Lee & Garasia, LLC
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Criminal Law & Municipal Court Archives

Supreme Court rules on retroactivity of Padilla

Rosevela Chaidez was a permanent resident of the United States. She was arrested for mail fraud in connection with an insurance scam, and was advised by her lawyer to plead guilty. Her lawyer advised her to plead guilty, and she only received four years of probation. Unfortunately for Ms. Chaidez, her lawyer did not advise her of the immigration repercussions of her guilty plea, and the United States government promptly initiated removal proceedings. Ms. Chaidez brought forward a claim of ineffective assistance of counsel, and while her motion was pending Padilla v. Kentucky was decided. There, the court held that when an attorney fails to advise a client that a guilty plea could result in deportation, then there is ineffective assistance of counsel. While it might seem that this would be great news for Ms. Chaidez, her troubles were not yet over. First, the district court came to the conclusion that Padilla did not constitute a new rule, and thus applied it to Ms. Chaidez's case. However, the U.S. Court of Appeals for the Seventh Circuit disagreed, reversed the decision and announced that as a new rule, it could not be retroactively applied. This has all culminated in a decision that was decided by the Supreme Court.

Could a Township or Municipal Ordinance in NJ Cause Deportation?

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 Immigration 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.)

Expungements Do Not Eliminate Immigration Consequences

There is a common misconception out there that when a criminal conviction or arrest is expunged or "wiped out," it is gone. Since the record is sealed, for all practical purposes, it is as if the event never happened. While this is true in many ways, it does not necessarily translate over to the immigration arena. Despite the fact that an expungement does remove the conviction or arrest from public eyes, law enforcement as well as DHS (Department of Homeland Security) still see those records. That means, for example, that when you apply for naturalization and deliberately fail to disclose an arrest or conviction because it was expunged, you will have a lot of explaining to do at the interview when the immigration officer asks why you failed to answer the question pertaining to arrests/convictions accurately. Do not assume that because something is expunged, it no longer has any bearing or weight on immigration status. If you have ever been arrested or convicted of anything--and you are not a US Citizen--you need to do your due diligence and consult with a qualified immigration attorney to determine the ramifications before you even consider leaving the country for a trip or fill out an application for an immigration benefit. The old adage, as trite as it is, is so true: it is better to be safe than sorry, especially these days....

Supreme Court will hear case on retroactivity of Padilla PCR claims

In an interesting development, the Supreme Court of the United States has decided to hear arguments and issue the final word on whether the decision in Padilla vs. Kentucky applies retroactively. As we have blogged about earlier, Padilla vs. Kentucky is the 2010 landmark case that holds a criminal defense attorney's failure to advise a defendant of the adverse immigration consequences of a guilty plea can be ineffective assistance of counsel. In New Jersey, the Supreme Court of New Jersey ruled that Padilla does not have retroactive effect. The Supreme Court will now hear arguments in the fall in the case of Chaidez v. United States.

New Jersey Supreme Court issues ruling on Immigration Based PCRs

Just yesterday, The New Jersey Supreme Court just handed down a decision in the consolidated cases of Gaitan and Gouldbourne. In a very simple nutshell, the court decided that Padilla vs. Kentucky announced a new constitutional rule of law that does not apply retroactively. Once the opinion is fully digested by this writer, more information will follow. However, suffice to say, this is not a good development for individuals who were not properly advised to immigration consequences prior to pleading guilty....

DWI, Deportation, and Immigration in NJ

As a member of AILA (the American Immigration Lawyers Association), I have been hearing some horror stories of undocumented aliens being apprehended by ICE in municipal court after appearing for a DWI case. These incidents are not anecdotal rumors by any means: they are certainly happening, especially in South Jersey and Monmouth County. People potentially affected by this need to be aware that notwithstanding all this talk of "prosecutorial discretion," it is ICE's job to enforce and apprehend. The Office of Chief Counsel will make further determination as to whether that person ought to be in Immigration Court, but for all practical purposes, unless the ICE officer is formally trained in prosecutorial discretion or particularly sensitive to the issues, he or she may just be following orders to pick up individuals that appear to be in violation of our immigration laws. Or they may just be executing directions as part of an Operation determined from above. It would still be naive in this day and age to think that ICE will leave an undocumented alien alone because he/she is not a terrorist or "danger to society." While a DWI may certainly not be tantamount to murder, it is nevertheless perceived, whether rightly or wrongly, as a type of offense that presents a grave and serious danger to the community. People need to recognize this instead of hiding their heads in the sand and not taking any precautions. At the very least, an immigration attorney should be consulted before making an appearance in municipal court for a DWI offense in New Jersey.

Immigration Consequences for Criminal Cases in NJ Municipal Court

There is a new Directive that governs informing municipal court defendants of the immigration consequences of guilty pleas. According to the directive, New Jersey Municipal Court Judges are required to inform defendants in municipal court that immigration consequences may possibly attach to certain offenses and that defendants have the right to consult with immigration counsel regarding those potential consequences. The judges themselves are not supposed to give legal advice to defendants of the actual consequences but rather make defendants aware of the potential for immigration consequences. If defendants express a desire to consult with immigration counsel, judges are instructed to give defendants an opportunity to do so before accepting a guilty plea. This directive in the municipal courts is modeled closely after an earlier directive governing pleas in Superior Court criminal cases. The fact that these warnings must be given now in our municipal courts underscore how conscientious foreign nationals must be of their status when answering criminal and quasi-criminal charges in our local town courts, which is commonly and mistakenly perceived as a venue where traffic tickets and "not so important " criminal cases are handled.

Theft Crimes in New Jersey Can Be Deportable Offenses

One of the most common types of cases that our office routinely encounters is helping clients to assess whether pleading guilty to a criminal charge may endanger their immigration status. While every case is extremely fact sensitive, theft under the appropriate circumstances can be considered a "crime involving moral turpitude" or even in some cases, an aggravated felony. In New Jersey, theft is graded according to the value of the merchandise allegedly taken. If a criminal defendant is charged with a theft offense, whether it be shoplifting, theft by unlawful taking, receipt of stolen property, etc., with a value over $200, that crime becomes one that is potentially a fourth degree offense. A fourth degree crime carries a potential term of incarceration up to eighteen months. If one were therefore convicted of a theft crime that is at least a fourth degree offense, that individual could be targeted by ICE as a deportable alien. Whether the alien is in fact deportable is a whole other issue--and there are some defenses available--but the point is, any foreign national who is accused of stealing must consider his/her exposure to removal proceedings.

New Jersey DWI Lawyer on Consequences of Drunk Driving on Visas

In this day and age of increased DWI enforcement, especially in New Jersey, more and more people are recognizing the adverse consequences a DWI arrest and/or conviction can have on one's immigration status, ie, potential removability. What is less well known is the impact of a DWI on visa applications, that is, the ability to get here in the first place if one has been arrested for or convicted of drunk driving. Consular officers are specifically instructed to follow a certain protocol when encountering visa applicants whose background checks reveal DWI related offenses. According to the Department of State, consular officers must refer applicants for visas to panel physicians (for further evaluation) in two circumstances: 1) an applicant has a single drunk driving offense or conviction within the last three calendar years or two or more drunk driving arrests or 2) convictions in any time period. This is in addition to referrals based on suspicion of a probable alcohol problem. While alcoholism is not in and of itself a specific ground of ineligibility for a visa to the United States, it is a medical condition that can render one inadmissible under 212(a)(1)(A)(iii) if a panel physician determines that the individual has an alcohol abuse problem which has or is likely to pose a danger to the property, safety, or welfare of the alien or others.

PROFESSIONAL RECOGNITION

    • The National Advocates | Top 100 Lawyers
    • Rated by Super Lawyers | Angie Garasia | 5 Years
    • 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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