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.
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.
It is a commonly misunderstood that an order of removal or deportation is tantamount to permanent banishment from the United States. While an order does bar an individual from re-entry, it does not necessarily mean that a person is forever banned from the United States. In some cases, an order prohibits re-entry for five years. In the vast majority of cases, however, an order bars admission for a period of ten years. The important thing to understand is that once an individual has spent the requisite period of time outside the United States, he or she will not be automatically barred from admission. Of course, there may likely be other grounds of inadmissibility that prohibit a person from coming, (e.g., unlawful presence, fraud, crimes), but the force of the removal order is attenuated and ultimately extinguished once the time period is over.
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.
All too often these days, unfortunately, foreign nationals are picked up by Immigration and Customs Enforcement and detained for crimes for which they were convicted of years ago. Under Section 236c of the Immigration and Nationality Act, the government is allowed to hold individuals without affording them an opportunity for bond or release. Otherwise known as mandatory detention, 236c applies to the following classes of individuals:
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.)
The Ninth Circuit recently issued a precedential case that is instructive, and potentially helpful, to individuals accused of making false claims to US citizenship. In Diaz-Jimenez v. Sessions, No. 15-73603 (9th Cir. 2018), the court confirmed that obtaining private employment did fall within the scope of false claims; however, the court also ruled that for purposes of 1182(a)(6)(C)(ii)(I), a person can only be considered to have made a false claim of citizenship in connection with private employment only when such representation is made on Form I-9. In the case at hand, there was no evidence of an I-9 form to sustain the government's claim that Mr. Diaz-Jimenez misrepresented his citizenship status to secure a job, resulting in the court reversing the BIA's finding and remanding the case.
Earlier last month, we wrote about USCIS implementing the new Notice to Appear Policy Memorandum released on June 28 of this year. According to a bulletin released late last week, the second phase of expansion is scheduled to take place November 19, 2018. On and after this date, USCIS will begin applying the new policy to the following types of applications upon denial:
On September 26, 2018, USCIS quietly announced that it will be implementing the June 28 updated guidance on issuance of Notice to Appears (NTAs). This will be an incremental roll out, with the new memo being applied to different types of cases at different stages. Effective October 1, 2018, the memo will be applied to "status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status." According to the bulletin, the new guidance will not be implemented with respect to employment-based and humanitarian applications and petitions at this time. The announcement also makes clear that USCIS will continue its current practice for NTAs regarding applicants with criminal records or where there are fraud or national security concerns.
Over the Labor Day weekend, the Board of Immigration Appeals (BIA) quietly released an important decision that has a significant impact on individuals hoping to file "Pereira motions." In Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018), the court held that a Notice to Appear that does not specify the time and place of a person's initial removal hearing does not divest an Immigration Judge of jurisdiction so long as a Notice of Hearing specifying this information is later sent to the individual. In the case at hand, the respondent filed a Motion to Terminate arguing that his case should be dismissed in light of the Supreme Court's decision in Pereira v. Sessions, in which the highest court in the land declared that a Notice to Appear lacking the required information (as to date, time, and place) does not stop the clock for purposes of calculating physical presence eligibility for cancellation of removal. After the decision came out, many attorneys also extrapolated from the Court's clear language that such Notices to Appear were, in effect, not only defective for cancellation of removal purposes but defective per se. This gave birth to "Pereira motions" which have seen mixed results in New Jersey, with some judges granting and others, denying.