Smart folks here. Those terminals? That’s who you talk to when you get home. CBP photo.

I’m off to Montreal this week– a much-anticipated trip– for meetings and a conference, then on to Oxford next week to give a CLE lecture.  When I come back, I anticipate a bit of a smoother return because of a Customs & Border Protection program called Global Entry.  The scheme is designed primarily for frequent travelers, but even for people who venture abroad only once in a while, it’s awfully handy, and if nothing else, pays for itself in time saved.

Costs:

  • Twenty minutes to fill out the form.  Have your passport and driver’s license handy.
  • $100 for a five-year clearance.  Credit cards accepted (preferred?).
  • A trip to the airport (at least, the nearest airport with international connections) for an interview and fingerprint scan.  Yes, they’ll validate your parking.  Yes, CBP’s officers are regular people just like you and me.  It’s painless.

Benefits:

  • TSA Pre-Check is automatically included.  Keep your shoes on, keep your belt on, leave your laptop and liquids in your carry-on.  Did I mention that TSA Pre-Check is already $85?
  • No line at the port of re-entry into the United States (see the picture above).  You simply scan your passport and prints, enter your declarations on the touchscreen, and doors magically open for you.  This can save a half-hour’s wait (if not more) as the CBP officers process everybody else on your crowded flight.  Now, to be sure, U.S. citizens usually have a shorter wait than foreign visitors anyway, but your time is still worth it.
  • Partner programs for Canada and Mexico.
  • Easier access to China and the Far East.  As my interviewing officer explained, the People’s Republic of China and a few other east Asian nations have a comparable program, available to U.S. citizens with Global Entry clearance, that pre-clears known travelers for immigration and customs.  Apparently, the lines in Beijing are nightmarish, so if you plan to go to  the PRC more than once, it’s an even greater time-saver.
  • Easier renewals.  Much like your passport, renewing the thing is far easier than getting it in the first place.  Yes, you have repeat costs, but at twenty bucks a year, it’s a slam dunk.
These folks didn’t get the memo. I’ve waited in that line.  CBP photo.

Drawbacks:

  • Nobody from the United States government says “welcome home” to you.  Seriously– that’s awfully nice to hear after a lengthy sojourn abroad.  Here, it’s a touchscreen.  You literally get more love from your laptop.
  • That about covers it.

Even if you only fly abroad once every few years, get on this program instead of Pre-Check.  In any industry that views time as a valuable commodity (I’m talking to you, lawyers), this thing pays for itself in a single trip anywhere– not just abroad.  Road warriors, take note– if you spend a couple of hours of your life now, you’ll save several later on.  That will make you far more willing to go abroad and look your clients in the eye.

Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application. "i_am_jim" via Wikimedia Commons.
Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application.  Image: “i_am_jim” via Wikimedia Commons.

“So, Aaron, what kind of law do you handle?” ”

Anything in litigation that crosses a border.

“Oh.  Immigration?” [After a few dozen times hearing that, I revised my answer.]

Procedural issues in litigation that cross borders.

They still ask if that means immigration, but no.  No, it doesn’t.  At least not with regard to the Hague Service Convention.

However, an interesting development out of Texas last week… a naturalized U.S. citizen was denaturalized (had his citizenship revoked) because he’d lied on his application some twenty years ago.  From the U.S. Immigration & Customs Enforcement press release:

Jose Arizmendi, 54, a native of Mexico, pleaded guilty in April 1996 to aggravated sexual assault of a child in the District Court of Harris County, Texas. When Arizmendi applied for naturalized U.S. citizenship later that month — and again when he was interviewed in connection with his application in October 1996 — he answered “no” when asked if he had “ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance excluding traffic regulations.” Relying on this answer, the U.S. government granted his naturalization application and Arizmendi became a U.S. citizen later that year.

Of course, one has to wonder why he wasn’t incarcerated on the aggravated sexual assault of a child plea– and one has to wonder why the Immigration & Naturalization Service (ICE’s predecessor) didn’t at least run this guy’s prints before giving him the right to vote… but I digress.

As it turns out, when the U.S. Attorney initiated denaturalization proceedings against him, he was serving a hefty prison sentence in his native land, so the Department of Justice had to serve him under the Hague Service Convention.*  Of course, Mexico can be a tough nut to crack— even under the best of circumstances, the procedure takes 9 months or more to receive a proof of service from the Mexican Central Authority.  But he wasn’t going anywhere, so a delay really didn’t grind the wheels of justice to a halt.  Regular plaintiffs don’t enjoy the same ability to wait it out, but they have no choice.

 


* I wonder if the Hague Service Convention is truly applicable here.  By its own terms, the treaty applies to civil and commercial matters only.  Egypt, for instance, at one time refused to serve divorce papers on the grounds that it considered family law outside the scope of “civil”.  Many authorities in Germany reject requests to serve tort complaints from U.S. jurisdictions with split recovery statutes; they consider such actions at least partially punitive/retributive in nature, so quasi-criminal rather than civil.  It seems to me that a denaturalization action is quasi-criminal, quasi-administrative… not wholly civil.  Still, Mr. Arizmendi is no longer a U.S. citizen no matter how you slice it.

 

I hate to be the guy who breaks this to you, I said to the client, but there is no chance that you’ll be able to get that notice of hearing served in time.  Not properly, anyway.

Poor fellow was a first-year associate, trying to get a notice of a guardianship hearing served on an absent father.  The judge insisted that he have the guy served personally.  By Tuesday.  “So, please get this done for us.”

The problem:  absent father is in the People’s Republic of China.

Sorry, I said.  It can’t be doneThe Hague Service Convention has to be observed, and when you’re serving in China, that means a request to the government in Beijing (same as in Mexico or Germany or Switzerland or India).  That’ll take months to get through—not hours or days like we’ve come to expect in America.

“Okay,” he said.  “Let me go talk to the partner running the case.”

The story took an unexpected turn when he called me a half hour later to say “the partner told me that you just need to hire a Chinese courier to do it & then send an affidavit.  So can you get it done?”

Oh, where to begin?

For starters, and setting aside the mandatory nature of the Hague Service Convention, China is not a common law country—Hong Kong S.A.R. excepted—and they prohibit service by anybody but judicial officers (this is a characteristic of civil law jurisdictions).  If a courier tried to do what the partner wanted, the courier would be subject to criminal penalties under Chinese law.  You can’t just usurp the government’s authority and walk away clean in such a situation.

If this thing is going to be properly served, we have to file a Hague Request.

The junior associate’s response:  “No, you don’t.  The partner says that because the father isn’t a party to the case, we can serve him ‘normally.’  The Hague Service Convention only applies to process.”

Process?  Just have the partner call me, wouldja?  He didn’t.  And he probably won’t, which is too bad for his client.  And his malpractice carrier.

Normally?!  Does he mean that in China they don’t do things normally?

Folks, this is a massive misconstruction of the Convention, and one I had heard of before, but hadn’t seen actually in play.  To be sure, there is caselaw out there that distinguishes between process and other notification in a Hague context, and those cases hold that Hague strictures don’t apply unless process is being served.*  But those holdings are wrong– or at least arguable– and you don’t want to be the fellow on the losing end when they get overturned.  That’s expensive and unnecessary.  My reasoning…

The word “process” doesn’t even appear in the text (seriously, click here and run a word search on the page).  It doesn’t delve into jurisdictional questions, which is a very big deal if something deals only with process.  In fact, the only mention of jurisdiction in the entire treaty is the flat denial of jurisdiction as a basis for a country’s refusal to serve.

The name of the treaty is the Convention on the Service Abroad of Judicial and Extrajudicial Documents, not the Convention on Service of Process.  And it applies to just about any sort of court-related document you can think of, if that document must be served.**

  • Summons?  Slam dunk.  (“Citation” to our colleagues in the Lone Star State.)
  • Complaint or Petition?   Yep.  They go right along with the summons.
  • Notice of Hearing?  Yeah, buddy.  It’s a judicial document Even if it doesn’t compel someone to show up in court or assert jurisdiction over him, it must still be conveyed to a recipient in a formal, demonstrable manner, in full observance of due process.  The fact that the recipient isn’t a defendant or respondent is immaterial.

Bottom line, if the thing has to be served, then you have to observe Hague Service Convention procedures wherever the Convention applies.

Says who?  Says this lady:

Source: National Archives.
Source: National Archives.

And eight of her friends.


* It isn’t completely unreasonable to conclude what my prospective client did.  Ted Folkman points to dicta from the Schlunk decision as a basis for arguing that the HSC does only apply to process.  He’s a whole lot more diplomatic than I am– although he disagrees with the Hyundai decision he described back in 2012 and in his excellent follow-up column last month (for an even more thorough discussion, see Ted’s chapter in the latest ABA deskbook, International Aspects of U.S. Litigation).  Ted calls it a difficult question, but I see it as pretty straightforward, and Ted’s been at it a whole lot longer than I have.  Still, the Hyundai court bungled it.  You don’t start parsing legislative history and its parallel language to determine intent when there’s no ambiguity in the very text you’re working in.  The HSC is unambiguous– it applies to service.  Rule 4 requires service.  Rule 5 requires service.  If the document has to be transmitted to another Hague member country for service, the Convention applies.  Full stop.

** One huge exception to “just about any sort of court-related document”:  subpoenas.  You can’t serve them abroad.  Full stop.  For my reasoning on that issue, see here.

 

 

 

A couple of years ago, I ran into a law school classmate at a happy hour hosted by our local bar association.  “Hey, you handle service of process in other countries, right?”  Yeah, I answered.  Quite a bit of Hague Service Convention stuff.

“Great.  Lemme ask you a question…”

He was handling a divorce case, representing the wife.  They had two kids and a mortgage, both had decent jobs, and both worked hard to make a better life.  Your typical Midwestern existence, except for one thing: the husband was Mexican, and had “overstayed his welcome,” as it were.  For whatever reason, he’d returned to Mexico, and resumed residence with his parents.  He kept in touch with his wife and kids, and sent a few pesos north now & then as he was able, all while trying to get his green card the “right way” (by “standing” in the mythical line at the Embassy).

One day, the wife decided she needed to move on with her life.  Not an unreasonable decision given the state of U.S. immigration law, though it certainly raises a question about her level of commitment in the first place.  She hired my classmate, a pretty top flight lawyer, to file the petition.

His question to me, as we sipped our Boulevard Pale Ale:  “the judge told me if I didn’t get him served within a week, he was going to dismiss the case.  When I told him it would take longer because the guy’s in Mexico, he said he didn’t care if he was on the moon, just get it done.  So I mailed everything to him.  That’s okay, right?

Now, being Norwegian, I’ve always felt a sort of fraternal connection to Edvard Munch (I’m more a fan of his French contemporaries, but I digress).  Naturally, my reaction was this:

munch_edward_3
That bad.

No!  It’s very much not okay!  If you don’t march down to the court tomorrow and file a notice that you need sufficient time to do it properly, the following will happen, in order:

  • The defendant fails to answer the petition.
  • The judge gladly hands you a default judgment, granting everything you’ve demanded in payment, just to clear his docket.
  • Woo hoo!  You have a very happy client, who now owns her house in fee simple absolute, who now has sole legal and physical custody of the kids, and who can now marry that handsome fellow she met in the frozen foods section at Piggly Wiggly.
  • She tells all of her friends at the PTA that you’re the greatest attorney in town, and they will all flock to you because their husbands are ne’er-do-wells, and they want to find a handsome fellow at Piggly Wiggly, too.

But here comes the nightmare…

  • Five years on, the Mexican (ex-)husband gets a letter from the U.S. Embassy in Mexico City.  Congratulations, sir.  Given that you are a hardworking father of two U.S. citizen children and have waited patiently these many years, you may now enter the United States and freely participate in our economy.
  • First thing he does when he gets back?  He goes home, to find that his kids address Piggly-Wiggly-Guy as “Dad”.
  • He hires the nastiest lawyer he can find to re-open the action that took away his house and his kids.
  • Naturally, because he was served in Mexico in a manner contrary to that country’s declarations to the Hague Service Convention, he is granted a new hearing.*
  • In which he prevails, forcing Mr. and Mrs. Piggly-Wiggly-Guy to cough up half the value of the house they’ve been happily living in, thinking she owns it in fee simple absolute.
  • And in which Dad is granted 50/50 custody** of the children and thus awarded child support because Mom makes a whole bunch more money than Dad does.
  • Which facts make Mr. and Mrs. Piggly-Wiggly-Guy ponder how to best end your career as a lawyer.
  • Their new lawyer calls me for an opinion letter to include in his petition for damages.  I decline, of course, but I can’t save you.
  • You call your malpractice carrier, who promises to settle the claim, and then drops you like a hot rock.
  • The PTA moms stop calling.
  • Sallie Mae does not.

Okay, perhaps there’s a wee bit o’ hyperbole there.  But the real takeaway?  I don’t care if the judge orders you to serve somebody by mail in a Hague country that objects to it… DO. NOT. DO IT.

Politely tell the judge he’s wrong, call in some help, and do it right.

 


* Why does the Hague Service Convention matter?  Because Sandra Day O’Connor said so.

** We have a new 50/50 presumption in Missouri, which was not in effect on the date of the ill-fated scream I emitted at the bar association happy hour.  [For crying out loud, yes, this is a fabricated story.  In part.  The question was for real, and the answer is substantially a reflection of my real response.  The background… all made up.]

[Originally published at vikinglaw.us]

Immigration attorneys seeking Special Immigrant Juvenile (SIJ) status for their clients must seek an order of guardianship in state court before an Immigration Court will confer SIJ classification.   In order to establish that guardianship, they (or co-counsel who practices family law) must put the child’s biological parent(s) on notice of the proceedings—and that implicates a host of procedural barriers.

In many states, parental rights are constitutional in nature—the best interests of the child take a back seat— and that doctrine isn’t going away.  Even where the best interests of the child are paramount, notice must still be served in order to vindicate an absent parent’s constitutional rights.

The constitutional standard applicable to the manner of service of process comes from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): notice by a “means reasonably calculated… to apprise” the defendant (respondent) of the action and to give him/her an opportunity to oppose it.

Where that defendant is outside the United States, the law of the foreign jurisdiction must also be respected.  In many countries, even in Latin America, that may implicate the Hague Service Convention—which is mandatory doctrine under Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 699 (1988).

Application of the treaty complicates matters in serving guardianship notices, but even where it is not applicable, service may be impossible.  That does not, however, allow a court to simply deem a respondent served.  It also does not mean that mail or a fax or email or Facebook Messenger are appropriate.

Mexico is signatory to the HSC, and it has declared its opposition to all of the alternative methods of service listed in Article 10.  This leaves but one legally appropriate method of service: a formal request to the Ministry of Foreign Affairs in Mexico City.  This process takes several months—in many cases up to a year (no, that is not a typo).

In other Latin American countries, most notably Guatemala, Honduras, and El Salvador, service is all but impossible without extraordinary cost and risk.  But, again, that does not relieve counsel of the duty to take reasonable steps to serve.

And therein lies the key idea: reasonable steps.

Once we have accomplished a few steps, alternatives can be suggested to the court hearing the guardianship request:

  • A diligent attempt to ascertain the respondent’s location. If he’s in a village in the mountains with no address, we simply cannot reach him by traditional means.
  • If you have an address, try to serve. This is especially true in Mexico, where service is frequently effected, but usually after a lengthy wait.
  • If no address is available, there are other options, but every case is—like every jurisdiction—different.

In all cases, honest attempts at service must be initiated, lest the entire quest for SIJ status unravel.  Above all else… do it the right way.

 

[In a later post… we will discuss the Hague Adoption Convention, the State Department’s erroneous interpretation of it, and the way in which SIJ status overcomes the error.]