When President Trump issued his first two Executive Orders last week, the majority of news outlets focused on the immense southern border wall that will supposedly be constructed. The barrier, along with the moratorium on visas from predominately Muslim countries, is of course controversial and some would say, antithetical to our identity as a nation of freedom. Interestingly, though, not much (or certainly not as much) attention was given to President Trump's Order relating to "Enhancing Public Safety in the Interior of the United States." This particular order arguably is even more disturbing given that it directly impacts millions of immigrants (both legal and "illegal") here within our borders, as opposed to people trying to come in. President Trump's Order directs increased enforcement of our immigration laws through aggressive measures designed to affect a much broader swath of the population. Over the next few weeks, we will highlight some of these measures as they are fleshed out by the Administration. Of note, though, is Section 5 of the Order, which pertains to Enforcement Priorities. This section essentially, in one fell swoop, dismantles former President Obama's policy of focusing on only certain discrete segments of the population. In contrast, President Trump dramatically expands the class of targeted aliens to include:
In New Jersey, reckless driving is punished under Title 39. It is not classified as a criminal offense, which is codified under Title 2C of the New Jersey Code. 39:4-96 reads, in part:
When it comes to DWI (39:4-50) in NJ, many people-including attorneys-often overlook the ramifications of a DWI on admissibility. Clients are often so concerned about deportability that they or their counselors may neglect to explore the impact of a Drunk Driving conviction on admissibility-which comes into play whenever a non-US citizen wishes to enter the United States or when an individual applies for permanent residence, either through the consular process or alternatively, adjustment of status.
The Board of Immigration Appeals ("BIA") recent issued a precedential decision last month that may cause havoc for immigration court cases concerning domestic violence. The ruling in Matter of H. Estrada, 26 I & N Dec. 749 (BIA 2016), essentially revolves around what constitutes a crime of domestic violence. Under the Immigration and Nationality Act, a non-US citizen is deportable for a conviction of a crime of domestic violence if the crime is a "crime of violence" as defined at 18 USC 16 and is committed against a victim with a protected domestic relationship. Under 237(a)(2)(E)(i), this has been taken to cover offenders who are current or former spouses of the victim; individuals who the victim shares a child in common; individuals who cohabitate or have cohabitated with the victim as spouses; or by those similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where the crime occurred.
One of the most frequently issued traffic citations issued in New Jersey is a charge of violating Title 39:3-10. This ticket is often referred to as "Unlicensed Driver." Unfortunately, for the undocumented population, this is a very common offense, given that many individuals will not qualify for a New Jersey Driver License due to their illegal status. Illegal immigrants who have received this ticket are often concerned whether a conviction of this statute will jeopardize their status even more or possibly prevent them from one day applying for a green card.
Some of our more substantive work is done in the field of Post-Conviction Relief. In many instances, an individual may have pleaded guilty to a criminal offense without understanding the immigration consequences of doing so. In order for our attorneys to evaluate the viability of withdrawing a plea or reopening a case, it is essential that any prospective client obtain a transcript of the criminal proceedings.
The Board of Immigration Appeals (BIA) recently issued an important precedential decision in Matter of J-H-J, 26 I & N Dec. 563 (BIA 2015) that affects individuals who may need to file criminal waivers in order to stay in the United States. This is a notable decision because the Board has retreated from its former position and withdrawn from two previous decisions regarding the same issue.
For individuals applying to become permanent residents of the United States, a clean criminal history is often a must. People who have been convicted of certain types of crimes may potentially be disqualified from getting their green cards if they have been convicted of crimes involving moral turpitude or aggravated felonies. What may not be so well known is that a conviction is not necessary under all circumstances in order for an immigration officer or official to deem an applicant (or even a lawful permanent resident) as "inadmissible." According to the Immigration and Nationality Act, an admission of a crime involving moral turpitude may also constitute a ground of inadmissibility.
Under our immigration laws, an alien who has been convicted of a crime involving moral turpitude may not only be deportable but also ineligible to apply for a green card, re-enter the country, or become a naturalized citizen. Fortunately, the law recognizes that individuals should not always suffer the grave immigration consequences of a minor violation, and carves out two limited exceptions for crimes involving moral turpitude. The first one pertains to a single offense and is often referred to as the "petty offense exception." The second, which is not as well known, but of tremendous help to individuals who may have committed a criminal offense as a minor is termed the "Youthful Offender Exception."
While most non-US citizens are generally aware that being convicted of a major crime may render them deportable, many will often underestimate the impact of certain traffic offenses on their immigration status. In New Jersey, for example, there is a traffic offense that is often charged as a companion offense to criminal offenses involving drugs, namely, 39:4-49.1 Drug Possession by Motor Vehicle Operator. This particular offense can be particularly virulent to a non-citizen because it is often dismissed as a something that is not criminal when, in fact, it is actually quite nasty.