Lee & Garasia, LLC
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Criminal Law & Municipal Court Archives

NJ Criminal Immigration Attorney: Is there a deportation waiver for domestic violence?

One of the more common grounds of removal known to immigration practitioners, but no so much to the general public, is a conviction for a crime of domestic violence. Many permanent residents and aliens-and sometimes their attorneys-- are sometimes so focused on the dangers of aggravated felonies and crimes involving moral turpitude, that they neglect to ascertain whether they are exposed to a charge of deportability based on this ground. INA 237(a)(2)(E) states: "Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable." Interestingly, there is no parallel inadmissibility provision for domestic violence. But what about situations where battered spouses are convicted of domestic violence crimes even though they may have been acting in response to an alleged attack by their abuser? Fortunately, the Immigration and Nationality Act recognizes limited circumstances like these and provides for a waiver to possibly waive the deportability teeth of a domestic violence conviction. The waiver can be found in INA 237(a)(7) and applies to victims of domestic violence victims. It states that the Attorney General may waive the deportability provisions of a domestic violence crime for a person "who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship upon a determination that-

Can An Immigrant In a New Jersey Jail Be Deported Before Finishing The Criminal Sentence?

While by no means an ordinary practice, there are limited situations where an individual who is not a United States citizen who is convicted of a criminal offense may be removed to his/her native country prior to completion of the criminal sentence. It is not available in every state but where it is available, it is coordinated through the ICE Rapid REPAT program, a smaller component of the ICE ACCESS (Agreements of Cooperation in Communities to Enhance Safety and Security) initiate. The three main elements of the program, as outlined on ICE's fact sheets, are the following:

Would A Criminal Offense in NJ Municipal Court Qualify Under The Petty Offense Exception?

As has been discussed in previous entries, a conviction of a crime involving moral turpitude ("CIMT") constitutes one of the most common grounds of removability-whether it be in terms of deportability or inadmissibility. What exactly is a crime involving moral turpitude is, of course, a very complicated question subject to much interpretation and beyond the scope of this discussion. In short, though, crimes involving moral turpitude are generally those that are considered against the standards of common morality and almost always involve some knowing or purposeful conduct. Crimes which involve fraud, deceit, or intentional inflectional of severe physical injury usually are at risk of being classified as such. Conviction of a crime involving moral turpitude or, under certain circumstances, even an admission of having committed a CIMT, is a ground of inadmissibility under section 212 of the Immigration and Nationality Act, which would not only potentially bar an individual from being legally admitted to the US but also prevent an individual from qualifying for a green card or visa, whether immigrant or non-immigrant. Fortunately, there is a safe harbor: it is titled the Petty Offense Exception, and serves to exempt one CIMT offense under certain specified conditions.

Can I Be Deported For Accepting Pretrial Intervention (PTI) in New Jersey?

If an individual charged with an indictable criminal offense is fortunate enough, he or she will be given the opportunity to participate in PreTrial Intervention or PTI. PTI is a mechanism in New Jersey's criminal justice system by which certain cases that meet a specified criteria are diverted from the prosecution track. The specific guidelines are delineated in Court Rule 3:28. If the defendant successfully completes the program, which entails a probationary period, not to exceed thirty six months, during which he or she must keep out of trouble, the charge or charges will ultimately be dismissed. For a US Citizen, PTI is often one of the first options a criminal defense attorney will explore on behalf of the client. However, for the foreign national who is not a US citizen, PTI-while, for the most part, still an excellent alternative-can be perilous, particularly when it comes to a plea or admission of guilt, which sometimes happens before entry into the program. The reason is that while the PTI ordinarily disposes of the charge and actually results in a dismissal of the charge-the guilty plea still exists or counts for immigration purposes despite the fact that the criminal charge has been dismissed. And as many people know or should know, a conviction of certain criminal offenses will expose an alien to potential removal.

Is A New Jersey Drunk Driving (DWI) A Crime Of Moral Turpitude?

What exactly is a Crime Involving Moral Turpitude (also commonly known by its acronym "CIMT")? There are few terms in the English language as frustratingly enigmatic as the above rubric. It is a legal term of art that, in many ways, defies strict definition. The case law in this area, if anything, shows just how amorphous its borders can be. For a non-citizen, fewer classifications are fraught with more peril other than aggravated felonies and arguably controlled substance offenses. This is in large part because a CIMT can lead to deportation, absent a waiver (if one is legally available). A useful starting definition can be found in Matter of Short, a Board of Immigration Appeals Case: CIMT "refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general...moral turpitude has been defined as an each which is per se morally reprehensible and extrinsically wrong..."

New Jersey Conditional Dismissal Program For Municipal Court Signed Into Law

We had written earlier about the potential impact of the proposed Conditional Dismissal Program on alien defendants in Municipal Court.  We just learned today that the Bill was signed into law by the Governor and will become effective within 120 days.  Here is the link to the bill:  

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....

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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190 State Route 27
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