The BIA released a very interesting decision recently that can have potential immigration ramifications for anybody convicted in our state's municipal courts. The case is Matter of Roberto Cuellar-Gomez, 25 I&N 850 (BIA 2012). There were several issues before the Board, which arose out of an Immigraton Judge's ruling that the Respondent, Mr. Cuellar-Gomez, was removable on the basis of a conviction for a Wichita, Kansas, municipal ordinance prohibiting marijuana possession. Despite the respondent's arguments that his conviction in the municipal court did not constitute a State crime, the Board disagreed and held that the township violation not only was a breach of a law or regulation of a State...relating to a controlled substance," but also that the conviction also served as a predicate offense that allowed DHS to classify the respondent's subsequent marijuana conviction later on that year, as an Aggravated Felony. The decision is much more complicated than is explained here. The gist here is that one should not assume that one is immune to removability just because a criminal case was disposed of in municipal court. Moreover, pleading guilty to a township ordinance does not necessarily insulate an individual from potential removability. Our municipal courts, following the logic of the decision, are merely extensions of State sovereignty, and as such, so long as procedural due process is given to a criminal defendant in court, convictions for ordinances--which are not ordinarily considered crimes or even misdemeanors--can serve as the basis of deportability, especially when it comes to drug offenses. (Incidentally, this is assuming, of course, that the State charges an individual with an ordinance in the first place, or is willing to downgrade a disorderly persons offense to that of an ordinance--which, these days, is getting increasingly rare.)
We are still awaiting clarification and guidelines from USCIS as to how the DREAMER deferred action program will be implemented. We are also awaiting more guidance as to who will be disqualified from applying. USCIS has made it clear that those with felony convictions will be not be granted deferred status. A felony, according to USCIS, is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. This is understandable. However, what is not so transparent is the meaning of a significant misdemeanor or even a misdemeanor for that matter. Does a local ordinance violation constitute a misdemeanor? Will a DWI be considered a significant misdemeanor? It arguably could, given that it is a state offense "involving driving under the influence of alcohol or drugs"! What about leaving the scene of an accident? In New Jersey, Leaving the Scene of an Accident is punishable by up to 30 days in jail for cases where there is only property damage, and up to 180 days in the event of personal injury. See NJSA 39:4-129. Technically speaking, the offense could constitute a state offense involving "unlawful flight from arrest, prosecution, or the scene of an accident."
Here's an op-ed of mine that recently appeared in the Asbury Park Press Sunday Edition in the Opinions Section (July 8, 2012).
Just a few weeks ago, a school in Iselin, New Jersey, was "busted" by DHS for allegedly running a scam involving foreign students. This only underscores again how important it is for prospective foreign students to be aware of what schools are and are not allowed to do, as well as what their own obligations and limitations are as a foreign student. While the school has not been proven guilty and will certainly be entitled to its day in court with a presumption of innocence, there have been scandals involving schools that directly affect their students. Even when students are innocent of any wrongdoing and actually victims, many have been forced or pressured to leave, some even deported. Students need to make sure that they are enrolled in schools approved by immigration, of course, to enroll foreign students. They also need to be cognizant of their obligations with respect to classroom time and hours and carry a full course load. Those who do not will fall out of compliance and be reported by SEVIS (Student Exchange Visitor Information System). From there, it is only a matter of time before ICE is made aware of the violations.