNATIONAL STUDENTS
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The interview techniques illustrated in
the criminal interview context are
generally valid for non-criminal matters
such as housing, credit issues, contracts,
consumer issues, although there are
few, if any, immigration collateral
consequences in civil matters.
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• Begin the interview by making sure you can pronounce
their name, short chat about where they live, what they
plan to do with education tied specifically to information
provided on intake form.
– This allows
• you to judge their understanding of English and the pace of
speech you need to use,
• you to get used to their accent and should help them to see
that you are interested in the “whole person”,
• them to talk about something less likely to be as emotional
or embarrassing to talk about and
• the two of you to form a more comfortable exchange of
information before getting into the problem.
Remember, they do not think anyone has had exactly the same
problem as theirs and are usually embarrassed about it.
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• Creditors may consider immigration status in granting
credit.
– The theory is that visitors, non-immigrants may not be in the
U.S. enough time to pay off debt.
• Citizenship is not required to file for bankruptcy.
– Filing under Chapter 7 or 13 should have no effect on
immigration status.
– Bankruptcy is not a crime!
– Sometimes the detailed accounting required by bankruptcy may
reveal past actions such as bounced checks, improper transfers
of assets, etc. that could lead to negative immigration
consequences.
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• Landlords will threaten tenants that if they do not pay it
will hurt their immigration status.
– This is not generally true, unless it becomes a history of
irresponsible or fraudulent abuse of credit and then will not be
considered “good character.”
– Certainly a good faith dispute or misunderstanding or
expenditures beyond one’s means when one has little experience
knowing what that is, or catastrophe befalls causing unexpected
bills, is not going to harm immigration status.
The Landlord has no role in the immigration process.
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• Most International Students are prevented by their Visa
from having a job, earning money through traditional
work.
– They must rely on family, their savings or passive (e.g. trust,
investments, inheritance, family, gifts) for resources beyond
what they have.
– Graduate students may have graduate stipend and there is a
period after graduation or during school for an Opportunity for
an Internship or Training (OPT time) when you can earn a
salary for up to 12 months after a 3 to 6 month training period,
provided it is work in their field of study to advance their
knowledge.
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• Establish what their fears and goals are. Usually, you
can help with their fears by providing information.
– You will need to help them understand that whether they can
achieve their goals is dependent on the law you share with them
and the evidence you can gather.
– Help them to understand why the other side may present facts
to the Judge, if you have to go to the Judge, such that they may
not achieve their goals.
– Explain there can be differences of opinion about how the same
facts are used and what the facts are.
– Help them understand the need for patience while “we” find out
more facts before establishing realistic goals, if necessary.
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– Be sure they understand that getting credible sources to
establish evidence about what THEY think a mechanic,
landlord, salesperson has done wrong may not be available to
you in court before a Judge and if the other side knows this, they
will proceed on that basis.
• Find out how long they expect to be in the United States
and would be available to testify at trial if they are going
to file suit.
– If they are not going to be around, there is no point in filing suit.
– If they think the landlord may be filing suit against them,
explain if they are not served prior to leaving the country, it is
highly unlikely the creditor will use the treaties in place to have
them served in their home country and a money judgment
cannot be issued against them until they are served.
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• When negotiating, if your client is one of the many
international students whose parents are making a real
sacrifice to pay for their school and have little left over
for emergencies, let the other side know that.
– Remind them the student cannot work under the terms of the
Visa while here, even part time.
– The other side may think all International students have parents
that are wealthy and earning huge amounts. This is a common
stereotype to disabuse the other side of as quickly as you can to
lower their expectations quickly.
– No money and the possibility of being in a different country
when they do start making money so they are out of range for
collection can help to get things settled.
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• Warn your clients about not to have their parents
transfer to them all at once the money for a year to avoid
the cost of multiple transactions because
– the money in their bank account will be their money for
collection purposes and
– a transfer back may be difficult to explain as not hiding assets.
• If they agree to pay someone money to settle a case
against them, work with them to identify the source of
the money and time period for payment.
– They may be embarrassed that they do not have money they
think others would assume they have.
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• Provide assurance that exemptions under your state’s
collection laws and bankruptcy laws will protect most of
their assets and allow them to continue in school
– (with caveat about going to school and paying child support
with some judges and watch out for the huge transfer to pay for
a whole year by a parent.)
• Understand that negotiating is necessary in some
cultures for the client to feel satisfied with any
settlement.
– Build this in to the strategy.
– When necessary, layout for the client that US culture trains
many people to not negotiate.
– They pay the price, wait for a sale, or do not buy.
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• Some International Students will marry someone of the
same sex legally while in the United States.
– This marriage is currently not recognized under Federal
immigration law as valid for purposes of establishing a spousal
relationship to allow the International Student to obtain a green
card and eventually citizenship.
– This could change based upon proposals in the immigration
reform process but is more likely to change for the same reasons
that the Supreme Court found DOMA unconstitutional and may
be challenged before immigration reform becomes law.
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STUDENT LEGAL SERVICE
www.odos.illinois.edu/sls
1st Floor, Levis Faculty Center,
919 West Illinois (Fall 2013)
(Back to: 324 Illini Union, Spring, 2014)
217-333-9053
62