Lee & Garasia, LLC
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Criminal Law & Municipal Court Archives

Criminal PCR Application Does Not Always Save From Deportation

Being convicted of a crime is often one of the surest ways for a foreign national to get caught up in the deportation system and possibly removed from the United States. Unless the conviction is not a Crime Involving Moral Turpitude, Aggravated Felony, or other type of deportable offense, there may be little relief for the non-US citizen unless he/she qualifies for some sort of waiver. In these types of situations, immigrants may need to explore whether it is possible to vacate or modify the criminal conviction itself through some sort of post-conviction relief application. Under certain circumstances, overturning or amending the original conviction may significantly change whether someone is deportable or not. For example, many theft aggravated felonies are triggered upon conviction of a theft crime where a sentence of a year or more is imposed. If the sentence is later altered to 364 days, that conviction may no longer be considered an aggravated felony, an important legal determination which can make all the difference.

Multiple DWIs Will Disqualify for Cancellation ("10 Year Law")

On October 25, 2019, Attorney General William Barr issued a very significant decision regarding eligibility for cancellation of removal, one of the most coveted forms of immigration relief for those charged with being in the country illegally. (Under cancellation of removal, individuals granted relief in immigration court not only get their court cases canceled but also receive green cards.) In order to qualify for cancellation, an individual must establish, among other things, that he/she possesses good moral character for the ten-year period preceding the application. Under this case, which Acting Attorney General Matthew Whitaker had previously certified to himself for review (prior to being succeeded by AG Barr), evidence of two or more DWI convictions during the ten-year period now creates a presumption that the individual does not possess good moral character. According to the Attorney General, "multiple DUI convictions represent a repeated failure to meet the community's high moral standards" and "criminal activity is probative of non-adherence" to generally accepted community conventions.

NJ Drunk Driving Immigration Consequences | Marijuana Use Can Be Deportable

In New Jersey, a DWI is most commonly associated with alcohol. However, that is not the only way an individual can be charged with driving while under the influence. Under New Jersey statute 39:4-50, the law encompasses driving under the influence of not only intoxicating liquor, but also narcotics, hallucinogenic or habit-producing drugs. In other words, operating a motor vehicle under the influence of marijuana can give rise to a DWI charge just as easily as driving impaired due to alcohol.

Immigration May Change Effect of PCRs

In a disturbing development, the Attorney General indicated in Matter of Thomas and Thompson, 27 I & N Dec. 556 (A.G. 2019), that he will be considering and ultimately rendering a decision on the immigration impact of convictions that are subsequently altered. At issue is "whether, and under what circumstances, judicial alteration of a criminal conviction or sentence-whether labeled 'vacatur,' 'modification,' 'clarification,' or some other term-should be taken into consideration in determining the immigration consequences of the conviction." Put plainly, the AG will be examining what effect a modified, vacated, or overturned conviction will have on whether someone is deportable, inadmissible, or qualifies for some sort of relief or benefit. This issue is mostly encountered in the context of a "PCR" or post-conviction relief application where a criminal case is subsequently re-opened. Once a case is reopened, the conviction is normally vacated, and the charge(s) and/or punishment are disposed of in an alternate manner, sometimes in the form of dismissal, amendment of charges, or reduction of sentence. Depending on what result is arrived at, an individual's immigration situation may change. Someone who may have formerly been held deportable on the basis of a crime involving moral turpitude may no longer be removable if the underlying conviction is vacated or changed into an offense that is not one involving moral turpitude. Ever since the Supreme Court's decision in Padilla v. Kentucky in 2010, droves of foreign nationals with criminal convictions have attempted to stave off deportation by reopening their criminal cases due to ineffective assistance of counsel to warn them of the immigration consequences of their convictions. Some have been successful; some not.

Can Drunk Driving in a School Zone Cause Deportation or Immigration Problems?

In New Jersey, driving while intoxicated in a school zone is a very serious offense with particularly severe penalties that go well beyond the typical punishment associated with a regular drunk driving offense. The offense is punished under Title 39:4-50(g), which provides for enhanced penalties when a violation under 39:4-50 occurs:

How Do Criminal Charges or Arrest Affect H1 Stamping?

In an earlier article, we briefly discussed the impact of a drunk driving allegation on an individual's H-1b stamp or visa. Matters become even more complicated when the charges are criminal in nature. If one has been arrested or charged with a criminal offense-whether misdemeanor or felony-the issue becomes even more precarious. Being charged or worse, convicted, of a criminal offense poses a potential problem of admissibility for the foreign national, especially in the context of an H-1b specialty worker without a visa who has already left the United States. Since he/she will have to apply for a visa to re-enter, the charges will have to be addressed during the visa application process. If a consular officer determines that conviction of a charge constitutes a crime involving moral turpitude ("CIMT") or worse, an aggravated felony, the individual will be refused a visa unless the ground of inadmissibility can be overcome. In some cases, a conviction is not even necessary. Under current US immigration law, if an individual admits to having committed or admits to having committed acts that form the essential elements of 1) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or 2) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21) is inadmissible.

Will Legalized Marijuana Laws Affect Immigration?

Although legislation to legalize marijuana abruptly stalled late last month, it is only a matter of time before the issue is revived, perhaps as early as June of this year. In spite of this, legalization of cannabis remains a hot legislative priority for a growing number of states around the country. Perhaps with that in mind, USCIS recently issued a policy alert regarding controlled substance activity and good moral character determinations. The thrust of the bulletin essentially highlights what is often misunderstood by the public: marijuana is classified as a Schedule I controlled substances and under federal law, manufacture, cultivation, possession or distribution is prohibited. Even if possession of marijuana is legal in a state jurisdiction, this does not nullify federal immigration consequences for foreign nationals since our immigration law is federal in nature.

Will New Jersey Drunk Driving (39:4-50) Affect H-1B Stamping?

This is a very common question that we deal with in the ordinary course of our business. Unfortunately, it is also one that is extremely complex and heavily dependent on a number of factors, including but not limited to the nature of the offense; one's immigration history; as well as one's criminal history. In general, in this climate, any arrest-even for offenses which may not be deportable-can potentially have an impact on one's immigration stay here.

Crimes in New Jersey That Can Expose Immigrants to Detainers

Last week, we wrote about New Jersey Attorney General Law Enforcement Directive 2018-6, which directs state law enforcement to refrain from actively enforcing immigration law except in narrowly defined circumstances. Two salient aspects of the directive prohibit law enforcement from providing notice of an immigrant detainee's upcoming release from detention to ICE; and continuing detention of an immigrant detainee, pursuant to a detainer, beyond the time the person would be eligible for release. It is important to note that these two guidelines do not apply in the case in the case of foreign nationals charged with, convicted of, or adjudicated delinquent of a "violent or serious offense." Fortunately, this classification is much less ambiguous than some federal immigration terms, many of which are amorphous and subject to interpretation.

New Jersey Shoplifting Theft Offense Held Not To Be Deportable

Late last month, attorneys in New Jersey were pleasantly surprised to learn of a one-year-old immigration court decision that directly implicates many issues currently impacting foreign nationals charged with disorderly persons offenses in our state. Although unpublished and hence, non-precedential (in other words, courts are not bound to follow the ruling of this case), In re: Mario Harold FLORES may afford defense counsel with greater weight to argue that misdemeanor offenses-technically non-indicatable offenses-in New Jersey are not "convictions" within the meaning of the Immigration and Nationality Act. (A "conviction" under section 101(a)(48) can form the predicate basis of a ground of removability.)

PROFESSIONAL RECOGNITION

    • Avvo Rating 10.0 | Superb
    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationally Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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