This has been an extraordinarily successful year for the International and Immigration Law Section Council of the Illinois State Bar Association. It is a testament to what you can accomplish when you have many people contributing ideas and effort.
In February, David Austin organized with the National Immigrant Justice Center a CLE program on Effective Representation of Immigrant Survivors of Domestic Violence. This program reviewed the Violence Against Women Act, which recognizes that domestic violence poses serious risk to the health, safety and welfare of women and their families, as well as a number of men, who are themselves victims of domestic violence.
On May 1st, Scott Gertz organized a Law Day Program on the Crisis in Darfur, a region of Sudan. The program which took place at The John Marshall Law School included presentations by our Section Council Secretary, Professor Cindy Buys of Southern Illinois University School of Law, Professor Samuel Jones of The John Marshall Law School and Professor Sean O’Brien of Notre Dame Law School. There were also remarks from Ralph Ruebner, Associate Dean for Academic Affairs for The John Marshall Law School and Judge Michael Hyman of the Circuit Court of Cook County. The program was sponsored by the International and Immigration Law Section Council of the ISBA, the Decalogue Society of Lawyers and The John Marshall Law School.
In June, Section Council Vice Chair Pradip Sahu will be moderating a program on Intellectual Property and International Law Issues in Representing a Globally Expanding Company. This is a full day program at the Illinois State Bar Association’s Chicago Regional Office. It will touch on international protection strategies, brand protection strategies, domain name registration, anti-counterfeiting, alternative dispute resolutions, corporate compliance, protecting the attorney client privilege, compliance with U.S. Export Controls and comparison of the IP laws of the United States, Germany and Japan. This is an excellent full day program.
These three programs would in themselves mark a unique schedule of activities for a year. However, they are only part of the activities.
In January, continuing a long standing working relationship between the Illinois State Bar and the Polish Consulate of Chicago, the Section Council met with the newly appointed General Consul for the Polish Consulate in Chicago. His remarks, followed by a wide ranging discussion, touched on the trends on legal and governmental issues within Poland, a practical discussion of some of the choices that were made within Poland in terms of the structure of the government and the political process after the implementation of free elections and current issues of concern to the Polish Consulate. One of the key points of discussion was the issue of consular notification upon the arrest or detention of a foreign national. Are the local police and courts following the requirements of the Vienna Convention on Consular Relations? In addition, the Consul General raised the issue of the practice of detaining non U.S. citizens at O’Hare and other points of arrival.
The issue of consular notification was then followed up by Cindy Buys and Scott Pollock. They organized in April a meeting hosted by the Mexican Consulate in Chicago, specifically to discuss consular notification related matters. This meeting was attended by representatives of the Mexican, Polish, Canadian, Turkish and Korean Consulates in Chicago as well as Mark Wojcik as ISBA Board Liaison to the International and Immigration Law Section Council and Section Council members Cindy Buys, Scott Pollock, Shannon Shepherd, David Austin and myself. We anticipate that this meeting was the first of a series of meetings to be held by or with foreign consulates in Chicago.
In addition to all the above, this is in fact the ninth issue of The Globe for this current ISBA year. This was accomplished through the contribution of 35 different authors, as well as material contributed by the U.S. Department of Commerce, U.S. Commercial Service in Chicago; Illinois Global Partnership; International Trade Association of Greater Chicago; the Office of Trade and Investment of the Illinois Department of Commerce and Economic Opportunity; the Illinois District Export Council and the U.S. Export Assistance Center of Chicago.
Thank you to all the authors and organizations providing material, as well as the terrific support of many of the members in the Section Council.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-mail: lfmatuszewich@mkm-law.com
It comes as no surprise that the population of the United States is increasingly mobile. But what might surprise people is that there are an increasing number of issues relating to caring for children in families where one parent resides in the United States and one parent in another country.
What are the basic visitation rules when couples divorce? The Illinois Marriage and Dissolution of Marriage Act provides that a parent who is “not granted custody of the child is entitled to reasonable visitation rights.”1 To enforce those reasonable visitation rights, the trial court has “broad discretion” to set forth the terms of visitation.2 This discretion includes setting rules as to when the non-custodial parent could visit his or her child, and, in turn, when the child can travel to visit his or her parent. For example, a “standard” visitation order can usually include the “unsupervised, overnight visitation in the home of the noncustodial parent.”3 The trial court may not restrict the visitation rights of the non-custodial parent unless “the visitation would endanger seriously the child’s physical, mental, moral or emotional health.”4 A reviewing court will not overturn the trial court’s visitation order unless the trial court abuses its discretion5 or unless a “manifest injustice has been done.”6 To prove an abuse of discretion, the visitation order must be one “where no reasonable person would agree with the position of the trial court.”7
But how do the basic visitation rules play out in an international context? The Hague Convention on the Civil Aspects of Child Abduction8 is a treaty that provides “a civil legal remedy to parents seeking the return of or access to their child.”9 Countries that are parties to this treaty agree “to the prompt return of a child who was habitually resident in a signatory country and who was removed or retained in another signatory country in violation of a parent’s custodial rights.”10 The U.S. Department of State maintains a Web site at <http://travel.state.gov/family/family_1732.html> with a list of countries that are parties to the treaty and some useful information about how to exercise rights if a child is unlawfully removed to a signatory country or not permitted to return to the United States.11
The existence of a treaty regime that provides legal remedies when a child is not returned to the custodial parent serves an important purpose. It increases the ability of children to visit their non-custodial parents who may be living in another country, because of a greater confidence that the child will return after the visit. Knowing that the judicial system of the other country will assist in the return of children makes it easier to allow the children to visit non-custodial parents abroad.
But what should the situation be if the country where the non-custodial parent lives is not a party to the Hague Convention on Child Abduction? Should a court deny visitation to a non-custodial parent who lives in such a country? Should a court allow visitation only to take place here or in another country that is a party to the Hague Convention on Child Abduction?
The Illinois Appellate Court faced these issues in a case where a father in Cook County wanted to deny visitation to his ex-wife, the non-custodial mother, who was a Canadian citizen finishing medical school in the United Arab Emirates (“UAE”).12 The UAE is not a party to the Hague Convention on Child Abduction.13
The father challenged the part of the child visitation order that allowed visitation in the UAE.14 The father argued that the trial court had “abused its discretion by granting visitation in a country that will not enforce a United States custody order.”15 However, the father failed to cite any authority in his brief to support that argument and the appellate court ruled that he had forfeited that claim.16
Custody in one country and visitation in another is an “unusual arrangement,” but Illinois courts have previously permitted such arrangements.17 An Illinois court previously permitted biannual visitation to a noncustodial father living in Israel.18 An Illinois courts also permitted a noncustodial father living in the United States to have one month visitation in the United States with the children who lived in Germany with the custodial mother.19 A California court similarly allowed a custodial mother to move to Australia with her children, giving the noncustodial father visitation rights in the United States during school vacations.20 Each of those other countries (Israel, Germany, and Australia) are however, parties to the Hague Convention on Child Abduction.
Here the father challenged the trial court’s order granting visiting rights in the United Arab Emirates. He claimed that he would have no recourse if the mother failed to return the daughter to the United States.21 But the trial court found that the father had already successfully petitioned the UAE courts for an order prohibiting the mother from taking the daughter to Iraq. Because the father was successful in obtaining that order, the Illinois trial court gave little weight to the argument that the courts there would not similarly enforce a custody order.22 Additionally, the Illinois trial court noted that the mother had already returned the child to the United States so that she could live with her father.23
The court found that allowing the daughter to visit her mother in the United Arab Emirates would “enhance the quality of life for both the mother and child.”24 The mother was now living in that country, and “[v]isitation in the mother’s home will allow the child to know her mother better and participate in the mother’s daily life.”25 If the mother were forced to come to the United States to visit her daughter, it would be more difficult for the mother to arrange appropriate activities for her daughter where the mother would be “merely a visitor in the United States.”26 In the United Arab Emirates, the mother had a car, a job, friends, and family.27 The court also found that although the father claimed that the mother would not later return the child to the United States, the father did not claim that the mother’s desire to have visitation in the UAE was a “mere ruse.”28 The mother also had to post a bond to secure the child’s return to the United States.29
The father admitted that the relationship with his former wife had been “very acrimonious,” and the trial court noted that the father refused to even look at the mother during her testimony before the trial court.30 Furthermore, the father had a right to visit the daughter for a week during the summer when she would be with her mother in the United Arab Emirates.31 For these reasons, the appellate court found no fault with the trial court’s order allowing visitation in the United Arab Emirates.
The case is instructive on the changes in child custody and visitation issues, and reminds us that in all of these international issues, the concerns of both parent and child may require some innovative orders to accommodate a new international reality.
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Mark E. Wojcik is a Professor of Law and Director of Global Legal Studies at The John Marshall Law School in Chicago. He is a former chair of the ISBA International and Immigration Law Section and currently serves on the Board of Governors of the Illinois State Bar Association.
1. 750 ILL. C0MP. STAT. ANN. 5/607(a) (West 2006).
2. See In re Marriage of Saheb and Khazal, 880 N.E.2d 537, 542 (Ill. App. 1st Dist. 2007).
3. Id. Furthermore, eliminating a “standard aspect” of a visitation order “requires a finding of serious endangerment.” Id.
4. 750 ILL. COMP. STAT. ANN. 5/607(c) (West 2006); In re Marriage of Saheb and Khazal, 880 N.E.2d at 542; see also In re Marriage of Manhoff, 880 N.E.2d 627, 632 (Ill. App. 1st Dist. 2007) (“Where the proceeding is by a custodial parent to restrict or deny visitation, the burden is on the custodial parent to prove by a preponderance of the evidence that the visitation then provided endangers the welfare of the children.”).
5. In re Marriage of Saheb and Khazal, 880 N.E.2d at 542.
6. In re Marriage of Manhoff, 880 N.E.2d 627, 632 (Ill. App. 1st Dist. 2007) (“Matters of child visitation privileges rest largely in the broad discretion of the trial court, and its determinations with respect thereto should not be disturbed on appeal unless a manifest injustice has been done.”).
7. In re Marriage of Saheb and Khazal, 880 N.E.2d at 542.
8. Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (1986).
9. In re Marriage of Saheb and Khazal, 880 N.E.2d 537, 543 (Ill. App. 1st Dist. 2007) (citing articles 1, 8, 9, and 10 of the Hague Convention on Child Abduction).
10. Id. (citing articles 1, 3, and 4 of the Hague Convention on Child Abduction).
11. See id.
12. Id at 539-40.
13. Id at 543.
14. Id at 542.
15. Id. at 543.
16. Id.
17. Id. at 542-43.
18. Id. at 543 (citing In re Marriage of Pickholtz, 533 N.E.2d 529 (Ill. App. 1st Dist. 1988) (agreed order).
19. Id. (citing Radivojevic v. Radivojevic, 295 N.E.2d 570 (Ill. App. 1st Dist. 1973) (in a contested case, custody given to mother in Germany and the father was given rights of one-month visitation in the United States).
20. Id (citing In re Marriage of Condon, 73 Cal. Rptr. 2d 33 (Call. App. Dist. 1998) (trial court did not abuse its discretion).
21. Id. at 544.
22. Id
23. Id.
24. Id at 545.
25. Id.
26. Id.
27. Id. at 540.
28. Id at 545.
29. Id at 540.
30. Id at 545.
31. Id.
I. Introduction
As the fifth largest exporting state in the country, Illinois is home to a large number of businesses participating in international trade.1 In 2006, Illinois exported $42.08 billion worth of goods and services,2 and could attribute 448,400 jobs to exporting activity.3 With the amount of trade-related transactions increasing daily, it is likely that business clients will have questions about domestic and international trade regulations. The following are international trade basics for the business lawyer, in-house counsel and general practitioner needing to advise clients with global products and services.
II. Developing a Trade Compliance Program
It is extremely important for trading clients to have an internal trade compliance program. Customs has broad authority to investigate transactions, including for the purposes of ascertaining the correctness of an entry, determining the liability of any person for fees, duties or taxes owed, determining the liability for fines and penalties owed, and for ensuring overall compliance with the laws of the United States.4 Customs must only give reasonable notice for record examination and inspection.5 Therefore, Counsel should advise their clients to have an internal trade compliance program, and the key to a superior internal compliance program is good recordkeeping.
A. Importer Recordkeeping
The Tariff Act of 1930 requires any owner, importer, consignee, importer of entry, record filer, as well as various others involved in an import transaction, to make, keep and render for examination any records which pertain to that transaction.6 Records normally involved in the ordinary course of business need to be kept, and include but are not limited to, information relating to an importation, declaration or entry; the transportation or storage of merchandise, the filing of a drawback claim, certificates of origin and supporting documentation; and collection or payment of duties, fees or taxes to Customs and Border Protection.7 The record-keeper is required by law to maintain the original records,8 unless alternative storage methods are approved.9 Counsel should be familiar with the laws applicable to types of different records, but as a general rule records should be kept for five years.10
Customs and Border Protection administers several voluntary programs that give importers incentives for taking additional initiative when it comes to compliance. The least onerous program is the voluntary Recordkeeping Compliance Program.11 To be certified, the record-keeper must demonstrate they are dependable, understand the legal requirements of recordkeeping, and have various procedures in place for maintaining records and notifying Customs of any violations of the recordkeeping requirements.12 The advantage of participating in Customs’ Recordkeeping Compliance Program is alternatives to penalties should a demanded record fail to be produced.13
The next two programs require more time and effort on behalf of the importer, but reap greater rewards for those finally certified. The Customs Trade Partnership Against Terrorism (C-TPAT) is a supply-chain security program.14 It entails evaluating and securing every aspect of the client’s supply chain, from the containers goods are shipped in to the recipients of the goods. Unofficially, clearance through the program takes approximately one year, but the benefits include faster and less-costly cargo clearance, as well as reduced insurance costs.15 The final, and most demanding, compliance course is the Importer Self Assessment Program. Only successful members of C-TPAT may apply for the certification which allows importers to “assess their own compliance with Customs laws and regulations.”16 Among the multiple benefits is the exemption of qualified importers from all comprehensive compliance audits by Customs.17
B. Exporter Recordkeeping
If a client is exporting, it is necessary for Counsel to advise them on the import laws of the destination country. A U.S. exporter is a party to a foreign import transaction. Foreign countries have laws governing the importation of goods and services, just as the United States does. The U.S. exporter will be required to maintain documentation on the transaction, just as any U.S. importer would. Most commonly, the exporter is required to maintain documentation supporting country of origin or preferential treatment assertions. Counsel should be aware of whether the client can gain preferential duty treatment through an existing international agreement. When exporting under such an agreement, and claiming preferential treatment, proper supporting documentation must be kept.
For example, to claim preferential duty treatment under NAFTA Article 501, the exporter is required to sign a certificate of origin verifying the goods are North American-made goods.18 In doing so, Article 505 of NAFTA requires the exporter to maintain documentation related to the purchase of, cost of and payment for the good that is exported; the purchase of, cost of, value of, and payment for all materials including indirect materials, used in the production of the good that is exported; and the production of the good in the form in which the good is exported.19
C. Penalties and How to Avoid Them
Customs and Border Protection has the authority to assess penalties and liquidated damages, as well as seize goods for a violation of the law.20 The harshest penalties are assessed for fraud, followed by gross negligence and negligence. If Customs discovers intentional misrepresentations or violations on the importation of goods, the penalty can be up to the domestic value of the merchandise imported.21 Unintentional mistakes by a client, as well as intentional misrepresentations, may be rectified through the doctrine of prior disclosure.22 Prior disclosure provides reduced penalties and, in some instances, no penalties for violators that willingly disclose a defect.23 The disclosure, though, must occur before or without knowledge of a formal investigation by Customs.24 For example, if a client misrepresented the value of an item being imported, even if it was at the request of the exporting party, the best course of action would be to disclose the misrepresentation to Customs before it is discovered. Unfortunately, Counsel is frequently contacted only after their client has a problem.
III. Export Controls and Licensing
For national security reasons, there are a myriad of domestic regulations governing the exportation of certain goods and services. Many of the goods that require an export license are dual-use goods, or goods that can be used for commercial and military purposes. Counsel should be prepared to advise clients on whether they need a license to export and, if so, how to apply for one. The following regulatory entities are good sources for researching export controls and licensing requirements.
The U.S. Department of Defense regulates defense goods and services pursuant to the Arms Export Control Act25 (AECA) and the International Traffic in Arms Regulations26 (ITAR). To determine if a client’s goods or services are subject to AECA or ITAR, Counsel must establish whether the client’s export is covered by the U.S. Munitions List found in ITAR, Part 121.27 Alternatively, if the good or service is difficult to classify, another option is to file a Commodity Jurisdiction Request.28 A Commodity Jurisdiction Request will provide the proper licensing authority for the good or service. To export a good or service that appears on the U.S. Munitions List, the manufacturer or exporter must register with the Directorate of Defense and Trade Controls (DDTC) and apply for a license.29
The United States Department of Commerce, Bureau of Industry and Security oversees the Export Administration Regulations (EARs).30 Though a multitude of EARs exist, a majority of controlled goods or services will fall under one of ten general prohibitions: (1) the export or re-export of controlled items to certain, designated countries; (2) the export or re-export from abroad of foreign-made items incorporating more than an insignificant amount of controlled U.S. content; (3) the export or re-export from abroad of the foreign produced direct product of U.S. technology and software; (4) the export or re-export for prohibited end-uses or to prohibited end-users; (5) the export or re-export to embargoed destinations; (6) violating a denial order; (7) supporting proliferation activities; (8) shipping items that need to be unloaded from a vessel or aircfraft through certain, designated countries; (9) violating any order, terms or conditions; and (10) proceeding with transactions with knowledge that a violation has occurred or is about to occur.31 Again, if Counsel is unsure whether an export license is needed, they should make a Commodity Jurisdiction Request as described above and follow the licensing procedures if necessary.
The Department of Treasury, Office of Foreign Assets Control maintains a lengthy list of countries, businesses and individuals to which exports are prohibited.32 The restricted groups are known to be involved in illicit activities, such as narcotics trafficking, nuclear proliferation or terrorism.33 The restricted groups are sanctioned and, thus, very few licensing exceptions are granted.34
IV. Drafting an International Sales Contract
The international sales contract is the basis for the relationship between the client and the foreign buyer/seller. Whether a client is importing or exporting, an international sales contract will be involved. Barriers, such as language and culture, can create ambiguity surrounding the meaning of contract terms. Counsel needs to anticipate these challenges and draft an international sales contract that will be predictable, dependable and provide solutions.
A. International Conventions and Model Contracts
A variety of conventions on international sales contracts exist to help clarify inconsistencies in contract terms, including the United Nations Convention on Contracts for the International Sale of Goods (CISG),35 the International Chamber of Commerce Model International Sales Contract,36 and the International Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contracts.37 It is important for Counsel to know which international conventions may be relevant and which conventions their client may want to invoke. For example, the CISG will automatically apply to international contracts for certain goods, unless the parties to the transaction specifically exclude its application from the contract.38 While model contract terms can be a good reference point, the client will most likely need a sales contract tailored to their specific terms.
B. Important Contract Terms
It is important for Counsel to advise clients on the various terms to be included in an international sales contract. The three most vital contract provisions to be aware of are (1) when the goods transfer ownership, (2) dispute settlement clauses and (3) f one is involved, the parameters of the distributorship agreement. Counsel can provide an invaluable service to their clients by anticipating problems ahead of time and contracting to avoid them.
The point at which goods transfer ownership is an important term to include in an international sales contract. If the goods are being shipped from Indonesia to Illinois and they are destroyed en route half way between the two countries, which party bares the loss? Delivery terms are included in the contract to address this issue. For example, the term Free On Board (alongside a named port of shipment) or FOB is a commonly used delivery term. It is, by definition, only meant for goods traveling on ships or vessels. If this delivery term is used in a contract that utilizes ground transportation only, how will the term be construed by a judge or arbitrator? To avoid the problems associated with unclear transfer of ownership, Counsel can advise their clients to use the International Chamber of Commerce’s International Commercial Terms (Incoterms).39 The 13 Incoterms provide standard definitions for delivery terms and outline the risks and responsibilities of the buyer and seller. Parties can agree to utilize these terms and remove any ambiguity regarding when the goods transfer ownership.
An international sales contract needs to contain clear provisions on how disputes will be resolved. Inevitably, disputes will arise and having a mutually agreed upon method for resolving matters will save the client time and money. Paul Friedland summarized it best stating, “The contract drafting stage is the right time—and in most instances the only time—for business lawyers to be activist in designing the dispute resolution process in a way that can reduce or eliminate perceived disadvantages of the process and that can enhance its attributes.”40 The dispute settlement provision should define basic contract law issues, such as whether the parties will submit to arbitration or a judicial system, how gaps in the contract will be dealt with, and whether the contract can be changed.41 Similarly, the parties should designate what law will govern the transaction and determine whether the forum will influence the choice of law.42 If arbitration is elected, the parties must address (1) the location of the arbitration, (2) the language of the arbitration and (3) the number of arbitrators and how they will be selected.43
Many businesses use a distributor to sell in a foreign market. Before the client signs a distributorship agreement, though, Counsel should review it with the following questions in mind. First, what is the geographical area the distributor is to cover? Second, what type of customers is the distributor to target? Third, is the agreement exclusive or non-exclusive? Fourth, what is the duration of the agreement and how can the agreement be terminated? Fifth, how will price and quality issues be handled? Sixth, what are the responsibilities and expectations of the distributor? Only if the preceding questions can be answered to the client’s satisfaction should the distributorship agreement be considered.
V. Classification of Goods Under the Harmonized Tariff Schedule
Counsel needs to be familiar with the Harmonized Tariff Schedule (HTS). The HTS is an international numbering system administered by the World Customs Organization and used to track the quantity of imports and exports, as well as to assess duty rates.44 All goods imported or exported are classified under an HTS number. Often times, Counsel will be consulted when the client is having difficulty classifying their goods. The HTS is used by 130 countries around the world and contains an identical numbering structure to the sixth number.45 HTS numbers are comprised of a two digit chapter number, two digit heading number and a two digit subheading number. Beyond the sub-heading and decimal point is a two digit rateline number and a two digit statistical number, but these numbers are used on a national level only.46 For example, if the Harmonized Tariff Schedule of the United States (HTSUS) number for a good is 987654.3210, 987654 would be the same internationally and .3210 would be U.S. specific. The most recent version of the HTSUS is organized in 99 chapters, starting with raw materials and ending with works of art.47
To provide consistency in classifications, six rules of interpretation exist to help in the classification of goods. The rules of interpretation are hierarchical in nature and should be followed in numerical order. First, goods should be classified using the headings, chapters and section notes, not just using the index or chapter titles.48 Second, heading references should be assumed to include incomplete, unfinished or unassembled goods provided they have the essential characteristics of the completed or assembled good.49 For example, an incomplete bicycle without the seat would be classified as a bicycle because it contains the essential characteristics of a finished bicycle. Similarly, the second rule of interpretation provides that combinations or mixtures of substances and materials are to be classified as the individual material or substance that makes up the mixture.50 For example, a mixture of sand and rocks could be classified as sand or rocks.
Third, if the good can be classified under two or more headings under the first two rules, the classification should proceed as follows: (1) headings that provide a more specific description are preferred to headings that provide general descriptions; (2) when two or more headings each refer to part of a mixture or substance, each heading is to be interpreted as being equally specific; and (3) mixtures or sets of goods should be classified as the material or component that gives them their essential character.51
Goods that can be classified under two equally specific headings should be assigned the numerically last heading of those that are equally qualified.52 Fourth, goods that still defy classification should be categorized under the heading of goods to which they are most akin.53 Fifth, certain rules apply to goods that come with cases, such as guns, glasses, instruments and cameras.54 Sixth, the classification of goods should be conducted in accordance with the Rules of Interpretation and with the understanding that only subheadings at the same level are comparable.55
Customs offers Advance Rulings which are binding classifications for imported items that are difficult to classify, as well as for items that are being exported from Mexico or Canada into the United States.56 The advantage of a Customs Advance Ruling is certainty that the classification is correct, but the disadvantage is that Customs may classify the good under an HTS number that carries a higher duty rate. When faced with two possible classifications, Counsel should be an advocate for the classification preferred by their client, assuming both are equally accurate and persuasive. In the request for an Advance Ruling, Counsel should walk Customs through the steps of classification and provide the logic behind each. Essentially, the request should be in the form of a letter asking Customs to confirm the arrived at classification.
VI. Conclusion
Attorneys in general practice have not historically provided international trade counsel. However, with the growing number of enterprises participating in global commerce, business lawyers and in-house counsel will not be the only attorneys faced with international trade questions. Illinois is the fifth largest exporting state in the country and growing. Being able to advise clients with global products and services will not only help to build a stronger practice, but it will also help build a better economy for Illinois.
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* Casey A. Fry, Attorney, Honigman Miller Schwartz and Cohn LLP, and a member of the Illinois Bar since May 2006. She can be reached at cfry@honigman.com.
1. Ill Department of Commerce and Economic Opportunity, Export Development, online at <http://www.ildceo.net/dceo/Bureaus/Trade/Export_Development/> (visited Sept 25, 2007).
2. Office of Trade and Industry Information, Manufacturing and Services, International Trade Administration, U.S. Department of Commerce, 2006 Exports of TOTAL from Illinois, online at <http://tse.export.gov/MapFrameset.aspx?MapPage=SEDMapWorldDisplay.aspx&UniqueURL=x0kimc55ewicwuih1xto1l55-2007-9-14-10-50-4> (visited Sept 14, 2007).
3. Ill Department of Commerce and Economic Opportunity, Export Development, online at <http://www.ildceo.net/dceo/Bureaus/Trade/Export_Development/> (visited Sept 25, 2007).
4. Tariff Act of 1930, 19 USCA §1509(a) (1930 & Supp 1996).
5. Id
6. 19 USCA §1508(a) (Supp 1978).
7. 19 CFR § 163.1(a) (2005 & Supp 2007).
8. The term original refers to “records that are in the condition in which they were made or received by the person responsible for maintaining the records…” 19 CFR §163.1(h).
9. 19 CFR §163.5.
10. 19 CFR §163.4(a).
11. 19 USCA §1509(f)(1).
12. 19 USCA §1509(f)(2).
13. 19 CFR § 163.12.
14. US Customs and Border Security, Security criteria for C-TPAT Importers, Mar 25, 2005, online at <http://www.cbp.gov/xp/cgov/import/commercial_enforcement/ctpat/security_criteria/criteria_importers/> (visited Sept 17, 2007).
15. Abdoulaye Diop and David Hartman, Customs Trade Partnership Against Terrorism Cost/Benefit Survey, Aug 2007, online at <http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/ctpat/ctpat_cost_survey.ctt/ctpat_cost_survey.pdf> (visited Sept 17, 2007).
16. Department of the Treasury, Customs Service, Importer Self Assessment Program, 67 Fed Reg 41298 (1992).
17. Id at 41299-41300.
18. North American Free Trade Agreement, 32 ILM 289, 32 ILM 605 (1993).
19. Id
20. 50 USC §2411(a)(1) (1969 & Supp 1988).
21. 19 USCA §1592(c)(1) (1978).
22. Id at §1592(c)(4).
23. Id
24. Id
25. Arms Export Control Act (AECA), 22 USC § 2778 (1994).
26. 22 CFR §121, Subchapter M (2007).
27. Id
28. 22 CFR §120.4 (2006).
29. 22 CFR §122 (2006).
30. 15 CFR §730.1 (1979).
31. 15 CFR §736.2 (2005).
32. US Department of the Treasury, Office of Foreign Assets Control, online at <http://www.ustreas.gov/offices/
enforcement/ofac/> (visited Sept 24, 2007).
33. Id
34. 15 CFR §740.2 (2007).
35. United Nations Convention on Contracts for the Intl Sale of Goods, 1489 U.N.T.S. 59, S. Treaty Doc. No. 98-9 (1980).
36. Intl Chamber of Commerce, ICC Model International Sale Contract: Manufactured Goods Intended for Resale (ICC 1997).
37. Intl Institute for the Unification of Private Law, UNIDROIT Principles of International Commercial Contracts (UNIDROIT 2004).
38. United Nations Convention on Contracts for the Intl Sale of Goods, 1489 U.N.T.S. 59, S. Treaty Doc. No. 98-9 at art 6 (1980).
39. Intl Chamber of Commerce, Incoterms 2000: ICC Official Rules for the Interpretation of Trade Terms (ICC 2000).
40. Paul D. Friedland, Arbitration Clauses for International Contracts 39 (Juris 2000).
41. Marcel Fontaine and Filip De Ly, Drafting International Contracts: An Analysis of Contract Clauses 105-106 (Transnational 2006).
42. Peter Nygh, Autonomy in International Contracts 92 (Claredon 1999).
43. Friedland, Arbitration Clauses for International Contracts at 49 (cited in note 40).
44. US Intl Trade Commission, Tariff Information Center, online at <http://www.usitc.gov/tata/index.htm> (visited Sept 26, 2007).
45. World Customs Organization, List of countries, territories or customs or economic unions applying the HS, online at <http://www.wcoomd.org/files/1.%20Public%20files/PDFandDocuments/Harmonized%20System/List%20of%20countries%20applying%20HS-Eng_20070629.pdf> (visited Sept 24, 2007).
46. US Intl Trade Commission, Tariff Information Center, online at <http://www.usitc.gov/tata/index.htm> (visited Sept 26, 2007).
47. Harmonized Tariff Schedule, 19 USC §1202 (2007).
48. Id at General Rules of Interpretation 1.
49. Id at 2(a).
50. Id at 2(b).
51. Id at 3(a)-(b).
52. Id at 3(c).
53. Id at 4.
54. Id at 5(a).
55. Id at 6.
56. 19 CFR §177 (2002) and 19 CFR § 181 (2002); see also US Customs and Border Protection, Advance Rulings: A Complete Overview, online at <http://www.cbp.gov/xp/cgov/import/international_agreements/free_trade/nafta/adv_rulings/adv_rulings_review.xml#161IntroductiontoAdvanceRulings> (visited Sept 26, 2007).
Nocula v. UGS Corp, Nos. 06-3386, 06-3447, 2006 WL 3625227
(7th Cir. Mar. 24, 2008)
In a relatively rare case involving the act-of-state doctrine, the Court of Appeals in the Seventh Circuit determined that the district court did not err in applying the act-of-state doctrine to the Plaintiff’s claim for the wrongful loss of his property when Polish police seized and subsequently “lost” his computers after Defendants filed a criminal complaint against his Polish corporation for alleged intellectual property infringement.
I. Facts
Mitch Nocula, a Polish born American citizen living in Illinois, is the sole shareholder of Tooling Systems International Corp. (TSI) and P.Z. Alucon Sp. z.o.o.(Alucon). TSI is an Illinois company in the business of soliciting orders for the custom manufacture of tools and dies. Many of these orders are then sub-contracted out to other companies such as Alucon, a Polish company. To streamline the complicated and time-consuming process of designing tool and dies from prototypes, Nocula began working with Electrode, a Florida corporation owned by Charles Hahs Jr. Electrode had obtained a license to use certain computer-aided design (CAD) software made by UGS Corporation. Using the UGS CAD software to assist in the manufacture of tool and dies, Nocula and Hahs set up a “Virtual Shop” which was then used by the Polish company Alucon.
Although UGS is a Delaware corporation headquartered in Texas, it has a wholly-owned subsidiary in Poland. UGS Poland’s responsibilities include sublicensing CAD software and protecting its intellectual property rights in that country. To enforce its intellectual property rights, UGS Poland filed a criminal complaint in Poland against Alucon and Hahs for illegally using UGS software. As a result of the criminal prosecution, Polish police confiscated all of Alucon’s computers and arrested the president of Alucon and Hahs. Without the computers and its president, Alucon was effectively shut down, resulting in the default of purchase orders for both Alucon and TSI.
Nocula, in an attempt to continue Alucon operations as soon as possible, negotiated an agreement with UGS. The terms of the agreement were that UGS would “do everything possible to terminate the criminal proceedings against Alucon” and Electrode would transfer its UGS software license to Alucon.1 As a licensee, Alucon now had to purchase CAD software and updates from UGS Poland. Although the license was transferred, the criminal prosecution continued.
According to Nocula, not only did UGS fail to fulfill its promise to terminate the prosecution, but UGS Poland charged Alucon for software maintenance and updates that were never provided. Alucon refused to pay for those charges. In response, UGS Poland brought a successful civil suit against Alucon which resulted in the seizure of Alucon’s bank accounts. On the criminal prosecution front, Alucon received a favorable verdict, but the Polish authorities reported that the seized computers and engineering data “mysteriously disappeared.” Without the computers, engineering data and access to its bank accounts, Alucon stopped doing business.
Nocula and TSI filed a diversity lawsuit against UGS and UGS Poland in the Eastern Division of the United States District Court for the Northern District of Illinois. Alleging UGS and UGS Poland intended to harm them by filing and pursuing criminal and civil actions against Alucon, the complaint included claims by Nocula for malicious prosecution, fraudulent inducement, breach of contract, tortious interference, wrongful loss of his property, and harassment. TSI’s claims were based on various forms of tortious interference. UGS and UGS Poland moved dismiss, arguing that Nocula’s and TSI’s claims were barred by the act-of-state doctrine. The district court entered a final order granting the motion to dismiss on August 4, 2006. Nocula and TSI appealed to the Seventh Circuit.
II. Jurisdictional defects
The appellate court concluded it could not address TSI’s claims because the court lacked jurisdiction. The first notice of appeal, although timely, was filed pro se by Mitch Nocula and failed to properly include TSI as an appealing party. Under Illinois law, “[a] corporation cannot appear pro se and one pro se litigant cannot represent another.”2 For these reasons, the court determined TSI failed to give adequate notice of appeal. A second, corrected notice of appeal was filed with the assistance of council, which included TSI as an appellant. However, it was untimely. Because a timely notice of appeal is a jurisdictional requirement, the appellate court was limited to consider only the first notice of appeal where Nocula is the only party.
III. Shareholder standing
The Seventh Circuit determined that most of the claims in Nocula’s complaint, including malicious prosecution, fraudulent inducement, breach of contract, and tortious interference, describe injuries to Alucon, not Nocula personally. So, before turning to Nocula’s personal claims for the lost computers and data and for harassment, the court addressed the issue of shareholder standing to determine if Nocula, as sole shareholder of Alucon, could enforce the corporation’s rights. Although there are exceptions to the general rule that a shareholder cannot sue on behalf of a corporation, none of the exceptions applied in this case and therefore, the court determined Nocula lacked standing to bring those claims.
IV. Nocula’s personal claim for the lost computers and data and the application of the act-of-state doctrine
In the United States, the act-of-state doctrine was first articulated in Underhill v. Hernandez,3 a 1897 decision by the Supreme Court. In Underhill, Chief Justice Fuller stated “Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government done within its own territory.”4 The doctrine is a judicial rule that “generally forbids an American court to question the act of a foreign sovereign that is lawful under that sovereign’s laws.”5 Creating an assumption that the act of state was legal, the doctrine is based on the necessity for abstaining from actions which might frustrate the conduct of foreign relations by the political branches of the government.6 For an act to qualify under the doctrine, the act at issue must be an official or public act conducted within the territory of the foreign sovereign which is currently existing and recognized by the United States.
The court found the act-of-state doctrine to be applicable to Nocula’s personal claim. Nocula’s amended complaint alleged “UGS and UGS Poland wrongfully seized valuable property belonging to Nocula, deprived him of the use and value of it and are now unable to return it or to cause it to be returned to him.”7 Although the court found the complaint was inconsistent as to whether Nocula himself or Alucon owned the property, the court concluded that, regardless of who owned the property, “any judicial inquiry into the wrongful loss of the computers implicates the act-of-state doctrine”8 because the seizure of the computers stemmed from the Polish government’s prosecution of Alucon and therefore qualified as an “act of state” under the doctrine. Even though Nocula’s amended complaint claims it was UGS and UGS Poland that wrongfully seized the computers, the facts, confirmed by Nocula’s brief, show that the Polish police were responsible for the seizure as part of the criminal prosecution. It was the Polish authorities who informed Nocula that his property “mysteriously disappeared” and therefore it is the Polish government who is responsible for the loss, not UGS or UGS Poland. The court concluded that “any personal claim by Nocula seeking to hold UGS liable for the wrongful loss of the computers would necessarily call for an inquiry into the acts of a foreign sovereign and is barred by the act-of-state doctrine.”9
V. Nocula’s Harassment Claim
The last claim the court addressed was Nocula’s allegation that UGS harassed him with threats of prosecution for trespass and other offenses. The court dismissed this claim because Illinois law does not recognize a tort for harassment. Even though harassment can be part of a claim for intentional infliction of emotional distress (IIED), solely alleging harassment is insufficient under notice pleading to raise an IIED claim.
VI. Possible Remedy in Poland?
According to the district court, the issue of whether the seizure of the computers by the Polish police was improper should have been litigated in Poland. While the Polish Civil Code is beyond the scope of this article, the author has consulted a Polish attorney who has confirmed that, under Polish law, the State can be sued for damages caused by an employee of the State for any illegal acts or violations of provisions of law. In this regard, Article 417 § 1 of the Polish Civil Code provides that “ the State Treasury is liable for damages caused by an employee of the State in carrying out a delegated function.”10 Therefore, Nocula may be able to bring suit in Polish court where the act-of-state doctrine would not apply. However, whether Nocula’s possible option to litigate in Poland is barred by a statute of limitations or some other defense is another question.
__________
Tim White is a second year law student at Southern Illinois University School of Law. He currently serves as a research assistant to Professor Cindy Buys. He is interested in practicing in the area of international business or estate planning. He may be contacted at timw@siu.edu.
1. Nocula v. UGS Corp, Nos. 06-3386, 06-3447, 2006 WL 3625227, at *2 (7th Cir. Mar. 24, 2008).
2. Id. at *4.
3. Underhill v. Hernandez, 168 U.S. 250 (1897).
4. Id. at 252.
5. F. & H.R. Farman-Farmaian Consulting Eng’rs Firm v. Harza Eng’g Co., 882 F.2d 281, 283 (7th Cir. 1989).
6. Nocula, 2006 WL 3625227, at *7.
7. Id.
8. Id.
9. Id.
10. Polish Civil Code art. 417 § 1.
Last month, the United States Supreme Court once again ruled that the state can kill people as punishment for the commission of certain crimes. In Baze v. Rees, 128 S. Ct. 1520 (April 16, 2008), the Court considered a challenge to the method that Kentucky employed for killing certain convicted criminals through the use of lethal injections. The majority ruled that the challenged lethal injection protocol did not violate the Eighth Amendment’s prohibition on “cruel and unusual punishments.” In concurring and dissenting opinions, however, several of the Justices underscored the importance of monitoring evolving standards of decency in order to determine whether forms of punishment continue to pass constitutional muster. As Justice Stevens noted “our society has moved away from public and painful retribution towards ever more humane forms of punishment[,]” with the result that “[s]tate-sanctioned killing is therefore become more and more anachronistic.” Id. at 1548.
This observation is borne out by the experience of Illinois. Almost a decade has passed since former Governor George Ryan ordered a moratorium on executions in Illinois. The moratorium was predicated on flaws in the administration of justice that called into question whether innocent persons were being condemned to die and whether sufficient procedural safeguards were in place to ensure the fundamental fairness of proceedings leading to imposition of the death penalty.
Currently being debated is whether the death penalty in Illinois should simply be abolished all together. If Illinois ultimately decides to follow this route, it would be following in the footsteps of New Jersey, which became the first state to end the death penalty in the modern era when Governor Jon Corzine signed legislation to this effect in December 2007. Last month Governor Corzine summarized the rationale that led him to support the bill offered for his signature:
There were many reasons to ban the death penalty in New Jersey. It is difficult, if not impossible, to devise a humane technique of execution that is not cruel and unusual, and to develop a foolproof system that precludes the possibility of executing the innocent. New Jersey spent more than a quarter of a billion dollars to maintain its capital punishment system since 1982, even though it had not carried out a single execution for more than four decades, demonstrating little collective will or appetite to enforce this law.
But for me, the question was more fundamental. State-endorsed violence begets violence and undermines our commitment to the sanctity of life. We in New Jersey are proud to be the first state to prohibit the death penalty since it was permitted by the U.S. Supreme Court in 1976, and we are proud to serve as leaders on this profound issue of conscience.
Gov. Corzine Speaks on Elimination of Death Penalty in New Jersey, US State News (April 14, 2008).
If it adopts an anti-death penalty position, Illinois would also be following a path already well-trod by most other countries in the world. Data compiled by Amnesty International indicates that, as of 2008, “[m]ore than half the countries in the world have now abolished the death penalty in law or practice.” See Death Penalty: Abolitionist and Retentionist Countries, <http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries> (last visited April 28, 2008). These include all member states of the European Union, which has unequivocally expressed its opposition to the death penalty “in all cases and has consistently espoused its universal abolition, working towards this goal.” See EU Policy & Action on the Death Penalty, <http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm> (last visited April 28, 2008). Opposition to the death penalty is a requirement for all countries seeking to accede to the European Union and all member states are signatories to Protocol No. 13 to the European Convention on Human Rights Concerning the Abolition of the Death Penalty in All Circumstances (available at <http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=187&CM=10&DF=05/04/04&CL=ENG>) (last visited April 28, 2008). The EU’s position “is rooted in its belief in the inherent dignity of all human beings and the inviolability of the human person regardless of the crime committed.” <http://ec.europa.eu/external_relations/human_rights/adp/index.htm> (last visited April 28, 2008). These twin concepts are viewed as being so fundamental that they have been enshrined in the first two articles of the Charter of Fundamental Rights of the European Union.
Internationally, other nations are following the example of the European Union member states. One example of this growing consensus is the Second Optional Protocol to the International Covenant on Civil and Political Rights, which expressly aims for the abolition of the death penalty (available at <http://www.unhchr.ch/html/menu3/b/a_opt2.htm>). Currently there are 64 parties to the Protocol, representing countries as diverse as Albania and Azerbaijan, Bulgaria and Belgium, Canada and Croatia, Denmark and Djibouti, Ecuador and Estonia, Liberia and Liechtenstein, Serbia and the Seychelles, and the United Kingdom and Uruguay. See Death Penalty: Ratification of International Treaties, <http://www.amnesty.org/en/death-penalty/ratification-of-international-treaties> (last visited April 28, 2008). Regionally, the General Assembly of the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty in 1990. Brazil, Costa Rica, Ecuador, Mexico, Nicaragua, Panama, Paraguay, Uruguay, and Venezuela are state parties to the Protocol, with Argentina and Chile as signatories who have not yet ratified it. Id.
As highlighted by the majority in Roper v. Simmons, 125 S. Ct. 1183 (2005), as well as by Justice O’Connor in her dissenting opinion, foreign and international law are relevant in assessing evolving standards of decency in the context of Eighth Amendment cases. In Roper, the Court held that the Constitution prohibited the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. It did so after noting the “stark reality that the United States [was] the only country in the world that continue[d] to give official sanction to the juvenile death penalty.” Id. at 1198.
It is clear that in abolishing the death penalty, New Jersey may have been a pioneer as far as our own country is concerned, but it is hardly alone. If Illinois follows suit, it will join a consistent number of countries in the international community. Moreover, Illinois would join a sizeable number of states that have never confronted the question of whether the death penalty should be repealed because they chose not to enact it after the Supreme Court ruled in 1976 that it was constitutionally permissible to do so. These include Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, New York, Rhode Island, Vermont, West Virginia, and Wisconsin. See Death Penalty Policy By State, <http://www.deathpenaltyinfo.org/article.php?did=121&scid=11> (last visited April 28, 2008).
[The Section applauds the ISBA for its willingness to examine the issue of the death penalty and encourages it to adopt a position that is in harmony with international law and the example of the majority of civilized countries that have sought to abolish state-execution of individuals. Regardless of whether the ISBA decides to endorse this position, the Section is encouraged by the ISBA’s willingness to address the issue of whether these executions are consonant with fundamental fairness. As noted by former ABA President John J. Curtin, Jr., “[a] system that will take life must first give justice.” The ABA’s decision to establish the Death Penalty Moratorium Implementation Project with the stated objective of “encourag[ing] other bar associations to press for moratoriums in their jurisdictions and to encourage state government leaders to establish moratoriums and undertake detailed examinations of capital punishment laws and processes in their jurisdictions,” <http://www.abanet.org/moratorium/home.html>, is a prime example of what lawyers and bar associations should be trying to achieve and we applaud the ISBA for engaging in and encouraging this conversation.]
The National Immigrant Justice Center periodically publishes a list of cases for which pro bono attorneys are needed to represent asylum seekers and other immigrants in need of protection. The recent list from them on cases that are needed include:
Asylum Master Calendar Hearings
G. is a 21-year-old woman from Cameroon. Her next Master Calendar hearing is September 5, 2008 G. speaks English and French and lives in Highland Park, Illinois. (159102).
G. went to University in Yaoundé and studied Economic Science and German. In 2004, she joined the Cameroon Democratic Union (CDU). Her participation included recruiting others and speaking out about marginalized people, HIV/AIDS issues, and student rights. When the President retained power in 2004 after fraudulent elections, G. participated in CDU protests. G. and other activists were arrested, jailed and beaten. After one week, G.’s parents bribed the guards to release her, and G. signed a statement renouncing her political activities. Because G. converted to Christianity, her father disowned her and refused to allow her to live at home. G. lived with a friend who was still very involved in CDU. One day, while the friend participated in a protest, G. stayed at home. Government agents came to the house, mistook G. for her friend, and accused her of acting against the government. When the agents jailed her, they discovered she had been previously arrested for CDU participation. She was held for one week, until a member of her church helped secure her release in May 2006. G. fled to the United States, and entered in September 2006. Police have repeatedly visited her parents’ and friend’s houses looking for G. since her departure.
VAWA Petitions for Domestic Violence Survivors
Pursuant to the Violence Against Women Act (VAWA), U.S. immigration law offers protection to immigrant spouses and children who have suffered violence and psychological abuse at the hands of a U.S. citizen or a lawful permanent resident abuser. The VAWA self-petition is similar to an affirmative asylum application, except the applicant does not have to appear for an interview after filing the application. Many VAWA applicants will also be applying for legal permanent residency simultaneous with the self-petition. For most of these cases, there is no specific filing deadline, but given the vulnerable situation these individuals face, NIJC encourages pro bono attorneys to file the self-petitions as quickly as possible.
VAWA Master Calendar Hearing
M. is a 51-year-old woman from Mexico. M. is in removal proceedings and her next Master Calendar hearing is on July 7, 2008, at the Chicago Immigration Court. M. is eligible to apply for VAWA Cancellation of Removal before the Immigration Judge. She speaks Spanish and lives in Chicago, Illinois. (159392).
M. entered the United States on February 14, 1997 with a tourist visa. She has been living with her abusive husband for almost 11 years. M. was traveling to Detroit with her husband when she was detained by Immigration and Customs Enforcement (ICE). M. was released from detention and placed in removal proceedings in May 2005. M. has been severely abused by her husband. She has called the police, pressed charges and obtained orders of protections against her husband for physical abuse but she has also repeatedly given him opportunities to change and work to fix their marriage. M.’s husband has continued his aggressive behavior toward M. so, about a month ago, M. decided to leave him. M. is eligible to apply for VAWA Cancellation of Removal defensively in removal proceedings.
VAWA Self-Petitions
A. is a 31-year-old woman from Mexico. She is eligible to file a VAWA self-petition and applications for adjustment of status and employment authorization. A. speaks Spanish and lives in Chicago, Illinois. (159534).
A. entered the United States in 2002 without inspection. She married her U.S. citizen husband on November 9, 2007, and lived with him prior to their marriage. The couple have two United States citizen children together. A. and her husband met in Mexico, and he sent her money to come to the United States. In March 2008, A. called the police because her husband punched her in the face and verbally abused her. A police officer responded to the call and arrested A.’s husband. A.’s husband has a history of abusing her and also threatens A. with deportation.
U-Visa
Pursuant to the Victims of Trafficking and Violence Prevention Act (VTVPA), U.S. immigration law also offers protection to victims of serious crime who have gathered the courage to come forward, report the crime, and assist in its investigation or prosecution. U visas are available to non-citizens who suffer substantial physical or mental abuse resulting from a wide-range of criminal activity, including domestic abuse and sexual assault. Immigrants granted the U-visa are eventually eligible to apply for permanent residence. Like VAWA petitions, the applicant does not have to appear for an interview after filing the application. For most of these cases, there is no specific filing deadline, but given the vulnerable situation these individuals face, NIJC encourages pro bono attorneys to file the applications as quickly as possible.
M. is a 33-year-old woman from Mexico. She is eligible to apply for a U-Visa and employment authorization. M. will need to file a waiver of inadmissibility for her false claim to U.S. citizenship. M. speaks Spanish and lives in Chicago, Illinois. (155046).
M. entered the United States in 1994 by making a false claim to United States citizenship. M. is a victim of domestic battery at the hands of her former partner who is the father of her four United States citizen children. M. has been separated from her partner for about two years. She has obtained multiple orders of protection; some are against him and others are against his girlfriend, who assaulted M. on one occasion. M.’s husband has been arrested about six different times and has been convicted of domestic battery. Please note that M. has obtained a signed certification (Supplement B) from a law enforcement official certifying that M. has cooperated in the prosecution of a crime. M. needs to file her U-Visa application before July 2008 to stay within six months of the signature date of the signed certification of January 2008.
Q. is a 27-year-old male from China. He is eligible to apply for a U-Visa and employment authorization. Q. needs extra advocacy in obtaining a signed certification (Supplement B) from a law enforcement official certifying that Q. has cooperated in the prosecution of a crime. Q. speaks Mandarin Chinese and lives in Chicago, Illinois. (159168).
Q. was paroled into the United States for being the victim of unlawful restraint and battery by his smugglers. Q.’s family hired smugglers to bring Q. from China to the United States in October 2001.
After smuggling him into the U.S., Q. was held hostage in a small apartment in New York where he was severely battered. The smugglers threatened to kill Q. if the family did not pay their fees. Q.’s sister, who flew from Illinois to New York, was able to contact an F.B.I agent. Q. and his sister cooperated with the Department of State victim witness assistance program to charge and prosecute the smugglers for unlawful restraint and battery.
M. is a 28-year-old female from Mexico. She is eligible to apply for a U-Visa and employment authorization. In addition, M.’s two minor children can be included as derivatives. M. and her two children will need to file waivers of inadmissibility for their entries without inspection. M. needs extra advocacy in obtaining a signed certification (Supplement B) from a law enforcement official certifying that M. has cooperated in the prosecution of a crime. M. speaks Spanish and lives in Chicago, Illinois. (159112) (159794) (159795).
M. entered the United States in March 2005 without inspection. She was severely battered and sexually abused by her husband. She left him in September 2006 and took her children with her. After she left him, he continued to harass and stalk her. That same year, M.’s husband broke into M.’s house and raped her. M. reported the crime to the police and filed charges. M.’s husband is currently in jail for charges pertaining to aggravated sexual assault and domestic battery.
E. is a 41-year-old female from Mexico. She is eligible to apply for a U-Visa and employment authorization. E. may need to file a waiver of inadmissibility for misrepresentation at a port of entry. E. speaks Spanish and lives in Chicago, Illinois. (159203).
E. last entered the United States in 1991 with inspection but she was not eligible to enter lawfully. She is a victim of domestic violence at the hands of her husband. She has called the police on several occasions. The last time was in 1998 when her husband beat her severely. She called the police department in Cicero, filed a report, pressed charges and obtained an order of protection. Please note that E. has obtained a signed certification (Supplement B) signed by law enforcement official certifying that M. has cooperated with the prosecution of a crime. E. needs to file her U-Visa application before September 2008, to stay within six months of the signed certification date of March 2008.
For more information to volunteer you may contact The National Immigrant Justice Center, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604, (312) 660-1370:
Mary M. McCarthy, Director, mmcarthy@heartlandalliance.org
Lisa Koop, Managing Attorney, lkoop@heartlandalliance.org
Jefferson Mok, Asylum and Pro Bono Project Coordinator, jmok@heartlandalliance.org