Lee & Garasia, LLC
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Criminal Law & Municipal Court Archives

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.

NJ Deportation Lawyer on Immigration Post Conviction Relief Applications

While the subject of post conviction relief applications often arises within the context of whether an attorney should have advised a criminal defendant of the potential immigration consequences of a plea, most of the case law seems to center around deportability: that is, whether someone who is already physically present in the United States and in many cases, lawfully admitted, may be removed from the US on account of the plea to the criminal charge. What is rarely discussed but arguably equally important is the issue of admissibility. The issue of admissibility may arise in a number of contexts including when someone physically present in the United States is applying for permanent residence as well as when Lawful Permanent Residents travel abroad and technically make an application for admission when they return. Foreign Born criminal defendants who are not United States Citizens should bear in mind that deportability and admissibility are not necessarily coterminous, and that while a certain plea may not necessarily render one deportable, it doesn't necessarily insulate one from admissibility issues. Equal consideration should be given to both, even if criminal defense attorneys are only aware of the deportability ramifications.

Could Certain Traffic Violations in NJ Lead to Deportation?

While most people generally understand that certain felonies and sometimes misdemeanors may constitute Crimes Involving Moral Turpitude, it is less understood that under certain circumstances, even traffic violations may rise to the level of crimes of moral turpitude. DWIs can, under aggravating conditions, get you deported. A recent case from the Board of Immigration Appeals from this year goes further and confirms that driving in a manner indicating a wanton or willful disregard for the lives or property of others while in the course of eluding a police officer in pursuit--at least as codified in Washington--is also a crime of moral turpitude. It is, of course, more complicated, but the decision does loosen the boundaries of what can potentially be a deportable offense. Foreign born residents of New Jersey charged with an offense involving elements of reckless driving and eluding should read the decision. The case is Matter of Armando RUIZ-LOPEZ from June 30, 2011, and can be found on the EOIR website.

Metuchen Immigration Lawyer and Traffic Ticket Attorney

As an immigration lawyer based in Edison, New Jersey, our office naturally serves a very diverse population of residents living not only in Edison, but also Woodbridge, Iselin, and Metuchen. Metuchen is incredibly mixed. The quaint borough notably has an Asian population of 7.23%. It is not clear whether undocumented aliens are part of this demographic. In any case, it is worth noting that besides being, in my opinion, one of the most scenic towns in the state, Metuchen is also one of the more aggressive in enforcing traffic laws. It is not uncommon for people to be charged with improper passing, DWI, as well as speeding around this area. Why is this significant? Because many people with immigration status problems are under the impression that they will only pop up on ICE's radar if they unfortunately have some sort of criminal history. What is not taken into account is that if traffic tickets are not handled responsibly, people may be incurring motor vehicle points which may in turn lead to license suspension if too many are accumulated. In some cases, people forget or ignore their traffic summonses, leading eventually to bench warrants. If an individual without status has the misfortune of being arrested for Driving While Intoxicated, or picked up on a warrant, he or she could conceivably come to the attention of ICE, the enforcement arm of DHS. The most recent sweep by ICE bears this out in which many people with arrests in Municipal Court were picked up. It goes without saying that individuals with status issues should of course be driving responsibly. Unfortunately, this is not a perfect world and mistakes do happen, whether it is the individual's or police officer's error. If you do have the misfortune of receiving a traffic summons, and your immigration status is not certain, make sure that you take care of it.

"Illegal" Aliens Being Picked Up in New Jersey for Deportation Because of Criminal Convictions

According to ICE, "Operation Crosscheck" was a resounding success. Our office had received anecdotal reports of as well consulted with people who were caught up in this recent dragnet, and now the statistics are actually out. According to the Asbury Park Press, the latest ICE sweep rounded up 2901 individuals in one week. In New Jersey, 86 convicted criminals were apprehended. In Monmouth alone, four people were picked up. More than 1600 had felony convictions, but our office received many calls from people who had minor, disorderly persons/misdemeanor type offenses. The point here is that individuals with criminal records, even if they are from municipal court, should definitely consult with a lawyer to determine both the criminal and immigration ramifications. Anyone (assuming that you are not already a US Citizen) who has even been arrested, even if for something like DWI or Driving While Suspended, is potentially vulnerable. It's only a matter of how wide ICE decides to broaden its target efforts. Of course, being arrested and being convicted are two different things, but do you really want to be in court or worse, detention, litigating that difference?

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
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