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GaramChai.com >> Book >> Section 3
Basics
of legal system in the US for Immigrants
Indians
moving to the US get the first glimpse of law and legal system
much before they set foot on American soil. The immigration
and visa paperwork is perhaps the first brush with American
legal system for most Indians. Even when employers sponsor
the visa applications, individuals need to go to the local
embassy or consulate, present the paperwork and get a visa
stamp on the passport. After arriving in the US, passing through
immigration, acquiring the local drivers license and social
security or tax id’s, most Indians settle into a normal life
with very little brush with the law.
Professionals,
even those of us working abroad, are content to live our lives
hoping we don’t encounter any skirmish with the law or law
enforcement officials. However, Indians who live abroad have
a special responsibility to understand and follow at least
the basics of law that governs the land. This is because of
a basic doctrine of law that says `Ignorantia juris non
excusat’, literally translating to the fact that ignorance
of the law is not an excuse. This is a tenet of law that governs
the legal system in most modern nations. What this means is
that residents need to follow the law of the land and act
in a way that shows an understanding of the social and legal
system in the US.
International
residents and foreigners in the US with a valid visa have
the same rights and responsibilities as American citizen.
If an individual is arrested and taken into custody, the police
must inform him of his rights and make certain that he understands
these rights. The individual may refuse to answer any questions
without legal counsel present and has every right to be represented
by a lawyer, and if he cannot afford to hire an attorney,
the court will appoint one. The crux of this is the fact that
one cannot be convicted of a crime without a proper trial.
As a foreigner, individuals do not have special rights too,
for example, the Indian embassy or consulate may only play
a limited role if an Indian is convicted in a criminal case.
The right
against unlawful persecution or detention does not apply to
foreigners who are in the country illegally or those detained
by immigration officials on immigration charges. After September
11th, the government is working on special steps
to ensure a crack-down on illegal aliens and those who overstay
their visas. This is becoming significant because the perpetrators
of the crime were foreigners in the US who had overstayed
their visa.
There
are a few common “errors of judgment” one must avoid at all
costs. Drunk-driving, shoplifting, use of drugs and controlled
substances are serious enough to get one deported. Physical
violence and altercation in public places should be avoided
at all costs. There have been a number of instances when INS
has refused green cards to people with even “simple” criminal
records like shoplifting. Criminal acts are subject to severe
punishment, and many states in the US still advocate death
sentences.
Most Indians
in the US generally interact with their lawyers for one main
reason – immigration and H1 paperwork processing. Because
of the complexity of laws governing H1-B and immigration most
of us seek the assistance of immigration lawyers. A good immigration
attorney can be invaluable in one’s quest for a green card
or H1 sponsorship. Even employers prefer to contract out the
immigration related tasks to specialized attorneys who work
with in-house consuls. This fact has not gone unnoticed by
the local Indian publications, newspapers, magazines, Web
portals and chat-boards. Indian newspapers in the US devote
at least a page for classifieds of immigration lawyers and
attorneys.
Police
In America,
police is responsible for protecting the public, criminal
investigation, apprehension of criminals, and enforcing motor
vehicle traffic laws. In addition, they also enforce parking
regulations. Local police are expected to respond to any reported
disturbance of the peace, suspected crime or suspicious activity.
Police are generally public employees and are expected to
conduct themselves in a manner that reflects this relationship.
American police are generally liked and respected, not feared,
for their authority. There are precise legal procedures that
direct police conduct in order to protect the civil rights
of both law-abiding persons and suspected criminals.
The two
police forces that most people encounter are the local police
and the state police. Local police are defined by their jurisdiction
- city, township or county - and are responsible for law enforcement
within a well-defined area. Although their primary activities
are the regulation of traffic, parking, and maintaining order,
they investigate serious crimes as well. NYPD – New York Police
Department is perhaps one of the most glamorous police forces
that received international acclaim in the handling the aftermath
of the NYC bombing. The most serious class of crime under
American law is called a "felony"; the less serious
is a "misdemeanor". State police forces are known
by various names - e.g., the Colorado State Patrol, the Texas
Rangers, etc. State police forces are responsible for patrolling
state roads and Federal highways within the state. In most
states, they are also responsible for the protection of government
property and providing security for officials.
There
are a number of other federal (central) police bodies that
one needs to be aware of, although the only ones most of us
will deal with are the customs and immigration officials.
The Federal Bureau of Investigation (FBI) is responsible for
investigation of interstate crime, internal espionage, and
terrorism, as well as the maintenance of a national database
to assist state and local police forces. The other main Federal
law enforcement forces include the Drug Enforcement Agency;
and the Bureau of Alcohol, Tobacco and Firearms.
Traffic
Offences
For most
people, the most likely encounter with the law, might come
in the form of traffic violations such as speeding and accidents.
While driving on any public road, one needs to be prepared
to be stopped by a police officer for speeding or other traffic
inspection. Most roads have speed markers prominently placed,
and the enforcement is quite rigorous with automatic speed
cameras and radars being increasingly used.
For traffic
violations, such as speeding, people are generally issued
a "ticket" or "citation" on the spot,
which may either be paid by mail or at a local traffic court.
The procedure in the courts is generally streamlined and organized.
One can either accept the ‘plea bargain’ or judgment, pay
the specified fine and walk away; or in rare cases, argue
the case in front of a judge. Traffic citations and tickets
are a matter of public record and affect both your driver's
license status and insurance rates. Parking violations can
be paid by mail, but sometimes require a court appearance.
In most instances, except for DUI (driving under the influence
of alcohol), traffic violations are not considered criminal
offenses. Word of caution: One should never attempt
to bribe a police official in the United States. The penalties
for attempted bribery are much more serious than penalties
for any traffic violation!
Traffic
accidents are generally unpredictable and when they do occur,
we need to be prepared. The law in the US, when it comes to
traffic accidents is very clear. In case of an accident, both
parties, regardless of who is at fault, need to exchange their
name, phone number and insurance details. Generally a police
officer arrives at the scene within a few minutes of the accident,
notes all the information and gives a ‘ticket’ and summons
to appear at the local court on a specified date.
Lawsuits
Traffic
violations or accidents are not the only time people go to
court. There were a number of well-publicised cases filed
by Indians in the US that made headlines in recent times.
One of the most publicized cases is the one filed by the Gujarati
software engineer Dipen Joshi, who sued his employer for trying
to enforce an illegal bond. This case was interesting for
a number of reasons. Indians, especially those on H1 visas
rarely lash out against employers, even when they are subject
to undue harassment.
Joshi
had arrived in the US in March 1998, hired by a California
based company Compubahn, which was supposed to contract him
to work for high-technology firms in Silicon Valley. Compubahn
has offices in Union City, California, and Woodbridge, Virginia,
and its clients include Oracle and Sun Microsystems. For the
first six months, Joshi was not placed anywhere. Then, in
September, he was sub-contracted to another consultancy that
placed him with Oracle. In June 1999, Joshi decided to leave
Compubahn and join Oracle. Compubahn responded by demanding
$77,085 from Joshi in damages for leaving before his 18-month
contract was over. Joshi hired a lawyer in California who
not only managed to blow holes through Compubahn’s case but
also recovered a hefty settlement. According to the ruling,
Compubahn had to pay $207,051.50 in legal fees and $7,999.11
for other expenses. For Joshi, winning the lawsuit did not
entail big gains since his lawyer managed to pocket most of
the $207,051, making some wonder if it was really worth the
trouble. Of course the flip side of this case is the moral
victory that Joshi won, giving courage to others in a similar
predicament who could consider legal options open to them.
Another
recent lawsuit was the McDonalds-beef-in-fries case. A couple
of Hindus in the US filed a suit against McDonalds claiming
that it misrepresented the presence of beef-extract in its
fries. The company was under fire from Hindus all over the
world who rallied around, shocked that a multinational could
blatantly hide a fact sacred to most vegetarians. Details
of any monetary settlement are unknown but the case resulted
in a public relations nightmare for the company.
Sometimes,
individuals balk at the thought of going to court, even when
they realize that they were wronged, little realizing that
the system is designed to provide them justice. In the following
section, I narrate an anecdote of my experience at an American
small claims court. I had an opportunity to test the strength
of the American legal system and was pleasantly surprised
by the outcome
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