Immigrants and Crime

Both the criminal law practitioner and the immigration practitioner have to be familiar with immigration laws’ impact on criminal defense of immigrants in order to obtain the best outcome for their clients.

The US Foreign Affairs Manual requires US consulates to revoke non-immigrant visas for DWI related arrests and convictions, section 403.11 – 3 (A) (U) (5). The regulation states that the alien is subject to a Watch List Promote Hit for an arrest or conviction for DWI which occurred within the last 5 years, 9 FAM 403.11-5(B). If nonimmigrant visas are revoked for DWI arrests it is impossible for the defendant to clear his name unless he is not convicted of DWI(?). So if you are in the US on a non-immigrant visa and get arrested for DWI/DUI your visa can be revoked. Good immigration and criminal defense counsel are clearly necessary if your client is accused of DWI.

In a decision by the Board of Immigration Appeals on an appeal by Allan Pollack, Esq. the Board found that the minimum conduct required under the New Jersey possession with intent to distribute marijuana statute, 2C: 35 – 5 is not an aggravated felony. Under federal law a drug trafficking crime is any felony punishable under the Controlled Substances Act. A state drug conviction qualifies as an aggravated felony if it is punishable as a felony under the CSA. Mr. Pollak’s client was charged with possession with intent to distribute between 1 ounce and 5 pounds of marijuana. Under federal law a single offense for distributing a small amount of marijuana for no remuneration is a simple possession offense, not a felony. The client had one ounce of marijuana, which is just under 30 g. The Board held that small depends on the context and that 1 ounce of marijuana was a small amount under federal law. The Board’s holding in Matter of Castro Rodriguez creates a presumption that 30 g is a small amount. The defendant was therefore eligible for cancellation of removal. In sum, if you have an ounce of marijuana which you intend to share with others, for free,  you may be convicted of a 3rd degree crime in New Jersey but you won’t be deported.

In Silva Trevino,26 I&N Dec 826 (BIA 2016) defendant was convicted of the offense of indecency with a child under Texas law. DHS charged defendant with removability as an alien who had been convicted of an aggravated felony for sexual abuse of a minor. The Board held that it must use the categorical approach to determine whether a state or federal crime is one involving moral turpitude. It also stated that the Board will focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction. (This is contrary to Third Circuit precedent, Jean- Luis v. AG, 582 F 3rd 462 (2009). Also, and importantly moral turpitude was defined as an intentional sexual conduct with a child as long as the defendant knew or should have known that the victim was a minor. Because the Texas statute was broad enough to punish statutory rape,  and in fact did punish statutory rape, categorically the crime committed by the defendant was not of moral turpitude. The Board held that the defendant was not inadmissible as he had not been convicted of a crime involving moral turpitude.

Silva Trevino is a very important case because it requires the application of the categorical approach to determine whether a particular offense is one of moral turpitude. The other important part of this decision is that it defines moral turpitude, at least here, as the intentional commission of the offense with knowledge that the victim was a minor. Statutory rape is an offense where the defendant does not know that the ‘victim’ is a minor. In sum, Silva-Trevino was going to be deported for the crime of sexual contact with a minor. But since the criminal statute also applied to statutory rape, the statute could not be categorized as involving moral turpitude. Statutory rape is, in my experience, sex by someone who is over 18 with someone under 18 who successfully passes herself/himself off as 18.

The point for criminal defense counsel is to know exactly what the immigration consequences are of a particular offense and how to analyze that offense to determine what they are. Nevertheless, running your analysis past a experienced immigration law attorney is highly recommended.

Christie charged with official misconduct

Today a judge in Bergen County found probable cause for a citizen’s complaint against Chris Christie, NJ’s governor, for official misconduct based on his failure to order his subordinates to end the lane closures on the George Washington Bridge. Testimony by David Wildstein at the federal Bridgegate trial shows that Christie was told of the lane closures on the George Washington Bridge while it was happening.

Official misconduct, NJ statutes 2C:30-2 states that a public servant commits official misconduct when, with a purpose to obtain a benefit for himself, or to injure or deprive another of a benefit, he knowingly refrains from performing a duty which is either imposed on him or is clearly inherent in his office.

Official misconduct is a 2nd degree crime which carries with it a presumption of imprisonment of 5 to 10 years.

Based on the testimony of David Wildstein Christie was attempting to get the mayor of Ft. Lee, a Democrat, to endorse Christie, a Republican, for re-election. Clearly Christie was attempting to obtain a benefit for himself.

It is inherent in the office of the governor to protect the safety of the citizens of New Jersey and not to knowingly endanger them.  Christie’s lack of action deprived the citizens of Ft. Lee and others of the benefit of good government as the lane closures resulted in massive traffic jams  in Ft. Lee just as the school year was beginning. The massive traffic jam made it extremely difficult for school buses filled with children to get to their destinations, ambulances to bring people to hospitals, and the police to do their jobs and respond in emergencies, among other dangers created.


Driving While Intoxicated in New Jersey

Driving While Intoxicated and driving under the influence are the same thing. These laws punish operation of a motor vehicle while under the influence of substances-alcohol, or drugs, or both-such that your ability to operate the vehicle is impaired in any way.

There are two levels of intoxication which affect the punishment for a first offense, a blood alcohol reading of .08 and below .10, and at, or above .10. The former results in 3 months loss of license; the latter 7 months up to one year. Any offense where the intoxicating substance is drugs-of any kind, legal or illegal-results in a sentence of 7 months to 1 year loss of license.

Three things you need to know about DWI in N.J.

  1. If you are convicted of DWI you cannot drive in N.J. for any reason, including a medical emergency. There is no work license, or day license, or any other exception that permits you to drive. If you drive, you will go to jail or prison. N.J does not have diversionary program for even first time DWI, unlike Pennsylvania, which has ARD, and New York, which has a similar program.

For a 3 month suspension this is manageable; for 7months to 1 year it is harsh. If you commit a second offense within 10 years of the first, you lose your right to drive for 2 years. If you commit a third offense within 10 years of the second, you lose your right to drive for 10 years; and you must go to jail, or prison, for 180 days. There are no credits available for this jail time such as work credits or good time credits; you go for the full 180 days.

If you are licensed in another state you may be able to get a work license if that state provides for one.

  1. You are NOT entitled to a jury trial, even for a third or subsequent offense. A town judge, for each town, appointed by the town, decides whether the prosecutor has proved his case beyond a reasonable doubt.

The town receives revenue from each conviction. Some towns select their judges based upon how much revenue they produce; and they may replace a judge for not producing enough revenue.

Further, the judge becomes quite familiar with the local police. While familiarity may breed contempt, that is rarely the case in these courts. Often the judges are quite friendly with the local police. So, if there is testimony in which you and the police disagree about a fact, guess who usually wins.

The reason N.J gets away with not giving a jury trial for DWI is because an English lawyer named Blackstone said “petty offenses “ are those which are punished by 6 months or less jail time (he said this before the Constitution was adopted). The Supreme Court approved no jury trial if the penalty is 6 months in jail or less in Blanton v. North Las Vegas, 489 U.S. 538 (1989); so, as long as the jail time cannot exceed 6 months, you are not entitled to a jury.

This is crazy. There is nothing “petty” about 6 months in jail, or even 10 days. You lose your job, your wife and kids have to visit you while you sit behind bars, and yet you are not a criminal.

  1. The mandatory surcharge of $1,000 per year for three years must be paid or you will not get your privilege to drive restored; this is in addition to fines. If you don’t pay you do not get your driving privileges back, even if you are licensed outside of N.J.

I represent a woman in Florida who cannot get her Florida license restored because she is suspended for not paying her surcharge in N.J. (after a DWI conviction in N.J). She was licensed to drive in Florida, but Florida suspended her driving privileges for not paying N.J.’s surcharge when N.J. found her. N.J., like most states, is hungry for revenue, and will look for you wherever you live.

The sole remedy is a chapter 13 bankruptcy which may discharge your obligation to pay surcharges.

 There are other severe consequences for DWI in N,J, which I will cover in another blog.

Mitchell E. Ignatoff, Esq.

Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney.





Posted in DWI

Welcome to My Blog

When you walk in to my office I guarantee two things. I will be brutally honest about your case, and if I take you on I will work my hardest to secure a successful outcome.

At the law firm of Mitchell E. Ignatoff you meet with me. I am the attorney who is handling your case. Make no mistake, your case is important. When you are charged with a crime I know there is a lot at stake. I never forget that. I am willing to work and work at it because I fully understand that your freedom and even your future is on the line.

As a lawyer who is a former prosecutor and one of 256 Criminal Trial Attorneys certified by the New Jersey State Court, I am not afraid to go to trial if it is necessary to secure a favorable result. We know that legal knowledge alone is not enough. Successful criminal trial experience is essential to protecting your liberty. Long term relationships and first hand knowledge of the judges and clerks and how the system works are indispensable in securing the right result.

I am passionate about each case I take on. I love the work and defending people. Many of my cases have resulted in reduction of our client’s exposure or an acquittal. I believe successful defense is about the details.  You have to pursue all possible legal avenues. You must have superior trial skills. This is how for 25 years I have consistently provided our clients with the greatest opportunity for a successful outcome.

A criminal charge is scary. You can lose your freedom, your right to drive or have a felony criminal record. We pride ourselves on the highest level of client service. Whether its DWI, fraud, robbery, murder, juvenile crime, or motor vehicle violations, we believe that returning phone calls, compassion and understanding go hand in hand with legal expertise when it comes to representing those charged with a crime.

If you or someone you know are charged with a criminal offense in New Jersey or New York please call the law offices of Mitchell E. Ignatoff at 201 664 8500 or email us at Mitchell to schedule a free consultation at one of our convenient offices in Englewood Cliffs and Bridgewater New Jersey.