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Immigration Consequences of Arrest

January 4, 2016

Immigration Consequences of Arrest

Author: New York Immigration lawyer Alena Shautsova

An arrest occurs when a person is taken into a custody against his/her will for interrogation or search. What constitute an arrest and custody is actually depends on the facts and the occurrences that have been deemed to constitute an arrest have been examined by the judges for a long time.

Sometimes, after an arrest a person is issued a document by the arresting authorities, sometimes it does not happen. Such documents may be a police report, a desk appearance ticket… In other words, sometimes, an arrest results in criminal or administrative charges and sometimes it does not.

The question that I receive often is: should one disclose a fact of arrest that did not result in formal charges? For example, a husband and a wife had a domestic dispute, their neighbors called the police, the couple was brought to the precinct, the wife was let go, but the husband was not. The wife did not have to submit herself for the fingerprint procedure. Does she have to disclose this incident on her citizenship application?

Or, let’s take a different set of facts: young people, whose names are A, B and C, return to their apartment after a party. A decides to do something in public which is not allowed and an officer issues him a ticket. The rest are asked to present proof of their identity. Shall B disclose this fact on his green card application? B was not issued or ticket and was not charged with anything.

And finally, A, B and C are shopping. A security guard suspects that A, B and C committed shoplifting. All three are taken into custody and the police is called. A, B and C are issued desk appearance tickets. During the court hearing, charges against A are dismissed. Shall A disclose this incident during his permanent residency interview?

Let’s see… nowadays most immigration applications and petitions require full disclosure of any arrests and any and all charges, including those resulted in dismissal. Even administrative incidents must be disclosed during the citizenship process: such as stops by Immigration or Customs agents in the airports. An individual who does not disclose a fact of arrest may be charged with committing fraud or misrepresentation in connection with application for Immigration benefits: a charge that requires a hardship waiver or results in finding of lack of good moral character.

It means that almost in all cases an individual has to disclose the arrest, even if subsequently the charges were never brought against the individual. In our first example, the wife will have to disclose the fact that she was brought to the precinct as a suspect , even though the police later realized she was the victim. In the second example, I believe, there was no arrest, even though some might argue that even though B and C who were not issued tickets,  they were not free to leave once an officer asked them to present their IDs. In the third example, A absolutely has to disclose the incident.

Citizenship applicants with arrest history are severely scrutinized on the point of “Good Moral Character.” A dismissal can usually be construed to a misunderstanding between the parties.

In any case of arrest or administrative or criminal charges, an individual who is looking to obtain Immigration benefits such as visa, change of status, permanent residency, citizenship has to consult with an attorney. The Immigration law says that one who admits to committing the elements of the offense (even if the person is not convicted) is deemed to commit and be convicted of the offense under the Immigration law.

Finally, if the person was fingerprinted, and/or the formal charges were brought and later dismissed, this information is FOREVER in the person’s FBI history and will show during the USCIS security checks. So, as a reminder, every applicant has to answers all the questions truthfully, and fully…

How to Overcome Denial under the Adam Walsh Act

May 28, 2014

How to overcome Adam Walsh denial

Author: New York Immigration lawyer Alena Shautsova

Adam Walsh Act enacted on July 27, 2006 [PL 109-248, Title IV] prohibits United States citizens and Lawful permanent residents who have been convicted of certain sexual offenses against a minor from petitioning family members, unless in the “unreviewable discretion” of the Secretary of DHS, the USC or LPR poses no risk to the beneficiary. The same provision applies when a USC would like to petition his/her fiance.

Examples of offenses include: offenses involving the use of minors in prostitution; offenses against minors involving sexual contact; offenses involving the use of a minor in a sexual performance; and offenses involving the production or distribution of child pornography. The Immigration laws very broadly define “Sexual abuse of a minor.” Please note  sexual abuse of a minor is also an aggravated felony under the Immigration laws.  Examples of aggravated felonies under NYPL are: use of a child in a sexual performance in violation of 263.05; sexual misconduct under 130.20).

Examples of crimes that are not aggravated felonies: knowingly engaging in sexual intercourse or oral sexual conduct with person under 18; parents consenting to child’s sexual performance.

A felony conviction is not necessary, as a misdemeanor sexual abuse conviction is sufficient for finding of an aggravated felony under the Immigration law (for example: NYPL 130.60(2) conviction is an aggravated felony).

If after family petition was filed, USCIS found that Adam Walsh Act is applicable, the only way for the petitioner is to demonstrate to the satisfaction of the USCIS that he/she does not posses threat to the beneficiary or that he/she was not convicted of the qualified crime. The burden lies on the petitioner to show that the crime is not the one covered by the Adam Walsh Act. It means that almost in every case a very detailed and difficult analysis of the conviction is necessary. See Matter of INTROCASO, 26 I&N Dec. 304 (BIA 2014).  It is important to know that under the recent BIA decision, Adam Walsh Act has retroactive effect: it applies for convictions that took place before the statute’s enactment as well as to those occurred after its enactment .

To demonstrate that the petitioner posses no risk to the beneficiary, the petitioner must present a very strong record of rehabilitation: probation report; reports by a treating doctor; evidence of community service… Under the recent BIA decision, Matter of ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014), the BIA lacks jurisdiction to review the “no risk” finding. It means that the application has to be impeccable.

A petitioner who has criminal convictions should consult with an Immigration lawyer prior to starting “immigration case” for his/her relatives. A mistake and lack of knowledge may cause deportation/removal of the family members and their permanent inadmissibility. If  you have questions regarding Adam Walsh Act, please call New York Immigration attorney Alena Shautsova at 917-885-2261.

 

Do I need a lawyer?

January 22, 2014

Do I need a lawyer?

I would like to share these stories with my audience in hope to answer  one of the most popular questions potential clients are asking themselves: do I need a lawyer?I met these two clients recently. Two of them have very different stories, but both have one thing in common: they both tried to handle their legal issues themselves.

The first client is a teenage boy who came to the US on a student visa from Russia. He is enrolled in high school, and recently together with his friend was accused of shoplifting. Instead of contacting an attorney, he decided that he did not want to inform his parents in Russia about “the situation” and decided to go to court himself. He was provided a free attorney. Now, I do not want to make any assumptions about legal aid attorneys, but this particular one, for some reason decided that my client did not deserve zealous representation and simply told him to plead guilty. The eighteen years old with no prior convictions, plead guilty to a crime of moral turpitude when he was not even the one caught with the merchandise. Even the prosecutor was in shock and reduced the charge to disorderly conduct, which is still a misdemeanor under the Immigration law.  The free attorney also advised that my client that his visa will be revoked and he would  never come to the US again.

Needless to say that the advice was incorrect. I only regret that the boy did not contact us earlier so we could have helped him to avoid having any record at all.

The second client is from one of the countries of former Soviet Union. He came to ask for help because local police refused to accept his crime report. This client was a victim of domestic violence and extortion: his former family member stole his immigration documents and refused to give them back unless my client payed him several thousand dollars.  So, what do you think happened in the police precinct when my client decided to file a report? He was accused by the detectives of alleged immigration fraud! This was a clear case of profiling. I was so upset for the client and the police’s actions, that I had to go to the police precinct and after two hours of arguing with the whole precinct, the report was finally filed. I must say with regret, that no person who is not an attorney would be able to make those officers to accept the report. I do not know if we will be able to persuade the officers to investigate the reported crime, but at least my client has a copy of the report which will help him to restore his stolen documents.

I hope these examples will help you to answer that question I posed at the beginning of this post.

 

Deferred Action For Childhood Arrivals

August 19, 2012

Deferred Action For Childhood Arrivals

Author: New York Immigration lawyer Alena Shautsova

As the USCIS published instructions to the new deferred action program for young people (Form I-821D), many applicants should be aware of possible pitfalls.
First, the instructions specify that the deferred action will be available for those applicants who do not have a record of felony or serious misdemeanor convictions. It would be wise to consult with an Immigration attorney if you have a criminal record.
Second, many applicants struggle with background questions, such as “point of entry”: for obvious reasons, some of them do not have this information as were brought to the country as babies; and/or false documents were used to enter the country.
A potential applicant for deferred action must remember that the deferred action is a discretionary relief, and must prepare his/her application so that it will “stand out” out of the thousands poorly prepared applications.

If you are dealing with immigration issues, consult New York lawyer. Our law firm keeps its finger on the pulse of ever-changing immigration laws and a knowledgeable lawyer can help protect your rights.

The Law Office of Alena Shautsova is an Immigration law firm serving clients in Brooklyn, New York City, Long Island, Manhattan, Queens, the Bronx and surrounding communities.

Defending The Child Pornography Case

August 2, 2012

By Anthony J. Colleluori
Law Offices of Anthony J. Colleluori & Associates PLLC
Melville NY 11747

 

Child Pornography is defined by 18 USC 2256 as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

  • (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
  • (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
  • (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”

The Internet has moved the child pornography business into homes and offices throughout the nation. Prosecutions are up in this area and the US Justice Department, with the support and urging of a number of otherwise disparate political groups, is spearheading this effort. Hence the Federal Prosecution of Child Pornography is a new cottage industry in criminal law.

The Federal Sentencing Guidelines in most cases can cause the possessor of such material to actually serve more time in prison than the person who actually commits acts of violent against, or has sex with children. Sentences of 20 years or more are regularly administered throughout the nation and a five year sentence is the mandatory minimum in Federal Court. Further, certain opportunities to reduce prison terms are unavailable to the “Child Porn” possessing defendant due to the very nature of both the crime and the Internet. Unlike most crimes, here the possessor never meets, nor can he actually identify his potential co-defendants. Recently a local prosecutor wrote to the court that with the exception of one case in seven years of leading Child Porn prosecutions in his district, he had never seen a defendant in one of these cases actually provide a lead that led to the prosecution of another individual. In other words a 5k.1 letter (a letter from a prosecutor advising the court of substantial cooperation of the defendant warranting a reduction of sentence below guideline and even mandatory minimum sentences) is usually not seen in these cases.

Finally the crime is sure to land the defendant on the “Sex Registry” listing which could, under certain circumstances, serve to cause the defendant to be placed into a locked down sex offender therapy unit after his sentence is completed. There is no required release from such a unit.

As a result of these horrors it is of great import that counsel, when retained in these cases takes certain steps as quickly as possible. The number one effort ought to be to find out who has arrested the client and where the client is being held. Counsel should invoke the defendant’s right to counsel, his right to remain silent and stop any questioning that may be taking (or about to take) place. Counsel should also try to get his hands on any evidence he can and have it evaluated as soon as possible. Destruction of such evidence is illegal. Hence counsel must be careful to make sure nothing in his procedures leads to spoliation of the evidence. Finding out who had access to the computer is also very important. If a computer is a “family” computer, then no one should give any permission to anyone to look at the computer. There ought to be no consent search. Obviously if the computer belongs to the client alone, he should not agree to the taking or reviewing of the contents of the computer. Let the prosecution try to get a court order to view the images.

As has been pointed out by Nathaniel Burney in his blog Criminal Lawyer (http://burneylawfirm.com/blog/2009/05/07/memo-to-child-porn-defendants-the-”it-was-only-research”-defense-never-works/) the defense that one is “doing research” is not a defense although defendant’s use this defense over and over again without success. The US Court of Appeals for the Fourth Circuit in U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) held that such a defense was not available to a reporter who in fact actually did do a story on child pornography from the documents and images he found.

Faced with the Malum In Se nature of the offense and the terrible outlook for getting a fair and unbiased jury based on the offense’s nature, what can and should competent defense counsel do?

There are a number of defense issues which must be raised, and which attack the quality of the evidence. For example the prosecution needs to prove there are over Six Hundred (600) images on the computer if it is to sustain the largest sentences. Counting them is important. Even further Defense counsel needs to hire experts who can review the evidence (which is often done in the prosecution’s office or a lab as the law denies the defense the right to have the images even for the purpose of preparing a defense) to determine if the photograph is in fact a photo of real people, that the photo’s are real and came from the computer they are alleged to have come from or that the people in the images are in fact children.

Defense counsel and clients must remember that a computer drive is rarely ever “clean.” Even if a piece of data is “erased” it can be found hiding in some nook or cranny of the computer’s memory. It is possible that a computer which was the victim of a “virus” could become infected with child pornography without the owner ever knowing it was there. File sharing programs such as Lime-Wire increase the chance that an outsider may control the computer even if the owner is using it simultaneously while being controlled by another. Innocently clicking onto a website could cause downloading to begin even after the user has disconnected from the site. While such activity is thought to rarely occur, it does occur more often than one would imagine. In testimony before The United States Senate DOJ Deputy Assistant Attorney General John Malcolm stated:
“One favorite trick of online pornographers is to send pornographic Spam email. Another is to utilize misleading domain names or deceptive metatags (which is a piece of text hidden in the Hypertext Markup Language (HTML) used to define a web page) which can mislead search engines into returning a pornographic web page in response to an innocuous query. As a result of these deceptive metatags, searches using terms such as Atoys,@ Awater sports,@ AOlsen Twins,@ ABritney Spears,@ Abeanie babies,@ Abambi,@ and Adoggy@ can lead to pornographic websites.”

In a Massachusetts case (Commonwealth v. Filoa) a Government employee who was given a state issue computer was found to have downloaded over 4 times the amount of downloads then common for one in his area of employ. When the computer’s hard drive was accessed it yielded a lot of Child Pornography. Defense experts came in and determined that the information downloaded was downloaded at a supernatural rate (some forty sites per minute) far more than a human could have accomplished. Charges were later dropped.

An opportunity to argue for Jury Nullification can be had, if your expert finds that the alleged porn, while downloaded, was not viewed or opened and/or was immediately deleted. It is not a defense to the charges but it is the kind of thing a jury may hang is hat on if they are looking for reasons to acquit. Further the defendant’s lack of prior record and other psychological findings may be used to suggest that either the defendant was not the one who downloaded the material, or that he didn’t do so knowingly.

Sentencing advocacy is also very important in these cases. Sentences have risen sharply over the last decade as is pointed out in Clint Broden’s article (which can be accessed on the Web at http://www.brodenmickelsen.com/blog/defending-child-pornography-offenses-in-federal-court/) Defending Child Pornography Offenses in Federal Court, he provides a chart of average sentencing over the last 20 years in these types of cases where there were videos and photos (Videos are counted as over 600 images):

Year from Year to USSG Guideline level Sentencing range
1987 11/1990 13 12-18 months
11/90 11/96 18 21-27 months
11/96 11/00 22 41-51 months
11/00 4/03 27 70-87 months
4/03 11/04 29 87-108 months
11/04 8/10 34 151-188 months

Sentencing advocacy in these cases does have an effect on courts, especially when judges begin to understand that actually having sex with a minor carries a lesser sentence than possessing or distributing the images. In a recent case Judge Weinstein of the EDNY stated that these sentences were ruining the lives of people who otherwise would never come into contact with the criminal justice system (US v. Polizzi, 549 F. Supp. 2d 308 –[EDNY 2008]) The Second Circuit in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010)recently held similarly that:
“District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results. While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand. We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.”

Using a sentencing mitigation expert is a good way to reduce the damage the guidelines and mandatory minimums bring. As most of the clients charged in Child porn cases tend to not have any prior criminal record and often are parents and community leaders or business people, the court needs to understand these individuals better. An expert in mitigation can put together a “day in the life” video or a booklet highlighting the life of the client and focusing on all the good things the defendant has done in his life. Moreover, in the simple possession or downloading case it seems that the Dorvee decision and the decision in US v. Tutty, No. 09-2705 (2d Cir. July 16, 2010) requires that counsel call into question the underlying non-empirical approach to the guidelines as they developed, as well as the fact that some of the enhancements used to increase the guideline range could be considered as “double dipping.” For example the use of a computer is already contemplated by the original base guideline level and so to use the technology enhancement in USSG 2.2G in cases like child Pornography possession is double dipping. The lesson here however is that in defending these types of cases, counsel must take a proactive approach, from questioning the guidelines to deconstructing them.

In conclusion Child Pornography charges are among the most serious a defendant can face in the federal system. Counsel cannot throw up his hands at the charges and hold the defendant’s hand as he goes to the gallows. Instead the defense attorney needs to actively litigate against the charge and question the guidelines as well as the “usual thinking” in order to bring justice for his client.