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 Although unpublished and hence, non-precedential (in other words, courts are not bound to follow the ruling of this case), In re: Mario Harold FLORES may afford defense counsel with greater weight to argue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 Board of Immigration Appeals recently issued an important decision that should be of interest to any individual charged with domestic violence, contempt of court, and violating a restraining order in NJ. One common New Jersey statute implicated includes NJSA 2C:29-9b. In Matter of Medina-Jimenez, 27 I & N Dec. 399 (BIA 2018), the court held that the categorical approach does not apply when considering whether violating a restraining order disqualifies a person from applying for cancellation of removal, one of the most sought-after forms of relief in immigration court. Instead, an Immigration Judge is allowed to consider any probative and reliable evidence in connection with what the prosecuting authority has found about the individual's violation. The court must only find two things: one, that the offense resulted in a conviction under INA 101(a)(48)(A); and two, whether the State court that heard the matter determined that "the alien engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued." In short, the court need not engage in a strict categorical analysis to determine whether the elements of the offense in question match the federal rubric under INA 240A(b)(1)(C). As long as the immigration court is reasonably satisfied that there was a finding or admission of guilt along with some measure of punishment, and the "conviction" was based on conduct that violated a restraining order, the individual will not be eligible for cancellation of removal. What the court is essentially saying is that since the deportability section regarding restraining orders does not require a conviction, it would not make sense to require a conviction for cancellation of removal purposes.
Last week, the Board of Immigration Appeals ("BIA") issued an important precedential decision that is likely to have a tremendous impact on immigration cases involving drug offenses, especially ones arising out of New Jersey. In Matter of Rosa, 27 I & N Dec. 228 (BIA 2018), the Board held that immigration judges are not limited to comparing a state drug offense to its closest or most similar federal counterpart when trying to determine whether the state crime is an aggravated felony. The Court ruled that it is permissible for an adjudicator to look at multiple provisions of the Controlled Substance Act to determine whether the conduct proscribed by the state also falls within the range of conduct punishable by a federal provision.
Now that Phil Murphy has been elected to be New Jersey's next governor, there is much anticipation that marijuana will be legalized in the state within the first 100 days of his tenure. Under State Senator Nicholas Scutari's bill, the possession of and personal use of up to an ounce of marijuana for adults over the age of 21 would no longer be against the law; additionally, people who have been convicted of marijuana related crimes would be able to seek an expungement of those convictions. Public use of marijuana, however, either through smoking or ingestion would still be outlawed. Presumably, this would continue to encompass driving while under the influence of narcotics, pursuant to 39:4-50.
The Board of Immigration Appeals ("BIA") recently issued a precedential decision late this month that may be of interest to green card holders who are or may be facing removal proceedings. The case is Matter of Giovanni Rosalia VELLA, 27 I &N Dec. 138 (2017). The issue concerns whether a lawful permanent resident who is convicted of an aggravated felony is eligible to file for a 212h criminal waiver if his/her most recent admission was not as a lawful permanent resident. Under 212h of the Immigration and Nationality Act, the government may waive the following criminal grounds of inadmissibility:
One of the most pressing and urgent concerns that undocumented individuals have is what will happen to them if they are stopped for driving without a license. Given the increase in enforcement under the Trump Administration, these fears are not unjustified. In New Jersey, driving without a license is a traffic offense punishable under Title 39:3-10 and often referred to as "Unlicensed Driver." The statute provides for two distinct penalties depending on whether the defendant was ever licensed elsewhere:
On September 6, 2013, Governor Chris Christie signed a new law into effect that implemented the Conditional Dismissal program in New Jersey's municipal courts. Up until 2014, many first time offenders whose cases were heard in municipal court were not able to avail themselves of any formal pre-trial diversionary program like that in Superior Court. As a result, some people ironically found themselves in a legal quandary that similar offenders in Superior Court did not have to address: whether to go to trial or accept a plea to a lesser offense, whereas those in Superior Court who qualified for Pre-Trial Intervention ("PTI") would have the benefit of having the charge(s) dismissed after successfully completing probation. Now that there is a municipal court counterpart to PTI, there appears to be more parity amongst the two venues, with only the gravity and potential penalty of the offense determining jurisdiction. But appearances can be deceiving, and like anything in the law, you have to read the fine print. Certainly, it is generally preferable to have a case heard in municipal rather than Superior Court. However, as we have repeatedly stressed on a number of occasions, the collateral consequences of municipal court offenses can still be very significant, especially for those who are not US Citizens. The Conditional Dismissal mechanism, unfortunately, does very little in the way of vitiating the immigration consequences of some deportable offenses. Shoplifting is a perfect illustration of this.
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: