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BREAKING IMMIGRATION NEWS

9/6/2023 Issue

THE CRIMINAL CASE

_____A big proportion of all people deported from the U.S. in recent years, are non-citizens who had a criminal conviction – even if the conviction was many years ago – even if the conviction was for a minor offense – even if the conviction was later overturned by an expungement.

           In other words: criminal law and immigration law became so “entwined” with each other, that it is dangerous for a non-citizen to face a judge in criminal proceedings without two lawyers – a criminal lawyer and an immigration lawyer.

           Why so? Because most criminal cases end with a plea deal - the criminal lawyer explains to the client that he has no chance of winning the case, and it would be very costly to handle a jury trial, and if he loses, the angry judge may impose a harder sentence. Plead “guilty” or “nolo contendere” and go home.

           But if an immigration lawyer participates, he can advise about what section of the code to plead guilty to. Some sections result in bad immigration consequences, some don’t. And in a plea deal it might be possible to replace a harsh section by another, or reduce the number of sections in the conviction.

           Therefore, if a non-citizen is charged with a criminal offense in state court, they should first find the best criminal lawyer they are able to find – and then insist that this lawyer consult with an immigration lawyer before starting anything.

           This advice is correct also for Legal Permanent Residents (LPR), also known as Green Card holders.

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WITHDRAWING A PLEA DEAL

 

           Under California law, a non-citizen who got a conviction based on a plea deal, may, after completing his sentence, ask the criminal court to vacate the conviction and let them withdraw the plea deal – if they can prove that at the time of the conviction they (the non-citizen) did not completely understand the immigration consequences of the conviction.

           SOUNDS GOOD.

           However, there is a risk: after withdrawing a plea deal, the original criminal charge still stands. This is not cancelled, and the prosecutor may renew the original criminal case against the non-citizen. The risk: a more severe punishment.

 

EXPUNGEMENT? PARDON?

 

           Many states have a REMEDY called EXPUNGEMENT. The meaning of the word is “wipe out” or “clear up”. It means that a convicted person, after completing the punishment imposed, may request the court to expunge or wipe out the conviction. This may be very useful under State Law, removing the stain of the conviction from the person’s record. But for Immigration Law – which is Federal Law – this has no effect.

           If you are asked on an Immigration Form whether you have ever been convicted, you must mention even the expunged conviction. If you don’t, you will be accused of lying and will be denied your application.

           It seems that sometimes even an official PARDON from the Governor of your State, would not be respected by the Federal Immigration Service.

 

HOW TO COUNT TO $10,000

 

           If a non-citizen is convicted of a crime involved with fraud or deceit and the loss to the victim is more than $10,000, they are subject to deportation and are not eligible for the different remedies usually available to non-citizens in removal proceedings.

           What makes up the amount of $10,000? The total harm caused. If there were several victims, the Immigration Judge will not look at the loss that each victim suffered separately, but will add it all up. If there was more than a single participant in the fraud, the Immigration Judge will not divide the total loss by all Partners in crime, but will relate the total to the non-citizen.


ENCOURAGING AND INDUCING

 

           The Immigration Law makes it a crime to “encourage and induce” illegal immigration to the U.S. This raises the question whether turning spoken words into a crime does not clash with the First Amendment of the constitution of the U.S. which guarantees the right of “free speech”.

           Recently, the Supreme Court of the U.S. dealt with this issue and decided – in a very specific case – that there is no problem.

           A man in California by the name of Hansen, advertised that he could obtain U.S. citizenship for non-citizens by arranging for “adult adoptions”. (Of course, there is NO SUCH THING.) But 450 non-citizens were fooled by him, to pay him large sums of money – and when he did not deliver on his promises – he advised them to stay in the U.S.

_____He was charged in California with “encouraging or inducing” illegal immigration to the U.S. In his first trial, he was convicted. In his appeal to the 9th Circuit Court of Appeals in San Francisco, the conviction was overturned. The government appealed to the Supreme Court in Washington, DC. This court restored the conviction.

           The present opinion is that the Supreme Court’s decision is “narrow,” applicable only to circumstances similar to the Hansen case, which was involved with massive fraud. Meaning: if you tell your niece

“come to the U.S. on your visitor’s visa and later you’ll find a way to

stay”, or if an immigration lawyer advises a client “if you overstay your visa, you still have such and such possibilities and rights” – all this is still not “encouraging or inducing” illegal immigration. 

 

RISK OF DRINKING

 

           Many drunk driving convictions are considered by state court as relatively minor offenses. Many punishments are for ten (10) days of incarceration and some probation time. But immigration law is different.

           It has been established that having two (2) convictions for driving under the influence of alcohol makes you a person lacking good moral character.

           A non-citizen in certain deportation cases must prove that they are a person of “good moral character”. Two convictions for drunk driving will require the Immigration Judge to find that you are lacking good moral character and order your Removal (deportation).


FALSE CLAIM OF CITIZENSHIP

 

           The 9th Circuit Court of Appeals recently decided that not every false claim of U.S. citizenship by a non-citizen is a problem. Only such claims to obtain a benefit under immigration law.

           For sure: a claim of American citizenship on Form I-9 used to get employment, is a no-no. It may come back to “bite” you in any future contacts with the Immigration Service.


DANGEROUS TATTOOS

 

           If you are scheduled for an immigrant visa interview at an American Consulate overseas, you may be exposed to a risk that is sometimes a hidden risk.

           You are required to undergo a medical exam by a physician approved by the Consulate. The physician will report to the Consul about the tattoos you may have on your body, whether they are exposed to public view or hidden from view.

           The American Consul then has the authority to decide that your tattoos provide proof that you were a gang member and deny your visa. It is as if the tattoo is a membership card in a gang.

           Therefore, if you have a body tattoo, you should prepare a good explanation about the nature and purpose of those tattoos – to convince the Consul they were not proof of gang membership.


THE LAZY LAWYER

 

           This case happened in New York – and it is not an immigration case.

           We all heard about the wonders of Artificial Intelligence (AI), how it provides human-like response to complex questions.

           One lawyer in New York, representing a party in a civil case, had to submit a “brief” to the court, and the other party, arguing the merits of his client’s case.

           He accessed the now famous ChatGPT program, ordering it to prepare the legal brief for his case, based, of course, on some facts that he provided. He got in response a good looking brief, with a number of legal citations and case references to previous court precedents. Happily, without checking it, he submitted this brief to the court and to the other lawyers representing the opposing party.

           The other lawyers read the brief and, of course, tried to check the legal citations and precedents provided in support of this lawyer’s argument. They discovered that these legal cases did not exist and were simply invented by the ChatGPT program. (The first lawyer never checked. He simply submitted the “brief” as it came out of his printer.)

           It all ended up with many apologies to the court and the other lawyers, and a lot of shame for the lazy lawyer (and, probably, also a problem with his client).

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