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Pre-Trial Diversions Ruled Final Convictions For Non Citizens

As a criminal defense attorney it is always my goal to ensure that my clients have the best possible representation and receive the best possible outcome following an accusation that they committed a crime. A close review of the police report and an analysis of the circumstances of the arrest will help the attorney determine if the case goes to trial, or if the client will be better served by accepting a plea bargain. The client makes the ultimate decision, but the attorney should be able to guide the client to the best decision for their particular case.

A normal plea bargain negotiation gives the client a few options to choose from. The plea bargain deal a client is offered will depend on the location (jurisdiction) of the criminal charge, the discretion of the prosecutor, the severity of the crime and the facts of the case, and a review of the client’s criminal history. This analysis gets more complex if the client is not a US citizen.

A non citizen is a person who is either in the United Sates with legal status like a Legal Permanent Resident, or a non immigrant visa like a student or tourist, and sometimes people who have no status and are considered undocumented. For a person with any of these statuses, a plea bargain can have adverse consequences if the case is not handled appropriately.

Recently, the Board of Immigration Appeals (BIA) delivered the opinion in Matter of Mohammad, 27 I&N Dec. 92 (BIA 2017) that pre trial diversion programs are convictions for purposes of immigration. In the context of a US Citizen client, a pre-trial diversion plea allows the client to accept responsibility for his or her actions, pay some fines/fees, do a combination of intervention classes, community service, and a pre determined time period of supervision by an agency tasked with supervising this program. If the client successfully completes the program, the case goes away by the prosecutor dismissing the case. For the US Citizen this type of plea is going to be an excellent way to dispose of the case and has the possibility of maintaining a clean record.

However, under Matter of Mohammad, a non citizen will see that a pre trial diversion program will end in a final conviction once the criminal record is reviewed by an immigration judge. Matter of Mohammad clearly states “Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.”

So, if a non citizen is arrested, it is very important that the non citizen understand all the aspects of the case and pay special attention to the type of plea bargain that is being offered. A “good” deal for a US Citizen, can be a disaster for an immigrant client.

Analysis: Trump’s Executive Order of March 6, 2017

Protecting The Nation From Foreign Terrorist Entry Into The United States?

On March 6, 2017, President Trump’s administration released the anticipated and revised second Executive Order (EO). It specifies conditions of a travel ban for nationals of six Middle Eastern countries. The following is our analysis of the new order.
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Legal Trap Identified In Law For Green Card Sponsors

US Citizen Spouses who sponsor an alien spouse for a green card in the United States should be aware of the requirements and obligations involved with the Affidavit of Support.

Sponsors of an immigrant spouse are required, during the process of gaining legal resident status to sign an Affidavit of Support. It’s one of the numerous documents involved in the process and, as with many documents of this nature, has details that are quite easy to over look. Read more

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Advocating For A Path To Legal Status For The Undocumented

Should there be a path to legal status for undocumented individuals in the U.S.? The question is polarizing, controversial. Regionally, emotions can run even higher. Mass media and groups of acquaintances reinforce founded and unfounded fears based on speculation. Rogers Garcia Patton believes that every person should decide based on impartial, accurate information. To that end, we enlisted the knowledge of our resident immigration authority, Albert Garcia. Read more

Facts Regarding Syrian Refugee Issues

As a law firm that works on cases dealing with immigration, we are quite interested in the Syrian refugee situation as we regularly see cases involving individuals and families wanting to enter the United States for a variety of reasons. In each case a dizzying array of laws and regulations need to be applied to satisfy the requirements of United States Law. Read more

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Rights and Responsibilities of (Same-Sex) Marriage

Although same-sex marriage was already legal in 37 states ahead of last weeks landmark ruling from the Supreme Court, the impact felt across the media landscape is stunning. Whether you celebrate or scorn, the legality of the matter is legit and brings to light new legal standing for the LGBT community. Read more

Immigration Law Changes: Now What?

As you may know, the recent changes in immigration law will affect millions of undocumented adults who have lived in the United States for years. However, many have questions about what to do next. Read more

Changes in Immigration Law

The following is an overview of the recent changes to immigration law in the United States.

A Shift in Removal Priorities

The policy builds on existing law and memoranda that will effectively use resources to interdict persons Read more

Seeking Asylum?

The United States is obliged to recognize valid claims for asylum under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. As defined by these agreements, a refugee is a person who is outside his or her country of nationality (or place of habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Protected grounds include race, nationality, religion, political opinion and membership of a particular social group. Read more

Status Adjustment: Marriage

The following is a basic step-by-step overview for legally adjusting your status or that of your spouse’s:

1) File I-130 – This is the first step in helping your spouse migrate to the United States. The I-130 establishes your family relation to the petitioner, or person who is attempting to have you emigrate, by submitting evidence to that end. For a petition based on marriage, you must submit your marriage certificate, any birth certificates of children born to the marriage, and letters from people who know about you and your marriage. Eligible family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustment of status to a lawful permanent resident. Read more