M AY 1 3 , 2 0 1 5

MAKING SENSE OF IMMIGRATION LAW- GETTING DOWN TO

BUSINESS, STAYING OUT OF TROUBLE

P R E S E N T E D BY S C O TT R. M A LY K , E S Q .

DEFERRED ACTION FOR CHILDHOOD ARRIVALS (“DACA”)

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 2-year 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**

P R E S E N T E D BY S C O TT R. M A LY K , E S Q .

DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (“DAPA”)

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.

P R E S E N T E D B Y S C O T T R . M A LY K , E S Q . A N D M I C H A E L N O R I E G A , E S Q .

ROLE OF COUNSEL IN DAPA AND DACA CASES

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.

P R E S E N T E D BY S C O TT R. M A LY K , E S Q .

NAVIGATING NEW POLICIES SUPPORTING U.S. HIGH-SKILLED WORKERS UNDER

PRESIDENT OBAMA’S EXECUTIVE ORDER

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.

P R E S E N T E D BY M I C H A E L N O R I E G A , E S Q .

IMMIGRATION CONSEQUENCES OF NEW JERSEY CRIMINAL DISPOSITIONS

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

Nunez-Valdez

Padilla

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 RESPONSIBIL IT IES

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, Nuñez-Valdéz 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 STATUS-MAJOR 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 C O NTRO LS C O NSEQ UE NC ES

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 ANALYSIS-WHAT 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:12-

1b(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

Assault of spouse-Probable deportability

Assault of police officer-Only if sentenced to 1 year or more

Resisting arrest 3rd-Only if sentenced to 1 year or more

Resisting arrest 4th-Probably not

Marijuana possession-Only if more than 30g

Assault of spouse-No inadmissibility

Assault of police officer-Probable inadmissibility

Resisting arrest 3rd- Probable inadmissibility

Resisting arrest 4th- Probably no inadmissibility

Marijuana possession-Inadmissibility

LPR CLIENT NON-LPR CLIENT

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 ORDECEIT 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-Z-S, 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)

• Juvenile court

disposition• Pre-trial intervention• Diversion, drug

treatment or family counseling IF NOT PLEA OR ADMISSION OF GUILT

• Formal judgment of guilt in adult criminal court• Diversion of drug

treatment or family counseling IF PLEA OR ADMISSION OF GUILT

“Conviction” Not “conviction”

NEW JERSEY DISPOSITIONS (2)

• Conditional discharge

IF NO PLEA OR ADMISSION OF GUILT• Conviction on direct

appeal (being litigated)• Disposition vacated

based on legal defect in criminal case

• Conditional discharge IF PLEA OR ADMISSION OF GUILT• Conviction on

collateral challenge• Disposition

vacated/expunged in the interest of justice

“Conviction” Not “conviction”

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.

P R E S E N T E D BY S C O TT R. M A LY K , E S Q .

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?

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 advanced-degree 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

S C O T T R . M A LY K , E S Q . A N DM I C H A E L N O R I E G A , E S Q .

ATTORNEY BIOS

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 long-term 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.

• 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.