In Absentia Orders of Removal

Sometimes, an individual who enters the country unlawfully or overstays their visa is placed in a removal proceeding without their knowledge.  In cases where an alien in removal proceedings does not attend his hearing in Immigration Court, a judge can issue an order removing that person from the country (this is known as an in absentia order of removal).  Unfortunately, lack of knowledge of one’s own removal proceeding is sometimes insufficient as a defense to removal.  This blog article explores what is to be done if ordered removed in absentia.  

This article is only a summery and it is advisable to consult with an immigration lawyer in NYC if you are looking to reopen your case in that jurisdiction.   

How does one revoke an order that was issued in absentia?

If an individual has been ordered removed without his knowledge then one must file a motion to reopen to rescind that order.  

What does one need to show to successfully reopen their case? 

In order to reopen a removal order issued in absentia, one must demonstrate that he or she was not served with a notice to appear stating the date, time and location of the removal proceeding.  In such circumstances, the alien should request proof that the government served the respondent at the proper address.  If such proof is not provided, or if the alien show that the notice was sent to the wrong address, then a meritorious claim for a motion to reopen exists.     

If I am about to be deported what happens if I file a motion to reopen?

When a motion to reopen an in absentia order is made, the order of deportation is automatically stayed.  In other words, the order is paused until the court makes a decision on the motion to reopen.  If the date you have to leave the country is fast approaching, then you must hire an experienced immigration appeals attorney in NYC to immediately file your motion.  

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Municipal Appeals in NJ

In New Jersey, less serious crimes are charged in Municipal Court, where one goes before a judge, not a jury.  In the context of criminal and quasi-criminal law, municipal courts handle only disorderly persons offenses, traffic violations, or municipal ordinance charges.  If convicted under any of these classifications, one has 20 days to take action and file an appeal.  In taking such a step, it is critical to hire an NJ Appeals Attorney who has the experience and skill to handle an appeal from Municipal Court. 

In Which Court Is A Municipal Appeal Heard? 

Municipal Appeals are heard in the Superior Court of the County where the criminal charges originated.   In other words, if you were found guilty in Paterson Municipal Court, then you would appeal your case to the Passaic County Criminal Court. 

What Are The Procedures Of The Superior Court In A Municipal Court Appeal? 

When a conviction is appealed to Superior Court,then a trial denovo takes place.  What that means is that the criminal case is tried again and the Superior Court judge will make his own decision on whether one is guilty of the crime for which he is charged.  While a trial denovo represents another chance for a defendant to argue his case, new evidence cannot be submitted and the defendant is restricted to arguing the facts that were established in the original municipal court proceeding.  It is also critical to note that the Superior Court judge hearing the appeal is also bound to defer to the credibility determinations made by the trial judge since he had a better opportunity to see the witnesses testify.  Note, there is a risk in such an appeal, for if the defendant is found guilty again, he may actually suffer a harsher punishment. 

If I Have a Drug Charge, What Are Some Other Arguments I Can Make Besides Just Arguing the Facts?

Whenever you have been convicted for a drug crime, the major issue that a defendant must analyze is whether the search and seizure of the evidence was constitutional.  If an officer stops a defendant while he is driving a car then he must have a reasonable suspicion that the defendant committed a traffic violation or committed a crime.  If he does not have such evidence then any evidence found thereafter cannot be presented in court.  If an officer searches a defendant’s car then he must have a probable cause that a crime took place to justify such a search.  If he does not have probable cause then any evidence found thereafter cannot be used against defendant.  If an officer searches a home without a warrant, again the evidence obtained thereafter cannot be used in court.  If you feel that any of these scenarios took place and you were still found guilty in your municipal trial, please consult with a drug charge lawyer in NJ to see if you have a viable appeal.

Issues involvingU-Visa Applications From a Immigration Lawyer in NJ.

U-Visa petitions present an opportunity for alien victims of domestic violence to gain immigrant status in the country in exchange for their cooperation in the criminal prosecution of their abuser.  This domestic violence visa is particularly helpful in immigrant communities in New Jersey whose cultures discourage victims of abuse to come forward.  While not comprehensive, this blog article will attempt to provide the basic requirements for a U-visa application.  However, it is still important to consult with an immigration lawyer in NJ with the experience to handle your case. 

What are the requirements of the U-visa?

(1) You are the victim of one of the domestic violence crimes listed in Section 101(a)(15)(U) of the Immigration and Nationality Act (or crimes similar to those listed in the Act)

(2) You are the victim of substantial mental or physical abuse as a result of being a victim of the previously described criminal activity

(3) You have information about the crime in which you were a victim

(4) The crime in which you were the victim violated the laws of the US

Who can you sponsor as a derivative beneficiary on the application?

(1) For individuals under 21, your qualifying members are spouses, unmarried children, parents and unmarried siblings under 18. 

(2) For individuals over 21, your qualifying members are spouses and unmarried children under 21. 

What is a Supplement B, and do I need it?

The Supplement B is a form sent to either the responsible detective or prosecutor handling the criminal matter, stating that the victim/U-visa applicant has been cooperative in the criminal case.  Not only is it required for approval of a U-visa, it is perhaps the single most important factor in whether a U-visa is granted. 

What other discretionary materials may be submitted?

It is advised that the victim present evidence of psychological or mental damage as the result of the abuse.  This can be shown through attendance at a domestic violence counseling group or individual therapy.  U-visas can be tricky, so make sure you talk to a immigration lawyer in NJ who has the skills to develop your application properly.

Prosecutorial Discretion from the perspective of an immigration lawyer in NJ.

The Department of Homeland Security announced in 2011 that they would identify all low priority removal cases pending in immigration court and administratively close meritorious cases.  This action is otherwise known as prosecutorial discretion (PD).  While DHS has emphasized that there will be no automatic exercise of prosecutorial discretion for any group of cases, they did announce certain factors that may make an individual a good candidate for the exercise of prosecutorial discretion.  In essence, when requesting PD you are asking DHS to terminate the proceedings against you.  The DHS guidelines are complex, so if you are in deportation proceedings in New Jersey, it is highly advisable to consult with an Immigration Lawyer in NJ.

The following factors are among those considered by DHS in evaluating whether an individual should be granted PD:

·         An individual’s length of time in the United States;

·         The age of the individual when he or she entered the country;

·         Whether a person entered into the US with or without inspection;

·         Whether an individual was educated in the United States;

·         An individual’s criminal and immigration history;

·         Whether a person is a threat to national security;

·         The individual’s ties to the community

·         The individual’s ties to his country of origin and the conditions in that country;

·         The age of the individual;

·         Whether the person has a spouse, child or parent who is a US citizen orGreen Card holder;

·         Whether the person has responsibility over someone with a disability;

·         Whether the individual has other relief in the removal proceeding.

What Happens If PD Is Granted? 

If prosecutorial discretion is granted this generally means that the removal case is administratively closed; however, this case can be reopened at any time.  In a small number of cases, a removal case can be completely dismissed.  If you are in a removal proceeding and you do not qualify for any relief, this option can be effective but it will not confer any status upon you.  Aneffective deportation lawyer in NJ can explain the pros and cons of such an action.

What does the Provisions Waiver mean?

Recently, the U.S. government finally approved the provisional waiver, with the corresponding procedures to follow in the coming months.  Under the previous 601 waiver policy, individuals who entered the country without inspection could not apply for permanent residence without leaving the country during the duration of the waiver process.  The new provisional waiver has been applauded by immigration activists throughout the tri-state area; and immigration lawyers in NJ, NY and throughout the country see the new act as an important step in providing status to law abiding immigrants with family in the US. 

Who can apply for the Provisional Waiver? 

First, in order to be eligible for the provisional waiver, one must be the immediate relative of an individual who is a citizen of the United States.  Under US immigration law, US citizens may petition for the following immediate relatives:

1.      Spouses;

2.      Unmarried children under the age of 21;and

3.      Parents (so long as the U.S. citizen is 21 or older). 

Second, one must have entered the country without inspection (or entered the country without coming through a port of entry) and stayed for over 6 months.  The overwhelming majority of this group of people crossed into the United States through the border with Mexico.  For individuals who have entered into the country legally and overstayed their visa, they can apply for a green card and stay in the country without having to apply for a waiver. 

However, a person cannot apply for a provisional waiver if he or she in inadmissible for a reason other than the fact that they were unlawfully present in the US.  This primarily applies to those who have a criminal conviction that necessitates a waiver of its own.

What is the 601A waiver application and what must it show? 

USCIS will release a new application called at 601A waiver.  This is a complex procedure that is best handled by a provisional waiver lawyer, with a background in the previous 601 waiver application process.  Much like the conventional 601 waiver, the applicant must show that the rejection of the waiver application will result in extreme hardship to his or her US citizen immediate relative (note that the current USCIS statement on the provisional waiver states that the hardship must be shown on a US citizen spouse or parent only; so it is not clear whether hardship can be shown to children). 

What are the procedures?

Though the exact procedures will be clear in the coming weeks, there are certain general features that are known.  First, the applicant will apply for a green card though their immediate relative, and send the application to the embassy in their country of origin. Then, the applicant will submit the 601A waiver application.  Next, the applicant will inform the National Visa Center that he or she is applying for the provisional waiver from USCIS.  Finally, the applicant will leave the country in order to appear at the visa interviewin their home country’s US embassy.   While there is still much to be decided, the new rule will relieve the burden on countless number of immigrants who have immediate relatives in the US but are living without status.

Guide to New Jersey’s Juvenile Justice System From the Perspective of a Criminal Lawyer in NJ

In continuing with New Jersey’s Juvenile Justice System, we now look at the later stages of the juvenile proceeding.  Remember, in order to effectively navigate these proceedings, it is crucial to consult with a criminal lawyer in NJ who has the expertise to properly represent you or your loved one.

Probable Cause Hearing

In cases where a delinquent remains in carcerated after the first hearing, within 2 days a probable cause hearing will be conducted in Family Court. In the event that the judge does not find probable cause that the child committed the act he or she is accused of, the child will be released and the charges will be dismissed.  If probable cause is found, either a pre-trial date or a trial (adjudication) date will be set by the court. 

Plea or Trial

In the event that a juvenile chooses to plead guilty, an effective criminal lawyer in NJ can negotiate a deal that is favorable to the juvenile.  In more minor cases and matters where the juvenile has no criminal history, an attorney can negotiate for counseling, community service as well as other programs as an alternative to detention.  Traditional punishments such as probation are available, but even those can be catered to the needs of the child. 

In the event that the child elects to go to trial, he or she will not be in front of a jury but will be in front of a judge.  However, in most other respects the trial process is similar to the process in adult court.   In the event that a child is found guilty then the case proceeds to sentencing or a dis-positional hearing.  

Dis-positional Hearing

At the dis-positional hearing, the judge will mold a program aimed at rehabilitating the child. The Court will consider the plan set forth by probation and the prosecutor.  Also, the court reviews any statements made by the parents.The court will adopt a disposition,which may include counseling, detention, intensive supervision, community service, and placement in a residential home for therapy.

After an adverse disposition, the delinquent can elect to appeal his conviction.  In such cases, it is key to consult with a NJ Appeals Attorney to determine if there are appeal able issues. 

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Second Circuit Reaffirms Limits on the Right to Bear Arms

In a unanimous decision, the Second Circuit held that it is not unconstitutional for New York to require applicant seeking a gun permit to show proper cause or a heightened need for special protection in comparison to the general public. 

In Kachalsky, et al. v. Cacace, et al., five residents from Westchester County were denied gun permits because they failed to meet this “heightened need” standard.
   
The Second Amendment right to bear arms is not an unlimited right. The Supreme Court reaffirmed this notion in District of Columbia v. Heller where it confined one’s possession right to the home. Gun possession outside of the home, however, is a completely different matter. 

The Second Circuit’s unanimous decision in this case emphasized the public safety concerns New York’s heightened-need standard is meant to protect. Residents are not prevented from obtaining a handgun – one may still obtain a permit for hunting purposes. The only caveat is that those who wish to carry a handgun in public must demonstrate their need for self-protection.

While states may not outright ban possession of a concealed weapon, it is not unconstitutional to regulate use when it is clear that public safety considerations clearly outweigh one’s subjective need for self-defense. 

Residents in California, New Jersey, and Maryland are also challenging licensing laws, respectively. It should be interesting to see how the Courts rule, and if the Supreme Court grants certiorari on any of these cases.  It does seem that there is broad support for such laws, as criminal justice advocates and law enforcement officials both advocate for more restrictive gun laws.  However, many criminal lawyers in NYC are not supportive of laws that will criminalize what they feel are reasonable attempts to possess a weapon.  Some criminal lawyers in Queens and other high-crime boroughs are further discouraged that such restrictive laws only push individuals who desire to own a weapon to turn to the black market for their purchase.

Experts Propose Green Cards for International College Graduates

After successfully advocating for the implementation of President Obama’s deferred action directive, immigration experts have now shifted their attention to granting international students similar status.

Immigration has maintained and fueled this country for over 200 years; therefore, it goes without saying that international students are the stimulus our slowing economy needs. Even New York City Mayor Michael Bloomberg agrees that this might be the answer to our financial crisis.

If giving green cards to international graduate students seems too radical, Mayor Bloomberg suggested creating a new visa in the alternative.

While immigration is the solution rather the problem, Congress has yet to signal the execution of such legislation.

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