Driving under the influence of drugs - immigration consequences

Source: http://www.nwaonline.com/news/2012/jun/24/driving-drugged/

What happens if you are convicted of a DUI (driving under the influence) based on drugs. An interesting discussion. If you have digested a drug, are you in possession of that drug for immigration purposes?

Steve presented the following scenario on Friday:
A client of ours, pled to that DUI (Xanax) in Arlington. He’s been LPR for 12 years, and the only things on his record are a Reckless Driving and the DUI, both from 2016. He wants to know about naturalization. My thought on this is that his only potential question has to do with Good Moral Character, and he should probably get some help explaining that he is a person of good moral character when he submits his N-400.

Here are Steve's discussion points:

a. First of all, don’t travel outside of the US right now. He can totally get picked up on the way back in.
b. Get everything associated with the DUI (ASAP, Restricted OL, etc.) taken care of and get clear of “court supervision,” which will be done in about 12 months.
c. Once he is fully clear of the DUI matter, get his ass into our office so we can help him get to work on his N-400. I wonder if you think he should even wait a little bit longer to apply to naturalize than I am suggesting.
d. Do you know if a LPR with convictions could wind up in Removal Proceedings by getting the attention of USCIS with the submission of a N-400?

My answer:
So the bottom line is this: a drug conviction is a permanent bar to naturalization, and a cause célèbre for deportation – even for an LPR. The code that deals with this is INA § 237(a)(2)(B)(i) (deportability). Admissibility is covered under State Manual on approving entry visas (see also: INA 212 drug convictions dealing with admissability).

Xanax is a schedule IV controlled substance as defined by 21 U.S.C. 802. Apparently, it is has low probability for abuse. Also, an argument can be made that a DUI is not a drug offense per se, and if there is no inquiry into what type of DUI it was, it may be possible to submit a disposition paper without mentioning xanax at all (the N400 adjudicator does not generally inquire into the substance of the offense if a disposition is provided). To constitute a drug offense, the statute is clear - you must be convicted of possession or distribution. There is nothing saying that ingestion constitutes possession under Federal Law.

As for good moral conduct, Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, held that one DUI conviction that results in a year of probation does not bar a good moral character finding. I’m not sure if the 4th Circuit has followed suit, but probably. You should expect a denial, followed by an appeal. It is important to show rehabilitation and regular ameliorating actions.

Do you have a question about DUI's, drug possession, or naturalization? Ask us! You may reach us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Petty drug exception - admissions vs. deportability. NOT THE SAME.

Here's the scenario:

Steve was working with a client in VA state court. He asked for advice on the immigiration consequence. He said: There was a client of mine who was charged with Possession with Intent to Distribute (Marijuana) in Fairfax. We got the charge amended to straight Possession and plead guilty. He did a couple of weekends in exchange for the amended charge. He recently traveled out of the country (against our advice) and upon his return, was given a date to meet CBP out at Dulles. Bad news. I’ve already told him that he is almost certainly going to get a NTA, and possibly detained. I have a possible solution for him: The cop really liked the client, and was a huge help in getting the charge amended. There was also not very much pot at the time of the arrest. If I can get a statement from the cop that would get this within the de minimis range, we might even be able to head this off at the CBP level. Even if that didn’t work, we would have that for his defense in the eventual Removal Proceedings.

My thought is to go with him out to Dulles in November. Because he already paid us to defend him in the criminal case, and because he is very likely going to have to pay us to represent him in Removal Proceedings, I was thinking XX for the CBP meeting only. (Removal Proceedings is a whole new ball of wax.) I can try to get some help from the cop to see if we can kill this and keep our guy in the country and out of Farmville.

This is a great case to discuss the difference between INA 237 (deporability when in the US) and INA 212 (inadmissibility) concerning the petty exception.

Because the client is a returning alien, his entrance into the United States is controlled by INA 212 (restrictions on admissibility) as opposed to INA 237 (deportability once in the US). The petty exception is quite different. In 237, the exception covers marijuana at 30 grams or less. In 212, no drugs are permitted – the petty exception covers only CIMT’s whose max sentence is 1 year or less, and whose actual sentence (served or given) is 6 months or less. Because possession is not a CIMT, the petty exception under INA 212(a)(2)(A) won’t work. Because our fella is an LPR, there is a different type of waiver available for drug convictions. It actually applies to any drug conviction, not just 30 grams or less of marijuana.

The exception is found under INA 212(h). There are requirements for this, though, and I’m not sure he’ll meet them. In this case, he would have to have been an LPR for at least 15 years, or he would need to have an immediate family member who would suffer an extreme hardship. For petty drug offenses, these waivers are granted fairly routinely. However, he will have to sit in immigration court, and he will have to go to a trial. Extreme hardship will require the case to be prepared and litigated, and as you know, DHS will argue against it as a matter of course.

A frank discussion with the client will explain all this to him, and prepare him for the process. You won’t be able to head this off at the CBP level. They lack the statutory authority to approve (well, that’s technically not correct – acting on behalf of the Attorney General, a CBP officer could waive him in. Not likely, though). He need us to spearhead a 212(h) on his behalf.

Do you have a question about admissibility or CBP? We can help! Contact us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

How do I expunge a conviction in Washington, DC?

A great question was asked of a potential client today, and I thought I would share the answer:

I have been convicted in Washington, DC of violating a Temporary Protection Order. I am currently appealing this. If I loose this on appeal, can after this process I have this conviction sealed or and expunged?

In DC, code section 16-802,16-803, and 16-804 control the answer to your question. For the complete text, go here: Chapter 8 - sealing records. However, your question is tricky because it may (or may not!) involve a criminal matter (that's what's covered under 16-802 and 16-803). Not all protective orders are criminal, and some end in civil contempt or an agreement between the parties. As to expungment of a criminal finding, see generally 16-803(c):

(c) A person who has been convicted of an eligible misdemeanor or an eligible felony pursuant to the District of Columbia Official Code or the District of Columbia Municipal Regulations may file a motion to seal the publicly available records of the arrest, related court proceedings, and conviction if:

(1) A waiting period of at least 8 years has elapsed since the completion of the movant's sentence; and
(2) The movant does not have a disqualifying arrest or conviction.

The waiting period may be jointly waived by the prosecutor (that means you file a motion and the prosecutor agrees to waive the period of waiting), See 16-803(e). This is important! Often a lawyer can get an agreement with the Attorney General's office to waive the statutory waiting period.

Generally, however, intrafamily violence convictions, and violations of protective orders that relate to family members, cannot be expunged because intrafamily offenses are not eligible misdemeanors. List of ineligible offenses (see 16-801(9)):

• Intrafamily offense as defined under D.C. Code § 16-1001(8)
• Driving while intoxicated, driving under the influence, or operating while impaired under D.C. Code § 50-2201.05
• Any misdemeanor offense for which sex offender registration is required under Chapter 40 of Title 22
• Criminal abuse of a vulnerable adult under D.C. Code § 22-936(a)
• Interfering with access to a medical facility under D.C. Code § 22-1314.02
• Possession of a pistol by a convicted felon under D.C. Code § 22-4503(a)(1)
• Failure to report child abuse under D.C. Code § 4-1321.07
• Refusal or neglect of guardian to provide for child under 14 years of age under D.C. Code § 22-1102
• Disorderly conduct (“peeping tom”) under D.C. Code § 22-1321
• Misdemeanor sexual abuse under D.C. Code § 22-3006
• Violating the Sexual Offender Registration Act under D.C. Code § 22-4015
• .... and many others. Each offense will indicate if it is "expungable"

Because you potentially have an intrafamily offense, it may not be possible to get this conviction expunged. I would suggest you call us and discuss the particulars of your case. Many aspect of expungment can be waived if the prosecutor agrees/consents to the filing. That means a good lawyer can make all the difference! Call us at 1-800-579-9864 or 571-572-8567.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Can my family hire me as an immigrant in the United States?

So I was in the office today, and received an email requesting assistance with the following question:

I would like details about a green card. I have family who are citizens here. They own a business, can they sponsor me for a green card? I am in the US now.

I thought I would share the answer - probably not. Most non-immigrant work visas require you to be in status before you can switch to them while you are in the United States. If the person who asked the question was here legally on a visa that permitted changing classifications, then yes, he could apply for several of the visas that permit some kind of work -- F, H, L, EB, E, Q, J, etc. However, if he has no status (as the individual who asked the question did not), then you cannot be "sponsored" while you are in the US. A "visa" means, right to enter. You cannot receive a right to enter if you are already here. With some exceptions (such as a one step application after marriage), the law requires you to be outside of the country in order to obtain a visa -- unless you are changing status between visas, or certain special classifications such as "U" visas, etc. Absent those special circumstances, in order to get a work visa, as previously mentioned, you need to be in status -- i.e. legally here in the US already, under a visa that permits changing classifications.

To petition to change classifications, you would need to file an I-539. This form allows you to switch between visa categories when permitted. Typically, for example, if you were pursuing an H1 visa, your employer would file all the required documentation. Once approved, you would than file the I-539 to "switch" into H visa status.

Do you have a question regarding immigration law? Give us a ring! We have many years of experience handling even the most difficult situation. It is always smarter to speak to an attorney before you make a mistake! Call us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Can my employer fire me for being away on jury duty?

We answered a question about jury duty, and I thought it might be helpful for others:

Must an employer pay the salary of employee who lives in DC, and is required to serve on a jury at DC Superior Court, even if they work in Maryland or Virginia?

In regards to your question about whether Maryland or Virginia law applies to DC as it does to an the respective states, the simple answer is "no." The reach of the MD/VA law only covers hearings that the MD/VA Court can control or enforce. Because DC is outside of Maryland's or Virginia's jurisdiction, it cannot control the behavior of individuals attending, or not attending jury in those jurisdictions. There is no "jury consideration" reciprocity between jurisdictions.

However, if the individual is exempt, neither MD nor VA recognize a legal payroll deduction for jury time, so payment would have to be made (subject to being offset by anything paid to the employee by the Court). Hourly employees are not required to be paid in any jurisdiction, however, neither exempt nor hourly employees can be terminated because of jury service.

If the employer terminates the employee due to jury service, said employer will run afoul of the US Federal Labor Laws. This would potentially give rise to a federal case of employment discrimination. The Department of Labor specifically forbids termination due to jury duty, and reclassifies exempt employees who are "docked" jury time as as non-exempt (this has the potential of costing the employer a considerable amount in unpaid overtime and hourly wages).

A succinct summary is here: Society of Human Resources Summary. See also: 28 USC 1875 which reads in "(a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States."

Have you been threatened with termination or legal action because of jury or court duty (including being a witness)? If so, call us immediately! We can help stop the threats and preserve your job. Contact us at admin@hanoverlawpc.com or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

When you are accused of hitting your child -- assault on a family member.

When does hitting your child (intentionally or unintentionally) lead to legal problems? A question was asked on a legal bulletin board yesterday, and we responded with an explanation of DC law. This information is worth sharing on the blog, as it is a topic that has seen an upswing in recent months.

If a child was pushed to direct them in the room in which they were asked to to their chores and they slipped and hit their face on the carpet and caused rug burn, can a parent be charged for assault on a child or possibly lose custody of their child?

This matter is serious. In response to your question -- yes, you can be charged with assault. Assault is the unwanted touching (or imminent threat of touching) of another without privilege and without consent. DC Code 22-404(a)(1) covers the charge, which carries a maximum sentence of 180 days. In your example above, you shoved or pushed the child. That would be sufficient to show a touching. The degree of the injury makes you look bad, but in fact, does not rise to the level of an aggravated assault, so is not entirely relevant to the charge (only the sentence). It is still a simple assault. To rise to the level of 22-404(a)(2), you would have to show serious injury or intent to cause the same.

The assault occurred when you shoved. I would be concerned about a DCPS investigation regarding treatment of the child in the home, as likely this was reported as a result of a teacher or some other individual seeing the rug burns or bruise on the face. Generally, when DCPS gets involved in a case like this, you can expect a safety plan, and the requirement that you attend parenting classes and anger management classes. There is a diversion program that avoids a formal finding of abuse, but still requires a safety plan. However, often you will need a lawyer to ensure that program is triggered.

In terms of custody, it would be entirely likely to see an opposing side (i.e. an ex partner or spouse) use this type of conduct to show the child is unsafe in the home, and move to have custody changed. The DC family law code governing custody determination is at DC Code 16-914. Specifically, the judge can find a "rebuttable" presumption (meaning that the assumption is against you, but you can still argue), if:

There shall be a rebuttable presumption that joint custody is not in the best interest of the child or children if a judicial officer finds by a preponderance of the evidence that an intrafamily offense as defined in § 16-1001(8), an instance of child abuse as defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977...

If DCPS finds there was a violation, and you are not placed in a diversion program, that constitutes child abuse/intrafamily violence, and will be used against you in court. Same effect if you have a criminal conviction for assault on your own child.

If you should be charged, or threatened with this, reach out to us to get help with this quickly. Mistakes made at the initial stage (i.e. you making statements to the investigator, or police) can be a critical problem down the road. Be very careful here.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Naturalization and Crimes Involving Moral Turpitude

I was recently given the following fact pattern, and asked about what, if any effect, it would have on naturalization. This is a good question, and it illustrates the limits of petty exception rule quite well:

Dear Sean: I have a potential client who has a conviction for Theft. He pled guilty and got 1 yr. Deferred Adjudication. The crime has a max sentence of no more than 1 yr. imprisonment. However, his deferred adjudication (i.e. they will drop the charges if he maintains good behavior for one year and performs certain community service obligations) was sentenced in excess of 6 months. The actual term of imprisonment was 100 days in the county jail (i.e time served pending the sentencing of deferred adjudication).

Based on this, is he eligible for petty offense exception? Should he wait to file for naturalization until he has some good equities?

Thanks for the question! The petty exception rule, for naturalization, is triggered by 8 CFR 316.10 (requirements for naturalization), and enumerated under 8 CFR 212(a)(2)(A)(ii)(II). The rule states:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if- ... (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

So, for the petty exception, you need a couple of things.

1. The maximum sentence must be one year or less.
2. The sentence given must be 6 months or less, regardless of time actually served.

For example, if the crime had a maximum sentence of 1 year, and your client was given 1 year with all but thirty days suspended, he would not be eligible.However, if the crime has a maximum sentence of 1 year, and your client was given 30 days, all 30 suspended, he would be eligible. It is for this reason that a sentence of under one year is so important when dealing with petty criminal matters.

I agree with your assessment. He pled and was given what appears to be 1 year jail sentence, all time suspended as part of a deferred sentence. That’s still a conviction for immigration purposes. See, USCIS Policy manual.

Also, your fella may be placed in removal proceedings; this is a heightened risk if he committed the crime during the five year look back period. See paragraph H in the USCIS Policy manual

I am unclear whether this happened more than five years prior. You mention it might – but then give an August 2016 date. If it is more than 5 years prior, you could probably apply if you have really really strong equities to support rehabilitation. However, that a CIMT is a bar to cancellation, too. If he is placed in removal proceedings, he would have serious issues. Make sure you have a defense strategy such as 212(h) or something similar to stop the removal process if he is placed before the judge.

Do you have questions about immigration or criminal law? Call us! We would be glad to review your case and discuss options. Good legal advice is critical in the immigration arena. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com