Jan 15

What Is Our Country’s Immigration Forecast under Republican Presidential Candidates: Rubio, Cruz and Trump?

During Tuesday night’s debate, the most vociferous of the Republican presidential candidates on the issue of immigration were Senator Rubio, Senator Cruz, and Trump.  This was not surprising considering the recent national debate over admitting Syrian refugees, as well as the rising national threat posed by ISIS.   At first glance it seems the three candidates, all sharing the same party, have similar views on immigration reform; however, during the debate their different policies were highlighted.

Rubio: I have a three-step plan [towards legalization][1]

Under Senator Marco Rubio, the twelve million undocumented immigrants in the United States will be offered a form of amnesty or a three-step path towards legalization (assuming they have not committed a serious crime or resided in the US for a short period of time).  First, such immigrants will have to come forward and be registered.[2]  The number of immigrants who take an affirmative step forward depends on the definition of serious crimes.[3]  If the definition is too broad, and includes misdemeanor and drug offenses, then Senator Rubio will miss reaching a majority of the twelve million (This is the current state of affairs with DACA).  For those that do step forward and become registered, they will be treated as quasi-LPR.  Similar to a LPR, they will have to pay taxes; however, unlike a LPR, their legal status is precarious and short term – like a person on an immigrant visa.  Only once these immigrant visa holders pass a ten-year probationary period, will they be able to call themselves a green card holder.

Cruz: I do not support legalization, never supported legalization[4]

Under Senator Ted Cruz, there will undoubtedly be a more physically secure border in the form of a wall built along the Mexican-US border – similar to the security wall in Israel-as well as increased border patrol and surveillance.  Although Congress has promised a wall to Americans in the past, Senator Cruz will make it a reality, as enforcement is his top immigration priority.  In fact, he will be amending the immigration laws to provide for more enforcement- by adding federal crimes such as a misdemeanor for one visa overstay and a felony for two.

With regards to the twelve million undocumented immigrants, their status will remain, as it is – in the twilight zone- or even worse, as he plans to end all of the amnesty policies of Obama.  There is no mention of this group of immigrants in his 11-page immigration plan.[5]  Rather, during the debate, he prided himself on his history of leading the fight against Senator Rubio’s amnesty bill.

Trump: Send back if illegal and come back illegally[6]

Like Senator Cruz, Trump also has a strong arm on enforcement- there will undoubtedly be a wall along the Southern border.  How

ever, unlike Senator Cruz, Trump is very clear about what he will do to the twelve million undocumented immigrants – deport as many of them

as possible, particularly anyone who has a criminal record.  However, he offers a

middle ground between Senator Cruz and Senator Rubio – by suggesting a process for this group of immigrants to come back legally.  This is similar to the process faced by immigrants today who are found inadmissible based upon the three and ten year bars- they must leave the US, wait their turn, and then apply to return with a waiver.   


[1] CNN/Salem Republican Debate; The Venetian Las Vegas; aired on CNN (Dec. 15 2015).

[2] https://marcorubio.com/issues-2/marco-rubio-immigration-plan-border-security-legal/

[3] Id.

[4] CNN/Salem Republican Debate; The Venetian Las Vegas; aired on CNN (Dec. 15 2015).


[5] See https://www.tedcruz.org/cruz-immigration-plan/

[6] CNN/Salem Republican Debate; The Venetian Las Vegas; aired on CNN (Dec. 15 2015).


Permanent link to this article: http://blog.weismanlawyers.com/what-is-our-countrys-immigration-forecast-under-republican-presidential-candidates-rubio-cruz-and-trump/

Apr 07

Did You Take An Immigration Safe Plea?

            If you were in criminal court between March 31, 2010 and December 1, 2013, it is highly likely that your plea in criminal court is not safe from immigration consequences and you may have the right to challenge it.  This is because the burden to inform the defendant of immigration consequences to his plea lied with defense counsel.   Now, however, effective December 1, 2013, the burden is shared by the Court, as required by the amendment to Rule 11 of the Federal Rules of Criminal Procedure.

The amendment was undertaken in light of Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which held that a defense attorney’s failure to advise the defendant concerning the risk of removal fell below the objective standard of reasonable professional assistance guaranteed by the Sixth Amendment.  That is right- as a non-U.S. citizen, YOU still have rights guaranteed to you by the U.S. Constitution.  Although Padilla speaks only to the duty of defense counsel, not the Court, to warn the defendant about immigration consequences, the judicial warning is supported by the  Supreme Court’s recognizition of those consequences.

How will the Court now protect you plea from immigration consequences based on this amendment?  By telling you directly before you enter a plea, “If you are convicted, and you are not a United States citizen, you may be removed from the United States, denied citizenship, and denied admission to the United States in the future.”  But, this warning follows many other warnings of direct consequences of a plea, which means that you may not be paying much attention.  Also, as my client once told me, his head was spinning when convicted that day, it was a very traumatic moment, such that he could not remember what the Judge told him.

So, if your head is also spinning on the day of your plea, how can you ensure that you do not plead guilty to an offense that carries severe immigration consequences?  After all, as the Supreme Court correctly pointed out in Padilla, “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.”  My best answer to this question is for you to hire a criminal attorney who is well versed in immigration law, or will proactively seek the advice of immigration counsel before entering your plea.

Hiring a defense attorney who can proactively work out a safe plea is essential, especially after this new amendment.  While it appears that the new amendment protects you, it is actually to your detriment.  Rather, the new amendment protects the government and the Court from a defendant’s motion to vacate the conviction.  This explains why the National Association of Criminal Defense Lawyers wanted the amendment to be withdrawn.  How many defendants will actually change their plea after hearing this warning from the Court?  None.  The warning is too general to speak to any one defendant about the specific immigration consequences of their plea.

Permanent link to this article: http://blog.weismanlawyers.com/did-you-take-an-immigration-safe-plea/

Feb 12

Can an LPR erase their criminal history with the 212(h) waiver?

A 212(h) waiver can be a powerful tool used in your immigration case to help you stay or enter the United States.  After all, it can erase your crime involving moral turpitude (“CIMT”), multiple criminal convictions, prostitution and commercial vice offense, and simple possession of 30 grams or less of marijuana.  Oddly enough, this remedy cannot be used by all non-citizens who meet the statutory conditions.

The Board of Immigration Appeals, which reviews decision by the Immigration Court, denied Ms. Negrete-Ramirez a 212(h) waiver.  Ms. Negrete-Ramirez is a non-citizen who was admitted to the United States on a visitor visa (B-2) and later adjusted her status to a lawfully admitted permanent resident (“LPR” or aka: green card holder) without leaving the United States.  Four years after becoming an LPR, Ms. Negrete-Ramirez pleaded guilty to two counts of committing a lewd act upon a child and removal proceedings were subsequently brought against her for this criminal ground of inadmissibility.

The Board denied Ms. Negrete-Ramirez a waiver for her criminal conviction because they found that she fell within the LPR exclusion to the 212(h) waiver:  ”[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if [] since the date of such admission the alien has been convicted of an aggravated felony . . . . INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added).

But, why exclude Ms. Negrete-Ramirez who crossed the border into the U.S. as a visitor not an LPR?  Isn’t that what Congress intended when they said “admitted to the United States”? Where a non-citizen is unhappy with the decision given by the Immigration Court or the Board of Immigration Appeals, s/he can appeal to the highest court in that state.  That is exactly what Ms. Negrete-Ramirez did.  Although a Circuit Court does not have the power to hear all cases that non-citizens appeal, in this case, the 9th Circuit did accept Ms. Ms. Negrete-Ramirez’s case and deliberated over the following question:

Whether “admitted” as understood in § 212(h) includes Negrete-Ramirez’s post-entry adjustment of status?

To resolve this big question, the Court opted to apply the ordinary, contemporary, and common meaning of the term “admitted” versus the definition provided in the Immigration and Nationality Act.  The Court held in Ms. Negrete-Ramirez’s favor, finding that Congress intended the waiver to be used by LPRs who adjusted their status AFTER entering the United States.

So, what do we learn from this case?

  • Not all green card holders or LPRs are barred from using a 212(h)waiver,
  • Only LPRs who physically entered the U.S. as an LPR AND either: (1) were convicted of an aggravated felony after becoming an LPR, or (2) did not reside continuously in the U.S. as LPR for at least 7 yrs;
  • If you became an LPR after physically entering the U.S. and crossing the border, then you can still use the 212(h) waiver. 


*For more information, please see Juana Negrete-Ramirez v. Eric H. Holder, Attorney General (Case no. 10-17322, 1/21/14).


Permanent link to this article: http://blog.weismanlawyers.com/can-an-lpr-erase-their-criminal-history-with-the-212h-waiver/

Feb 11

Can an overturned conviction be used as evidence for Immigration Court?

Let’s suppose you are in Mr. Chavez-Reyes’ shoes:

  • Non-citizen/immigrant
  • You are unlawfully stopped by police
  • Charged with a federal crime,
  • Pressured to plead to the crime to avoid a higher sentence that could be imposed at trial, and
  • Find out from a new attorney that you were in fact unlawfully stopped;
  • Appeal your conviction;
  • You win – your conviction is overturned!
Does this story have a good ending?  Unfortunately not.
In Mr. Chavez-Reyes’ case, the same court (9th Circuit)
who overturned Petitioner’s conviction for possession of cocaine with intent to distribute, subsequently used that same conviction as evidence that he should be removed.
How is this possible? Unlike many immigration statutes, which require a criminal conviction before imposing immigration consequences, § 1182(a)(2)(C)(i) or  INA  §212(a)(2)(C)(i) requires only a “reason to believe” that the non-citizen engaged or assisted in illicit trafficking of drugs.y, not due to the current state of immigration law.  As a general rule, a voluntary guilty plea to criminal charges is evidence that the petitioner did, in fact, engage in the charged activity, even if the conviction is later overturned for a reason unrelated to voluntariness.  This includes convictions that are expunged or cleared from your record.

I am particularly troubled by this case because the Court is saying that Mr. Chavez-Reyes would have pled guilty to the crime regardless of the fact that his arrest is was unlawful.  The high court seems to not appreciate how it feels to be an immigrant or non-citizen the criminal justice system.  For many of these non-citizens, it may be their first contact with the system, time in jail, and separation from their families.  They are desperate to plead as quickly as possible in order to simply get out of jail and be reunited with their families.

Had Mr. Chavez-Reyes know that his arrest was unlawful by his public defender or private attorney, he surely would have given a second though to pleading guilty.  In fact, he may not even had to make a decision to enter a plea as many cases are dismissed at this stage through what is known as a Motion to Suppress evidence based on unlawful arrest.

How do you protect yourself from this low “reason to believe” standard?  By hiring an attorney for criminal court that is competent in both immigration and criminal law.  Unfortunately, hiring just a criminal attorney, without immigration experience, is risky because the attorney does not have your long term interest in mind.  Whereas, an attorney who sees the big picture, extending all the way to Immigration Court, will aggressively challenge the charges early on in the process before you plead guilty.

*For more information, see Manuel Chavez-Reyes v. Eric Holder, Case no. 10-70776, 9th Cir. Published Opinions (1/27/2014)

Permanent link to this article: http://blog.weismanlawyers.com/can-an-overturned-conviction-be-used-as-evidence-for-immigration-court/

Feb 11

Does the Trust Act Actually Protect the Detained?

Yes, the new law is already protecting immigrants who are suspects of crimes.  I recently had the pleasure of seeing the act in action this past week with my own client.  We anticipated that the Sheriffs of San Mateo Maguire Jail would transfer my client to immigration custody since had an immigration hold.  This was the normal order of business.  However, instead, the sherrifs took the time to individually evaluate my client’s case and released him in accordance with the new law known as the Trust Act.

The Trust Act was signed on October 5, 2013 by Governor Brown of California.  The law recognizes and addresses the following issues with immigration detainers (requests from Immigration and Customs Enforcement (“ICE”) to keep a suspect in custody):

  • Non-citizens who are victims of crime are afraid to report crimes to police because they will be subject to deportation;
  • Non-citizens are detained by immigration unlawfully because no evidence is needed by ICE to to request to hold a non-citizen in custody (whereas, for criminal warrants, a police officer must have probable cause that a crime occurred).
  • Each county is enforcing immigration detainers differently, there is unequal treatment of immigrants cross California.
How does the Trust Act address the problems mentioned above?  By prohibiting Sherrifs from transferring a non-citizen to ICE after they complete their criminal custody unless certain conditions are met.  These conditions include a long list of serious and violent crimes.
Who is protected from the Trust Act?
  • Non-citizen who is arrested for a crime, but no charges are brought;*
  • Non-citizen who is charged with a crime, but charges are dismissed;*
  • Non-citizen who pleads guilty to an infraction or misdemeanor.*
What does this mean for you?  If you are shopping for a criminal attorney, make sure to find one that has experience in immigration law.  This way, you can save money from having to post immigration bail and precious time by being able to see them right after they complete their immigration sentence.
In my client’s case, he was charged with two felony counts of aggravated assault with a deadly weapon.  Had he pled to them, he would have been immediately transferred to ICE and subject to mandatory detention (no possibility for bail).  Rather, he was released from custody because we reduced his charges to one count of misdemeanor simple battery.


*Does not apply if non-citizen had a conviction for a felony on record or within last 5 years of criminal custody, a wobbler (crime that can be charged as misdemeanor or felony).

Permanent link to this article: http://blog.weismanlawyers.com/does-the-trust-act-actually-protect-the-detained/

Mar 19

Is Blade Runner’s killing lawful or unlawful?

Oscar Pistorius, the South African Paralympic and Olympic sprinter, is being accused by prosecutors of premeditated murder of a model name Reeva Steencamp.  His defense?  Mr. Pistorius did not intend to kill his girlfriend; rather, he thought there was an intruder.

For a case that has just began, I am surprised by how much evidence has already been presented.  Defense attorneys made the unusual move of presenting to the court Mr. Pistorius’ sworn statement describing his defense.  This move is unusual because it locks Mr. Pistorius into a position that could be contradictory to future evidence that is found or tested.  Defense attorneys were likely pressured by Mr. Pistorius to do whatever it took to release him so that he could save his celebrity image.

What relevant evidence has been revealed so far?

  • three bullets shot;
  • blood stained bat found in Mr. Pistorius’ possession;
  • autopsy shows wounds to skull allegedly consistent with beating by bat;
  • bullet holes through small bathroom door, allegedly at level where person would have to shoot down and be standing up;
  • one neighbor allegedly heard arguments before shooting;
  • another neighbor allegedly saw light on before shooting;
  • Mr. Pistorius allegedly put prosthetic legs on before killing.

Under California law, could Blade Runner’s killing be considered lawful?

Yes, his killing could be justified under the theory of self defense if he (1)  reasonably believed that he was defending a home against someone who intended to commit an act of violence against someone inside; (2) reasonably believed the danger was imminent and (3) reasonably believed the use of deadly force was necessary to defend against such danger; and (4) used no more force than was reasonably necessary to defend against the danger.

Here, Mr. Pistorius believed he was defending his home against an intruder.  This belief is reasonable because he resides in South Africa where there are frequent break-ins.  He reasonably believed the danger was imminent because he heard someone in his bathroom, right next to his bedroom.  His belief, however, to use deadly force against such danger was not clearly reasonable because he did not see the intruder with any sort of deadly weapon.  Lastly, there is definitely an issue with the amount of force he used to defend against the danger.  Three shots combined with beating on the head by a baseball bat is arguably too much force.

This particular defense is known as the castle doctrine and designates the home as a place where a person enjoys certain protection and immunity from prosecution.  Although a person is not justified to use deadly force to protect property; violence threatened against the home is treated differently under the law.

If Blade Runner’s killing was unlawful, what type of homicide is he guilty of?

  • First Degree- acted willfully, deliberately, and with premeditation.  Mr. Pistorius arguably acted willfully or with the intent to kill since he fired a lethal weapon at Ms. Steencamp  multiple times, and within close range.  Under California law, the lethal weapon must be fired in a manner to inflict mortal wounds and this is not yet clear from the evidence.  Moreover, the evidence shows that he beat Ms. Steencamp’s head with a baseball bat, which is another lethal act.  The issue is whether Mr. Pistorius acted with deliberation and premediation which can be found by three different factors – planning activity, motive and the manner of killing.  If evidence is presented that they he had a history of domestic violence with her-  providing the motive of control, or that he was unprovoked- providing rationale behind his decision, then deliberation and premediation may be found.
  • Second Degree- intended to kill but was provoked.  Two separate witnesses may be able to provide evidence that the killing was caused by provocation – one that will testify the lights were on and the other that there was an argument.  However, the defense has already given up this argument by claiming that he did not know the victim was Ms. Steencamp.  The prosecution will not argue second degree when they could argue first degree.  Also, questionable that a verbal argument would qualify as sufficient provocation to kill.
  • Voluntary Manslaughter- (1) killed someone because of a sudden quarrel or in the heat of passion, or (2) due to imperfect self defense.  Heat of passion murder is exemplified where a husband comes home to find his wife sleeping with another man and kills the man on the spot.  In this case, the defense could argue that Mr. Pistorius was provoked by the intruder’s illegal entry in his home.  However, there is an issue as to whether he acted from emotion since he arguably  put his prosthetic legs on before firing- showing rationale.  Imperfect self defense means that either Mr. Pistorius’s belief of imminent danger or his belief that deadly force was necessary was unreasonable.
  • Involuntary manslaughter- does not intend to kill, but rather acts with an extreme amount of negligence.  The typical case of involuntary manslaughter is where a person drives drunk and gets into a fatal car accident.  The difference between involuntary manslaughter and the other homicide offenses is whether the defendant was aware of the risk to life that his actions created.  Here, there is no case for involuntary manslaughter as Mr. Pistorius used a gun and a bat to beat Ms. Steencamps head – both lethal actions.








Permanent link to this article: http://blog.weismanlawyers.com/is-blade-runners-killing-lawful-or-unlawful/

Feb 28

What does a dismissal mean for you?

Today I had the good fortune to hear the Judge tell my client the good news- that her case was dismissed!  My client was facing felony charges for auto-theft and receiving stolen property.  The dismissal was due to a motion by the District Attorney (“D.A.”), which means the D.A. was admitting to the Court that it made a mistake and should not have filed the charges in the first place.

However, the joyous news of dismissal was tempered by the Judge when he said, “the proceedings against you are over FOR NOW.”

Why did the Judge say, for now?  Doesn’t a dismissal mean the case is over forever?

It depends.  If the charge that is dismissed is a misdemeanor, then yes – the D.A. cannot refile the case again.  But, if the charge dismissed is a felony, the D.A. can refile as long as there have not been two dismissals and certain exceptions do not apply.

What if the charge(s) dismissed include both a misdemeanor and a felony?  The felony rule mentioned above is applied to both charges.

What if the charge(s) dismissed are a wobbler – a crime that can be charged as either a felony or misdemeanor?  This is percisely the case here.  My client was charged with two felonies that we successfully reduced to two misdemeanors.  Unfortunately, in this situation, even though misdemeanors are dismissed, the felony rule still applies.

Does the D.A. have to refile within a certain time frame?

Yes, even though the D.A. has the right to refile the case, their right may have expired based on the statute of limitations or time limit they have to file the case.  The time for the statue of limitations generally starts ticking from the date of the offense and varies based on the type of offense charged.  Here, both auto-theft and receiving stolen property have a three year statute of limitations in California.

What is the likelihood that the D.A. will refile the case?

Once you hear the word dismissed you should feel relieved and as though the case is over FOREVER.  Unless your case involves a serious or violent felony or a lot of press coverage, it is unlikely the D.A. will choose to refile your case.  This is because the D.A.’s office is simply swamped with new cases to file.  In my client’s case, it is unlikely the D.A. will refile because they would have to refile the charges as a felonies and the court already reduced the charges to misdemeanors.

Is a not guilty verdict better than a dismissal?

Absolutely.  A not guilty verdict means that a jury was empaneled or a judge began to hear evidence and the same case cannot be refiled.  If the same charges were refiled, the D.A.’s office would likely be violating your 5th Amendment right against double jeopardy.

Permanent link to this article: http://blog.weismanlawyers.com/what-does-a-dismissal-mean-for-you/

Jan 22

Are You A Former Felon In Need of Immigration Relief?

Depending on the type of felony and your record of conviction, you may be eligible for immigration relief.  In other words, just because you have one or more felonies on your record, you are not automatically barred from immigration relief.

Meet Mr. Tapia-Cruz, a native and citizen of Mexico and a lawful permanent resident (“LPR”) of the United States since 1990.  He had two California convictions on his record: (1) felon in possession of firearm, and (2) identity theft.  Regardless, the Ninth Circuit, overturning the lower court’s decision (called Board of Immigration Appeals), found that Mr. Tapia-Cruz was still entitled to immigration relief called Cancellation of Removal.

To make this holding in Mr. Tapia-Cruz’s favor, the Ninth Circuit made the following findings of law and fact:

  • California statute for felon in possession of firearm is NOT categorically an aggravated felony (includes conduct such as custody and control of firearm that would not be considered aggravated felony);
  • Facts of Mr. Tapia-Cruz’s case are not clear as to whether he engaged in shipping, transporting, possessing, or receiving any firearm or ammunition;
  • California statute for felon in possession of firearm is categorically (always) a firearms offense;
  • Mr. Tapia-Cruz is removable due to firearms offense, but still eligible to apply for Cancellation of Removal because not convicted of aggravated felony.

Although this holding was not published (cannot used as authority in future cases), it is important  to notice that the Ninth Circuit limited its fact finding to the record of conviction- complaint, abstract of judgment, sentencing memorandum- and not beyond, such as the police report (Silva-Trevino approach for crimes involving moral turpitude).

if you are interested to know if your felony would bar your from immigration relief, or curious to know what Cancellation of Removal is, please visit www.weismanlawyers.com.

Permanent link to this article: http://blog.weismanlawyers.com/are-you-a-former-felon-in-need-of-immigration-relief/

Jan 09

Would You Like To Erase Your Unlawful Presence?

There is good news for you if:

  • You are at least 17 years old,
  • Physically present in the US,
  • Entered the U.S. illegally (ie: without being questioned at border, with coyote, by river),
  • Have a U.S. citizen spouse or parent,
  • Your departure from U.S. would case extreme hardship to your spouse or parent, and
  • Unlawful presence is the only reason why you cannot apply for green card.

The federal government has just published a new rule that will allow you to erase your unlawful presence in the U.S. by filing out a form.  After you are given a waiver, you can apply immediately for a green card from a U.S. consulate in your home country.

Before this new rule came out, non-U.S. citizens had to interrupt their life in the U.S. and wait between 3-10 years outside of the country, depending on the amount of time they spent out of status in the U.S.  Many families suffered emotional strain, financial hardship and dangerous conditions.  Others were simply unwilling to take the risk and leave the U.S. to apply.  This new waiver fixes the problem that should not have existed before.

Although this new law will significantly shorten the amount of time that you have to be separated from your loved one, it does not make getting the green card any easier.  You will still have to prove that your U.S. citizen spouse or parent will suffer extreme hardship.  The term, extreme hardship, is not defined by the immigration code or federal courts.  Rather, it must be proven based upon the facts and circumstances of each case.

Since extreme hardship is a difficult legal standard to meet, it is smart to hire an immigration attorney who can put together the best evidence to support your case.

Permanent link to this article: http://blog.weismanlawyers.com/would-you-like-to-erase-your-unlawful-presence/

Dec 30

Are You A Non-Citizen Who Has Been Arrested?

If so, you may be interested to find out how you will be affected under the new policy just put into place by Immigration and Customs Enforcement (“ICE”) on December 21, 2012.

YOU WILL NOT be transferred from local police custody to federal immigration custody if you do not have a prior felony or misdemeanor conviction and are arrested for any of the following common offenses:

  • Possession of controlled substance (misdemeanor)
  • Under the influence of controlled substance
  • Drunk in public

    ICE’s Director, John Morton, who wrote the new policy.

  • Minor in possession of alcohol
  • Burglary
  • Trespassing
  • Theft – grand and petty
  • Auto theft (misdemeanor)
  • Embezzlement
  • Possession or use of fake driver’s license
  • Resisting arrest
  • Reckless driving
  • Driving on suspended license
  • Lewd conduct in public
  • Violating restraining order
  • Stalking (misdemeanor)
  • Loitering
  • Disturbing the peace
  • Possession of burglar tools (misdemeanor)
  • Receiving stolen property (misdemeanor)

While this may seem like good news, the policy is actually the same news that was given by ICE’s Director back in June 2010, just in different language.  Let’s examine why this “new policy” is really just the same policy:

  • A lot of the offenses listed above are called “wobblers” which can be charged as felonies or misdemeanors.  Although as a misdemeanor, ICE would not place a hold on you, as a felony they would!  The majority of wobblers are charged by the D.A. as felonies due to the type of controlled substance, value or property, or suspects criminal record.
  • The D.A.’s Office is notorious for overcharging suspects.  This means, it is unlikely you will just be charged with just one of the offenses that would make you safe.  For example, you will likely be charged with Reckless Driving AND DUI – which would give ICE the authority to place a hold on you.
  • ICE is only looking at the complaint or charging document when making a decision on who to detain.  Thus, they just see the words “burglary” or “resisting arrest” with no knowledge of whether the crime alleged involved violence, threats or assault.  If they decide that it did, guess what: they can detain you!
  • Policy does not apply to the immigration agents at the border, called CBP.  This is significant because many immigrants get detained at the border or paroled in due to an old conviction or arrest that had already been resolved and dealt with by the justice system.
  • ICE can still maintain a hold on you even if you are not convicted!  This means, that even after justice is served and you have your day in court, you will not be released.  Rather, ICE can ask the local jail to hold you for 48 hours more so they can transfer  you to their custody.

Note: This policy of placing a hold on you after arrest, not after conviction, goes against ICE’s own priority that states: ICE’s finite enforcement resources are dedicated, to the greatest extent possible, to individuals whose removal promotes public safety, national security, border security, and the integrity of the immigration system.  

What is the Good News?

Since it is always important to end on a good note, let’s talk about the positive aspect of the “new policy”.  The new policy will bring greater transparency to ICE holds or immigration detainers by developing a new form by which the ICE officer must specify exactly which ground the individual is being detained.

Permanent link to this article: http://blog.weismanlawyers.com/are-you-an-immigrant-who-has-been-arrested/

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