MAKING SENSE OF IMMIGRATION
LAW- GETTING DOWN TO BUSINESS,
STAYING OUT OF TROUBLE
MAY 13, 2015
DEFERRED ACTION FOR CHILDHOOD
ARRIVALS (“DACA”)
PRESENTED BY SCOTT R. MALYK, ESQ.
THIS IS EXECUTIVE BRANCH POLICY,
NOT LEGISLATION
• DACA ≠ THE DREAM ACT
• The DREAM Act, as proposed, would allow
childhood arrivals to obtain green cards
• DACA simply instructs the executive branch (i.e.;
ICE, CBP, USCIS) how to exercise prosecutorial
discretion
• Total initial applications filed ≈ 700,000 (as of 9/2014)
WHAT DACA CAN PROVIDE:
• Deferred Action (a “guarantee” that removal
proceedings will not be initiated or will be closed)
for a brief period – with a possibility of renewal; and
• Issuance of Employment Authorization Document
(EAD)
• Provides blanket work authorization to applicant
• Allows applicant to obtain other important documents like
Social Security Card and Driver’s License
• Available only if applicant can show economic necessity
• NOTE: individuals granted deferred action do NOT
accrue unlawful presence for the purpose of INA
212(a)(9)(B) and (C)(i)(I)
WHAT DACA DOES NOT PROVIDE:
• DACA does not confer a lawful immigration status
upon an applicant
• DACA does not alter existing immigration status
• DACA does not provide a “pathway to citizenship”
ORIGINAL ELIGIBILITY GUIDELINES FOR
DACA:
• Were under the age of 31 on June 15, 2012
• Arrived in the U.S. before 16th birthday
• Can prove they have continuously resided in the U.S. from June
15, 2007 to the present
• Can prove that they were physically present in the U.S. on June
15, 2012 (and at the time they are requesting deferred action)
• Entered without inspection or had their lawful immigration status
expire before June 15, 2012 (does not include pending
applications/petitions)
• Satisfy the education requirement
• No felony convictions or 3 or more misdemeanors
THE PROPOSED EXPANSION OF THE
DACA PROGRAM
• Entered the United States before reaching your 16th birthday;
• Continuously resided in the United States since January 1, 2010 to the present;
• Were physically present in the United States on June 15, 2012, and at the time of making
your request for consideration of DACA w/ USCIS;
• Had no lawful status as of June 15, 2012;
• Are currently in school, have graduated or obtained a certificate of completion from high
school, have obtained a general education development (GED) certificate, or are an
honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Have not been convicted of a felony, significant misdemeanor, or three or more other
misdemeanors, and do not otherwise pose a threat to national security or public safety;
and
• Must pass an FBI background check.
DACA EXPANSION IN A NUTSHELL
Age cap removed:
• DACA, as expanded, will apply to all eligible immigrants who
entered the U.S. before the adjusted entry date (as long as
that entry date was before his/her 16th birthday), regardless of
how old the applicant was on June 15, 2012 or is today.
• The current DACA program excludes those who were older
than 31 on June 15, 2012 (i.e., those who were born before
June 15, 1981). That restriction will no longer apply with the
expanded guidelines.
DACA EXPANSION IN A NUTSHELL
(CONTINUED)
Extended validity period of approved deferred action and
accompanying work authorization:
• The period for which DACA and the accompanying EAD is
granted is now 3-year increments rather than the previous 2year increments.
• This change was made effective November 24, 2014 and
applies to all first-time DACA applications as well as all
applications for DACA renewal. Beginning on November 24,
2014 USCIS began issuing employment authorization
documents (EADs) valid for three years, including to those
individuals who applied prior to the effective date but
received an adjudication post-November 24, 2014.
DACA EXPANSION IN A NUTSHELL
(CONTINUED)
Adjusted date-of-entry requirement:
• To align the DACA program more closely with the proposed
Deferred Action for Parental Accountability program, the
eligibility cut-off date by which a DACA applicant must have
been in the United States will be adjusted from June 15, 2007
to January 1, 2010.
CHALLENGE #1:
PROVING CONTINUOUS RESIDENCY
• You must prove continuous residency in the United
States since January 1, 2010 to the present time
• School or employment records are probative
evidence, but not often available
• May need to get “creative” with proofs
CHALLENGE #2:
DEMONSTRATING PHYSICAL PRESENCE
• You must prove physical presence in the United
States on June 15, 2012, and at the time of making
your request for consideration of deferred action
with USCIS
• Similar problems with continuous residency
• Possible options: bank records, money order history,
rental receipts, utility/cell phone bills, dated
correspondence, etc.
PRACTICAL REQUIREMENTS FOR FILING
DACA CASES
• Eligible candidates should:
• File Consideration of Deferred Action for Childhood Arrivals
[Form I-821D]
• File Application for Employment Authorization [Form I-765]
• With Supplemental Worksheet for DACA [Form I-765WS]
• Include requisite filing fees payable to “Department of
Homeland Security” of $465.00
• $380 is the filing fee
• $85 is the biometrics fee
• NOTE: there is an application for a fee waiver in certain cases (e.g.
homeless, foster care, excessive medical expenses)
• **Applications must be filed concurrently or they will be
rejected**
DEFERRED ACTION FOR PARENTAL
ACCOUNTABILITY (“DAPA”)
PRESENTED BY SCOTT R. MALYK, ESQ.
AN OVERVIEW OF THE DAPA PROGRAM
• USCIS was directed by Executive Order to establish a process
similar to DACA for parents of USC and LPR children –
“Deferred Action for Parental Accountability”
• Exercising prosecutorial discretion through the use of deferred
action on a case-by-case basis
• Like DACA, DAPA provides blanket work authorization to
otherwise eligible, unauthorized parents who are not
enforcement priorities and have been in the country for more
than 5 years.
ELIGIBILITY CRITERIA FOR DAPA
PROGRAM
DAPA eligibility criteria are distinct and apply to certain individuals
who:
• Have a child who is a U.S. citizen or lawful permanent resident
born on or before November 20, 2014;
• Have continuously resided in the United States since before
January 1, 2010;
• Are physically present in the United States on November 20,
2014, and at the time of applying;
• Have no lawful immigration status on November 20, 2014;
DAPA ELIGIBILITY CRITERIA
(CONTINUED)
• Are not an enforcement priority, which is defined to include
individuals with a wide range of criminal convictions (including
certain misdemeanors), those suspected of gang involvement
and terrorism, recent unlawful entrants, and certain other
immigration law violators (See November 20, 2014
Memorandum on Policies for the Apprehension, Detention
and Removal of Undocumented Immigrants);
• Present no other factors that would render a grant of deferred
action inappropriate; and
• Pass a background check.
ROLE OF COUNSEL IN
DAPA AND DACA CASES
PRESENTED BY SCOTT R. MALYK, ESQ. AND
MICHAEL NORIEGA, ESQ.
ROLE OF COUNSEL FOR THE INDIVIDUAL
APPLICANT
• Is it in your client’s best interests to apply for DAPA if the client
discloses that he/she has been filing tax returns using a false
SSN/ITIN?
• What if your client presented false documents in connection
with the I-9 process (to demonstrate work authorization) to
his/her current employer?
• What if your client has a criminal record?
• What if your client has made prior immigration filings?
• How to best advocate for your client’s best interests in the
face of these issues?
ROLE OF COUNSEL FOR THE EMPLOYER
• Situation: When employee was originally hired, he/she
presented what appeared to be valid work authorization
documents. Now the employee comes forward and says my
real name is different than the one I used at the time of hire,
and here is my new social security card and employment
authorization document. How do you counsel this client?
• Answer: fill out new Form I-9 with the employee (use original
hire date in Section 2) and attach a copy of the new
supporting documents with a written explanation. Staple all of
this to a copy of the original Form I-9.
• I-9 rules (governed by USCIS) do not require that you terminate
the employee for using a false identity.
NAVIGATING NEW POLICIES SUPPORTING
U.S. HIGH-SKILLED WORKERS UNDER
PRESIDENT OBAMA’S EXECUTIVE ORDER
PRESENTED BY SCOTT R. MALYK, ESQ.
THE GRANT OF EMPLOYMENT AUTHORIZATION
FOR CERTAIN H4 SPOUSES OF H-1B WORKERS
• Effective May 26, 2015, DHS will extend eligibility for employment
authorization to certain, qualifying H-4 spouses of H-1B workers who are
in the process of seeking employment-based lawful permanent resident
status in the United States.
• Eligible individuals include H-4 spouses of H-1B workers who:
• (i) are the principal beneficiaries of an approved Immigrant Petition for Alien
Worker (Form I-140); or
• (ii) have been granted H-1B status (beyond 6 years) on the basis of a PERM
application that has been pending with USCIS for at least 365 days.
• Eligible H-4 spouses must file an Application for Employment
Authorization (Form I-765) with supporting evidence and the required
USCIS filing fees.
IMMIGRATION CONSEQUENCES OF NEW
JERSEY CRIMINAL DISPOSITIONS
PRESENTED BY MICHAEL NORIEGA, ESQ.
THE STATISTICS
1982
U.S. deported 413 people based on criminal conviction(s)
FY2006
U.S. deported over 103,163 people based on criminal
grounds.
FY2008
U.S. placed 221,085 people into removal proceedings from
“Criminal Alien Program”
THE STATISTICS
2010
ICE deported 392,862 undocumented foreigners, of whom
more than 195,000 were convicted criminals, an increase of
more than 23,000 deportations – including 81,000 people
with criminal records – compared with 2008.
2011 – DEPORTATIONS
US immigration target for 2011: 404.000 deportations, includes
screening jails
• In FY2011, ICE removed 396,906 foreign nationals from the
U.S. Of those, 216,698 were convicted of felonies or
misdemeanors, including 1119 convicted of homicide, 5,848
convicted of sexual offenses, 44,653 convicted of drug-related
crimes, and 35,927 convicted of a DUI (driving under the
influence). More than two-thirds of the remaining removals
involved individuals who had recently crossed the border or
repeat immigration violators. The overall number of foreign
nationals removed in FY2011 was the highest in the agency’s
history.
WHY HAS DEPORTATION BECOME SO
MUCH MORE CERTAIN
• 1996 Amendments to Immigration Law severe for
criminal offenses
• Increased federal enforcement of these laws; and
• Increased local collaboration-e.g., NJ AG 2007 Law
Enforcement Directive for inquiring about
immigration status of arrested persons.
IMMIGRATION CONSEQUENCES OF CRIMINAL
OFFENSES HAVE GOTTEN WORSE
• Deportation – mandatory after some crimes
• Detention - mandatory after some crimes
• Bars after crimes – re-entry, waivers, asylum, relief from
deportation
• Limited judicial review of removal order.
• Future penalties – enhanced re-entry penalty
• Bar to U.S. citizenship-for several years or even
permanently
Gaitan
Padilla
NunezValdez
QUESTIONS:
• What are my obligations when I have a client who is not a US
citizen?
• What do I need to ask?
• What follow up questions do I need to know once I find out
their status?
• What is the difference between a greencard and citizenship?
• What happens if the criminal matter is dismissed-does the
client still face deportation?
TRAINING PURPOSE
• Review new responsibilities after Padilla v. Kentucky
for Criminal Defense attorneys.
• Immigration primer – Fundamentals.
• How to avoid pleas and sentences that will lead to
deportation.
• From Municipal Court to Superior Court
AGENDA
i. Responsibilities of the Criminal Defense Attorney
ii. Effectively Representing an Alien in Criminal Matters
iii. Consequences beyond the criminal case
iv. Resources
PADILLA AND BEYOND:
DEFENSE COUNSEL’S NEW RESPONSIBILITIES
SUMMARY OF PADILLA
• Padilla was an Lawful Permanent Resident (LPR)
facing deportation for CDS offense involving
Marijuana.
• Defendant Claimed counsel:
• Counsel failed to properly advise of imm consequences.
• Counsel misadvised when counsel said “you’ve been in the
country a long time, you don’t have to worry.”
Padilla claimed he relied on erroneous advice when he
plead guilty, making deportation mandatory.
SUMMARY OF PADILLA (CONT.)
• USSC disagreed with the Kentucky Supreme Court
and agreed with Padilla’s argument that:
• “Constitutionally competent counsel would have advised
him that his conviction for drug distribution made him
subject to automatic deportation.”
• The drastic measure of deportation or removal…is now
virtually inevitable for a vast number of noncitizens
convicted of crimes.
SUMMARY OF PADILLA (CONT.)
• Due to these drastic results, the Court held “that accurate
legal advice for noncitizens accused of crimes has never
been more important”
• “Deportation is an integral part-indeed, sometimes the most
important part-of the penalty that may be imposed on
noncitizen defendants who plead guilty to specified crimes.”
• The court found that the consequences were sufficiently clear
and that the attorney’s conduct therefore fell below the
reasonableness standards pursuant to the Strickland analysis.
IMPACT ON CRIMINAL DEFENSE ATTORNEYS
• Advice regarding immigration consequences covered by 6th
Amendment because deportation is a particularly severe
penalty that is intimately related to criminal process.
• Defense counsel must rely on their existing professional
standards for what constitutes effective assistance of counsel.
IMPACT ON CRIMINAL DEFENSE ATTORNEYS
• Criminal defense counsel must provide affirmative and
competent advice regarding immigration consequences;
non-advice (SILENCE) is insufficient (ineffective).
• Informed consideration of the immigration consequences is
sanctioned as a valid tool to accomplish plea negotiations in
resolving criminal matters.
CRIMINAL DEFENSE ATTORNEY RESPONSIBILITIES
A. Duty to inquire about citizenship/immigration status at initial
interview stage.
B. Duty to investigate and advise of
immigration consequences of plea
alternatives
C. Duty to investigate and advise of
immigration consequences of sentencing
alternatives.
IMPACT IN NEW JERSEY:
STATE V. GAITAN
Holding:
• Padilla is a new constitutional rule-therefore not entitled to retroactive
application on collateral review. (Contrary to 3rd Circuit decision in U.S. v.
Orozio, 645 F.3d 630).
• Although Padilla will not apply retroactively on collateral review, NuñezValdéz did not announce a new rule and governs the standard of
attorney performance in New Jersey in ineffective assistance of counsel
claims on collateral review.
• Strickland analysis still controlling standard for ineffective assistance
(conduct falling below objectively reasonable standard + prejudice)
• Padilla was not merely an application of Strickland to new facts, but an
announcement that counsel must give affirmative advice about
consequences outside of criminal prosecutions.
IMPACT IN NEW JERSEY:
STATE V. GAITAN
• Even if removal is not mandated, counsel must highlight
for noncitizen clients that entering a guilty plea will place them
at risk of removal and that they may seek legal advice on
potential immigration consequences.
• Finally, under Nuñez-Valdéz, if counsel provided affirmatively
misleading advice about the removal consequences of a
guilty plea, then deficiency may exist for purposes of
establishing a prima facie ineffective assistance of counsel
claim entitling defendant to an evidentiary hearing in a PCR
proceeding.
A. DETERMINING IMMIGRATION STATUS
WHO IS AT RISK OF DEPORTATION OR OTHER
NEGATIVE IMMIGRATION CONSEQUENCES?
• Answer: Any non-citizen
YOUR CLIENT IS A NONCITIZEN IF S/HE WAS
BORN OUTSIDE THE U.S. UNLESS:
• Born Abroad to USC parents
• Derivative citizenship through parents; or
• Lawful immigration and naturalization
WHAT ARE THE VARIOUS TYPES OF
IMMIGRATION STATUS THAT A NON-CITIZEN
MAY HAVE?
IMMIGRATION STATUSMAJOR CATEGORIES:
1.
Lawful permanent resident
(LPR, or “green card” holder)
2.
Refugee or asylee
3.
Temporary visitor (on student, business, or other visa)
4.
Undocumented status, (e.g., crossed the border without
inspection or overstayed temporary visa admission
SUMMARY OF QUESTIONS TO ASK AT FIRST
CONSULT
•
•
•
•
•
•
•
•
•
Place of Birth
Country of Birth (don’t assume these first two are the same)
Nationality of Parents
First entry into the US
Status at first entry
Current Status
Parents in US? Status?
Spouse? Status?
Children? Status?
B. CONSIDERATIONS BEFORE ENTERING PLEA FOR
NON-CITIZEN CLIENT
STATUS CONTROLS CONSEQUENCES
DEPORTABILITY V. INADMISSIBILITY
• Deportability – alien who has been properly
admitted into US has to be deemed deportable by
government.
• Inadmissibility – alien who has been neither
inspected or admitted. Certain crimes render alien
“inadmissible” thereby preventing “entry, admission
or adjustment”
DEPORTABILITY V. INADMISSIBILITY
EXERCISE 1
Angela entered the U.S. illegally. She is now living in
Trenton and is married to a U.S. citizen and wants to
apply for lawful permanent resident (LPR) green
card. If you represent Angela in criminal
proceedings, should you focus primarily on avoiding
criminal inadmissibility or criminal deportability?
EXERCISE 1 ANSWER
You should focus primarily on avoiding the criminal
inadmissibility grounds. If Angela becomes inadmissible,
she will not be able to obtain admission as an LPR unless
she is eligible for a wavier and a wavier is granted.
EXERCISE 2
Bernardo is a lawful permanent resident living in
Newark. He becomes inadmissible (but not
deportable) for criminal conviction. What effect
does this have on his current status?
EXERCISE 2 ANSWER
Nothing. As Bernardo is already lawfully admitted, he
does not lose his current status unless he becomes
deportable.
EXERCISE 3
Bernardo (the lawful permanent resident from
Newark) urgently wants to see his dying mother in
Panama. What problem does his being inadmissible
for crime pose now?
EXERCISE 3 ANSWER
If Bernardo leaves the U.S., he will be considered to be
seeking new admission upon his return. He will be
refused admission and lose his status, unless a waiver is
available and the government grants it. Thus, a
defense lawyer should warn Bernardo of the risk of
travel outside the U.S.
CRIMINAL GROUNDS OF INADMISSIBILITY
• Controlled substance offense
• Crime involving moral turpitude (CIMT)
• Petty offense exception: for 1CIMT if maximum possible
penalty does not exceed one year of imprisonment and
actual penalty does not exceed six months of imprisonment
• Prostitution
• 2 or more offenses with aggregated sentence of 5
years or more
CRIMINAL GROUNDS OF DEPORTABILITY
• Controlled substance offense
• (30 grams marijuana possession exception)
• Crime involving moral turpitude (CIMT)
• (1 CIMT within five years of admission, or 2 CIMTs at any time)
• Firearm offense
• Crime of domestic violence, stalking, crime against
children, or violation of protection order
• Aggravated felony
MAIN CRIME-RELATED GROUNDS OF
INADMISSIBILITY & DEFENSE STRATEGIES
CRIMINAL GROUNDS OF INADMISSIBILITY
• Controlled substance offense-conviction or admission
• NO 30g marijuana possession exception!
• including “reason to believe” drug trafficker
• Crime involving moral turpitude (CIMT)- conviction or
admission
• Petty offense exception: for 1 CIMT if maximum possible
penalty did not exceed one year of imprisonment and actual
penalty did not exceed six months of imprisonment (Query:
Does NJ DP or crime in fourth degree qualify?)
• Prostitution or commercialized vice
• 2 or more offenses with aggregate sentence of 5
years or more
MORAL TURPITUDE ANALYSISWHAT OFFENSES INVOLVE MORAL TURPITUDE?
• Statute does not define what is a crime involving
moral turpitude!
• Whether a crime involves moral turpitude depends
on the elements of the offense, not the name of the
offense.
MORAL TURPITUDE ANALYSIS (2)
Under case law, moral turpitude offenses include:
• crimes with intent to steal or to defraud as an
element (e.g., theft offenses, burglary to commit
theft, and forgery offenses);
• Crimes in which bodily harm is caused or threatened
by an intentional or willful act, or serious bodily harm
is caused or threatened by a reckless act (e.g.
murder, rape, and certain manslaughter and assault
offenses); &
• Most sex-related offenses (e.g. sex abuse, prostitution
PRACTICE TIPS OF AVOID CRIMES OF MORAL
TURPITUDE
• Avoid pleading to crimes where intent or
knowledge is the mens rea
• If you cannot do this, plead to a statute where
mens rea is ambiguous
• Know your client’s priors
• Keep the record of conviction (and any other
documents related to the case) clean!
REVIEW OF CRIMES OF MORAL TURPITUDE
• Lower level grounds of removability so more relief is
sometimes available
• Can include both misdemeanors and felonies
• Mens rea matters, so keep it low
CASE STUDY 1
• 30 year-old client is arrested when police respond
to report of a domestic incident involving his wife.
Police say that during the arrest your client pushed
one of the responding officers. He admits to
running from the officer, but denies having pushed
him. There is no dispute that the officer was not
injured. Upon arrest, the police also find a small
amount of marijuana in your client’s pocket.
CASE STUDY 1(CONTINUED)
Charges:
• Simple assault against wife, disorderly persons offense (2C:
12-1a(1));
• Aggravated assault on police officer, 4th degree (2C:121b(5));
• Resisting arrest, 4th degree (no violence) and 3rd degree
(NJSA 2C:29-2a(2) and 2C:29-2a(3));
• Marijuana possession (50g or less) disorderly persons
offense(2C:35-10a(4)).
Now assume your client is a non-citizen who is NOT lawfully
admitted to the U.S., but who wants to legalize his status based
on his marriage to a U.S. citizen
CASE STUDY 1-ANALYSIS
NON-LPR CLIENT-Focus on avoiding inadmissibility
• Assault of spouse-may be CIMT (depends on mens
rea, record of conv.) but would not be inadmissible
because of petty offense exception
• Assault of police officer-may be inadmissible
depending on record of conviction (CIMT)
• Resisting arrest 3rd-Probable inadmissibility (CIMT)
• Resisting arrest 4th-Probably not
• Marijuana possession-Inadmissibility (CSO)
CASE STUDY 1 - COMPARISON
LPR CLIENT
NON-LPR CLIENT
 Assault of spouseProbable deportability
 Assault of police officerOnly if sentenced to 1
year or more
 Resisting arrest 3rdOnly if sentenced to 1
year or more
 Resisting arrest 4thProbably not
 Marijuana possessionOnly if more than 30g
 Assault of spouseNo inadmissibility
 Assault of police officerProbable inadmissibility
 Resisting arrest 3rdProbable inadmissibility
 Resisting arrest 4thProbably no
inadmissibility
 Marijuana possessionInadmissibility
MAIN CRIME-RELATED GROUNDS OF
DEPORTABILITY & DEFENSE STRATEGIES
CRIMINAL GROUNDS OF DEPORTABILITY
Reminder:
• LPRs who are in the U.S. should focus primarily on
avoiding the grounds of “deportability.”
CRIMINAL GROUNDS OF DEPORTABILITY
• Controlled substance offense conviction
• (30 grams marijuana possession exception)
• Crime involving moral turpitude (CIMT)
• 1 within 5 years of admission +potential sentence of 1 year
or more
• 2 any time after admission “not arising out of a single
scheme”
•
•
•
•
•
Firearm offense conviction
Aggravated felony conviction
Crime of domestic violence of stalking conviction
Child abuse, abandonment or neglect conviction
Violation of protection order-criminal or civil finding
GROUND OF DEPORTABILITY, CONT.
• A conviction can trigger deportability under more
than on ground.
• Some grounds bar eligibility for relief from
deportation; some do not.
CONTROLLED SUBSTANCE OFFENSE GROUND
• Any conviction of “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 21
USC 802)”
• 8 U.S.C §1227 (a) (2); INA § 237 (a) (2) (B)
CONTROLLED SUBSTANCE OFFENSE, CONT.
• Sole exception: for “a single offense involving
possession for one’s own use of 30 grams or less of
marijuana.”
STRATEGIES TO AVOID CONTROLLED
SUBSTANCE OFFENSE
• If a marijuana case and no prior drug convictions,
plead guilty to possession of 30 grams or less of
marijuana, if possible.
• Specify a substance that is not covered under 21
USC 802. If impossible, then keep record clear or
substance involved. (Compare substances
punished by NJ with federal punish CSA.)
FIREARM OFFENSE GROUND
• Conviction “under any law of purchasing, selling,
offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or conspiring
to purchase, sell, offer for sale, exchange, use, own,
possess, or carry, any weapon, part, or accessory
which is firearm or destructive device (as defined in
18 USC 921 (a)).”
AGGRAVATED FELONY GROUND (“AF”)
In general, an “aggravated felony” is the most
important ground for you LPR to avoid.
Some reasons why:
• Deportation is a near certainty. Bars ability to
maintain lawful permanent residency and almost all
forms of relief from deportation.
• Permanently bars US citizenship
• Triggers mandatory detention without bond
• Permanently bars ability to return to the U.S. after
deportation.
AGGRAVATED FELONY (2)
• A misdemeanor can be an aggravated felony.
United States v. Graham, 169 F.3d 787 (3d Cir 1999).
Some NJ DP and fourth degree offenses can be
deemed aggravated felonies!
• A crime need not be committed “with
aggravation” for it to be an aggravated felony.
8 USC § 1101(a), INA § 101 (a)(43)
AGGRAVATED FELONY (3)
Congress used varied criteria in defining aggravated
felony offenses:
• Conviction alone (e.g. murder)
• Conviction + sentence (e.g. theft + sentence of a
year or more)
• Conviction + other characteristic (e.g., fraud + loss
exceeds $10,000)
8 USC § 1101(a), INA § 101 (a)(43)
AGGRAVATED FELONY (4)
Specific AF Offenses:
Murder, rape, or sexual abuse of a minor
Drug trafficking
Firearms trafficking
Crime of violence with prison sentence of at least one
year
• Theft of burglary offense with prison sentence of at least
one year.
• Offense involving fraud or deceit with loss to victim(s)
exceeding $10,000
• Other offenses at 8 USC § 1101(a)(43)
•
•
•
•
DRUG TRAFFICKING AGGRAVATE FELONY
Offense is a drug trafficking AF if it either:
• Is a felony and contains a trafficking element.
Jeune v. Atty. Gen., 476 F. 3d 199 (3d Cir 2007);
Matter of Davis, 20 I&N Dec. 536 (BIA 1992) or
• Proscribes conduct punishable as a felony under
federal law. Lopez v. Gonzales, 127 S. Ct. 625
(2006).
WHAT IS A DRUG TRAFFICKING AF?
A state offense that is analogous to a federal felony:
• Manufacturing, distribution, dispensation
• Possession with intent to manufacture, etc.
• Exception: gratuitous distribution of small amount of
marijuana should not be AF. Wilson v. Ashcroft 350 F.
3d 377 (3d Cir. 2003).
STRATEGIES TO AVOID DRUG AF:
FIRST DRUG OFFENSE
• Plead to simple possession offense (still deportable
under Controlled Substance ground)
• Plead to gratuitous distribution of small amounts of
marijuana
• Specify that offense involved substance not
covered in 21 U.S.C 802
BURGLARY AGGRAVATED FELONY
Elements of Burglary Aggravated Felony:
• Conviction for a burglary offense and
• Sentence imposed of one year or more
8 USC § 1101(a), INA § 101 (a)(43)
STRATEGIES TO AVOID BURGLARY AF
• Avoid a sentence imposed of one year or more
• Avoid elements of generic burglary. For example
some courts have held that auto burglary does not
satisfy the generic definition Matter of Perez, 22 I&N
Dec, 1325 (BIA 2000).
• Beware! A NJ burglary conviction that does not fit
the generic definition of burglary may still fall within
other AF categories, like “crime of violence” AF or
“attempted theft” AF.
CRIME OF VIOLENCE AF
• Congress defined a “crime of violence”
aggravated felony by reference to 18 USC § 16,
which is in two parts:
• §16(a) (force as an element)
• § 16(b) (felony)
8 U.S.C. 1103(43)(F); INA 101(a)(43)(F)
16(A) CRIME OF VIOLENCE
(FORCE AS AN ELEMENT)
Offense must have:
• The use, attempted use, or threatened use of force
as an element; and
• A sentence of incarceration of one year or more.
16(A) COV INTERPRETED (2)
Matter of Martin, 23 I&N Dec. 491 (BIA 2002):
• (CT third-degree assault has as an element
intentional infliction of physical injury upon another
and is a crime of violence aggravated felony).
16(A) COV INTERPRETED (3)
Bovkun v. Ashcroft, 283 F. 3d 166 (3d Cir. 2002)
• (holding that PA misdemeanor conviction for
“terroristic threats” is a crime of violence under
16(a) because the offense necessarily required the
threatened use of force).
16(B) CRIME OF VIOLENCE (FELONY)
• Offense is a felony; and
• There is a substantial risk that force against a person
or property will be used in the commission of the
offense; and
• A sentence of incarceration of one year or more
STRATEGIES TO AVOID 16(B) COV AF
• Plead to DP or fourth degree offense
• Plead to offense requiring negligent or accidental
conduct only. If not possible, then plead guilty to
reckless, but not intentional, offense (but this issue is
not settled in all federal courts)
• Avoid one year sentence
• Plead to a divisible statute that includes offenses
that do not satisfy the crime of violence definition
FRAUD OR DECEIT AGGRAVATED FELONY
Elements:
• Fraud or deceit; and
• Loss to victim or victims exceeds $10,000
FRAUD OF DECEIT AF INTERPRETED (2)
Valansi v. Ashcroft, 278 F. 3d 203 (3d Cir. 2002)
• (holding that conviction for embezzlement under 18
U.S.C. §656 involves either intent to injury or intent to
defraud, so not necessarily fraud aggravated
felony.)
STRATEGIES TO AVOID FRAUD OR
DECEIT AF (1)
• Identify offense that does not have fraud or deceit as an
element
• Plead only to a count that involves loss to victim of $10,000 or
less
• Courts may consider evidence outside record of conviction in
determining loss. Nijhawan v. Holder, 129 S. Ct. 2294 (2009).
Create affirmative record that “convicted loss” was $10,000 or
less (plea agreement, allocution, restitution, written stipulation)
See IDP Advisory “Recent Developments in the Categorical
Approach” at www.immigrantdefenseproject.org
THEFT OFFENSE AGGRAVATED FELONY
Elements:
• Conviction for a theft offense, including receipt of
stolen property; and
• Sentence of a year or more.
8 U.S.C. 1101(a)(43)(G); INA 101(a)(43)(G)
THEFT OFFENSE AF INTERPRETED (1)
• “Theft” includes taking or exercise of control of
property without consent and with intent to deprive
owner of benefits of ownership. Gonzales v.
Duenas-Alvarez, 127 S. Ct. 815 (2007). Matter of V-ZS, 22 I&N Dec. 1338 (BIA 2000) (a taking of property
constitutes a theft AF regardless of whether it
involves a permanent taking of the property).
CRIMES OF DOMESTIC VIOLENCE - CATCHALL
• Crime of stalking
• Crime of child abuse, neglect, or abandonment
• Violation of protection order
Includes criminal or civil determination that individual
“has engaged in conduct that violates the portion of
protection order that involves protection against
credible threats of violence, repeated harassment, or
bodily injury to the person or persons for whom the
protection order was issued.
CONVICTION FOR CRIMES OF DOMESTIC VIOLENCE,
CRIMES AGAINST CHILDREN, STALKING OR
VIOLATION OF PROTECTION ORDERS
• Covers wide breadth of offenses
• New Jersey Domestic Violence Act is expansive and
covers broad category of crimes
• Assault charges involving children all fit within this
category, unless charge itself does not require, as
an element that child necessarily be the victim
• Beware of DV violation of protective orders. Get in
touch with family court counterpart.
C. IMPACT OF CRIMINAL SENTENCING ON
IMMIGRATION CONSEQUENCES
“CONVICTION” DEFINED
(8 U.S.C. 1101(A)(48))
• Formal judgment of guilt entered by a court; or
• If adjudication of guilt has been withheld, where:
• A judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt: and
• The judge has ordered some form of punishment, penalty,
or restraint on the alien’s liberty to be imposed.
SENTENCING CONSIDERATIONS:
• Term of Imprisonment - affects CIMT, Aggravated
Felonies, Good moral Character
• Suspended Sentences may still be deemed
“sentence of imprisonment”
• Restitution – loss to victim trigger several
aggravated felony provisions.
SENTENCING CONSIDERATIONS:
• Admissions – in lieu of formal sentence (i.e. PTI, can
be used to remove inadmissible alien.)
• Maximum sentence - i.e. the degree of the crime –
has an impact.
• Actual time served – i.e. 6 months cuts off good
moral character – 187 days of jail credit “time
served” will prevent a person from adjusting to
lawful status.
EVALUATING NJ DISPOSITIONS UNDER
“CONVICTION DEFINITION.
Consider:
• Drug Treatment or Family Counseling Diversion
• New Jersey Pre-Trial Intervention
• New Jersey Conditional Discharge
• Juvenile Disposition
• Appeal
• Post Conviction Vacatur or Expungement
NEW JERSEY DISPOSITIONS (1)
“Conviction”
• Formal judgment of
guilt in adult criminal
court
• Diversion of drug
treatment or family
counseling IF PLEA OR
ADMISSION OF GUILT
Not “conviction”
• Juvenile court
disposition
• Pre-trial intervention
• Diversion, drug
treatment or family
counseling IF NOT PLEA
OR ADMISSION OF
GUILT
NEW JERSEY DISPOSITIONS (2)
“Conviction”
• Conditional discharge
IF PLEA OR ADMISSION
OF GUILT
• Conviction on
collateral challenge
• Disposition
vacated/expunged in
the interest of justice
Not “conviction”
• Conditional discharge
IF NO PLEA OR
ADMISSION OF GUILT
• Conviction on direct
appeal (being
litigated)
• Disposition vacated
based on legal defect
in criminal case
WHAT WILL HAPPEN AFTER THE CRIMINAL
CASE?
• How will ICE find and identify my client as someone
subject to detention and removal?
• How will I be able to find my client if ICE has taken
custody of him or her?
• How does ICE initiate the removal process?
• Will ICE detain my client after completion of any
prison or jail sentence?
• What happens at the immigration judge hearing?
• What hope is there for relief from immigration judge
under the current laws?
BOND V. BAIL
• ICE detainer will not activate until State detainer is
lifted
• Client seeking to get out sooner may end up
triggering more difficult process
• Immigration Bond is discretionary – no constitutional
right to Bond
• Bail Bondsman difficult to find
DETENTION
• Primarily Essex County Jail, Hudson County Jail, and Delaney
Hall if criminal case pending or with criminal record, otherwise,
Elizabeth Detention Center
• Aggravated felonies in record = NO BOND!!!
• ICE unreliable in transporting for Criminal Court
• Imprisonment does not control deportability.
• Still at risk even if on the street
• Federal detention could be anywhere in the country.
FINAL THOUGHTS
• There exists much misinformation about the immigration
process.
• Clients may ask about new “law” they heard about on
the news – if there is a
“new law” we will all hear about it.
• Length of time here is only one small factor in the face of
criminal charges
• The State cannot argue “our office is not concerned
with deportation” USSC has said they must be.
• Deportation is no different from worrying about how to
avoid NERA, GRAVES, or Three Strikes Sentence, if
anything the penalties may be worse.
THE VOLUME OF H-1B FILINGS UNDER THE FISCAL YEAR
2016 CAP - 233,000 PETITIONS FILED FOR 85,000 SPOTS.
DO WE NEED MORE H-1B NUMBERS?
PRESENTED BY SCOTT R. MALYK, ESQ.
H-1B VISA: BRIEF HISTORY
• The H-1B visa is, by far, the most sought after
temporary work visa in the U.S. for foreign-born,
professional workers.
• The H-1B category requires sponsorship by a U.S.
employer and is limited to “specialty worker” (i.e.,
professional-level) positions, which generally require
that the candidate holds at least a bachelor’s
degree or the equivalent in a relevant discipline.
H-1B VISA: BRIEF HISTORY
• Every year on October 1, the U.S. government
makes available 85,000 new H-1B visas, with 20,000
of those set aside for advanced degree graduates
(those with a U.S. Master’s degree or higher) of
colleges and universities in the United States.
• The filing period for these new H-1B visas opens on
the first day of the preceding April.
H-1B VISA: WHAT DOES THIS TELL US ABOUT THE U.S.
ECONOMY? THE FUTURE OF THE H-1B QUOTA?
• When the U.S. economy was more robust, employers filed so
many H-1B petitions that the United States Citizenship and
Immigration Services (“USCIS”) was forced to create a
“random lottery selection” system to establish fairness among
applicants.
• Such demand necessitated this random lottery system during
FY 2008 and FY 2009.
• In fact, in FY 2009, both the general and the advanceddegree caps were reached in the first 5 days of filing in April,
with an estimated 163,000 filings in total.
• By contrast, the following year, FY 2010, the H-1B cap was not
exhausted until December 21, more than 8 months after the
opening of the filing period.
What Does This Year’s Volume of Filings
Tell Us About the U.S. Economy?
**Will be supplemented after H-1B Quota is reached**
What Does It Tell Us About The
Future Of The H-1B Quota?
**Will be supplemented after H-1B Quota is reached**
QUESTIONS + ANSWERS
ATTORNEY BIOS
SCOTT R. MALYK, ESQ. AND
MICHAEL NORIEGA, ESQ.
SCOTT R. MALYK, ESQ.
Scott R. Malyk is a partner with Meyner and Landis LLP's Immigration Law Group specializing in all
aspects of corporate and business-related immigration law. Mr. Malyk represents a diverse group
of domestic and multinational corporations and their employees, providing both short- and longterm guidance in connection with the hiring, transfer and retention of international personnel
worldwide. This includes counseling business clients in areas of worksite compliance, including I-9
audits and investigations, H-1B public access file compliance and electronic (E- Verify) verification
requirements. Scott also represents the interests of self-petitioning foreign nationals seeking
investment opportunities in the U.S., including Immigrant Investors seeking U.S. permanent
residence under the EB-5 program. In addition, Mr. Malyk represents individuals in all types of
immigration proceedings, including outstanding scientific researchers, medical professionals,
foreign legal consultants and a variety of other persons of extraordinary ability in the sciences, arts,
education, business, or athletics, who wish to come to the U.S. to work in their field of expertise.
Such efforts include obtaining temporary and permanent visas for artists, fashion models,
musicians, chefs, professional athletes and other entertainers.
Scott has published articles on various business-related immigration topics, most recently with the
American Bar Association’s Employment and Labor Relations Law Newsletter and the New Jersey
Law Journal’s Employment and Immigration Law Regional General Counsel Supplement.
Scott has been selected for inclusion in the SuperLawyers-Rising Stars Editions for Immigration Law
from 2008-2013 and was the 2012 Recipient of the Professional Achievement Award from the New
Jersey State Bar Association, Young Lawyers Division.
Scott graduated from Lafayette College in 1998 and Seton Hall University School of Law in 2002. He
is licensed to practice in New Jersey and New York.
MICHAEL NORIEGA, ESQ.
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•
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Michael Noriega is a partner with Bramnick, Rodriguez, Grabas & Woodruff in Scotch Plains, NJ,
where he leads the immigration section and assists in the management of the criminal section.
He has dedicated his practice to assisting clients with legal matters throughout Northern New
Jersey. He has argued many times on behalf of his clients in the local immigration courts and the
Board of Immigration Appeals.
Further, he appears regularly in Superior Court and Municipal Courts throughout the State, the
Immigration Courts of New Jersey and New York, and various other states for immigration
matters. Michael has appeared before the Supreme Court of New Jersey where he argued on
behalf of the ACLU in the matters of State v. Kaltner and State v. Morgan and he has previously
argued in the Appellate Division of New Jersey.
Michael began his career as the Law Clerk to the Hon. Camille M. Kenny in the Civil Division of
the Hudson Vicinage, before becoming an Assistant Deputy Public Defender in the Essex County
Adult Trial Region from 2003 to 2008. During his tenure there, he handled hundreds of cases
involving all forms of criminal charges from street level drug charges to racketeering charges in
the first degree, robbery, possession of weapons and murder, to name a few.
In 2014, Michael took his practice to the firm of Bramnick, Rodriguez, Grabas, & Woodruff, a firm
specializing in personal injury, workers compensation and criminal matters. Currently, Michael
serves as an adjunct professor at Seton Hall University School of Law, where he has enjoyed
teaching for over eight years. Additionally, he has been invited to lecture throughout the state
training other lawyers on the topics of criminal immigration, even lecturing during a seminar in
2013 in Costa Rica. Michael volunteers at community initiative functions throughout the state to
speak to crowds of undocumented individuals about the current state of our immigration laws
and its future. Michael has also appeared on on Telemundo’s Revistas with Ana Esther Perez
where he has been interviewed on the possible changes in Comprehensive Immigration
Reform, and CNN Espanol’s Realidades en Contexto con Mercedez Soler, as a guest
commentator.
Michael is available for consultations with criminal defendants in need of assistance in
determining the impact that their criminal cases may have on their immigration matters.