In California, a process called deferred entry of judgment allows people charged with a drug offense to go into drug treatment and have a clean slate if they complete it -- after they plead guilty. Immigrants, however, are at risk of accepting deferred entry of judgment because of the immigration consequences that occur upon pleading guilty. A guilty plea under federal law exposes non-citizens to deportation and permanent family separation even before they have the time to complete a drug treatment program.
Under the existing deferred entry of judgment program:
An eligible individual may have entry of judgment deferred, upon pleading guilty to the offense(s) charged and entering a drug treatment program for 18 months to 3 years. If the defendant does not do satisfactorily in the program, does not benefit from the program, convicted of new crimes, or is involved in criminal activity rendering him or her inappropriate for diversion, the court enters judgment and proceeds to sentencing. If the offender completes the program, the case is dismissed.
A person qualifies for deferred entry of judgment if he or she has (1) no prior controlled substance conviction; (2) the charged offense did not involve violence; (3) the charged offense is listed in the diversion code section (4) the record does not indicate that probation or parole has ever been revoked without being completed; (5) no previous grant of diversion; and (6) was not convicted of a felony within 5 years prior to the alleged commission of the charged offense.
This bill would make the deferred entry of judgment program a pretrial diversion program:
Under the pretrial diversion program created by AB-208, a defendant would enter a plea of not guilty and waive his or her right to a jury trial. Thereafter, the court would postpone proceedings in order for the defendant to enter a drug treatment program. The bill would require the court, if the accused does not perform satisfactorily in the program or is convicted of specified crimes, to terminate the program and restore criminal proceedings. If diversion is successfully completed, however, the law would require the criminal charges to be dismissed.
AB-208 seeks to mitigate consequences to non-citizens by changing the current process from deferred entry of judgment to pretrial diversion. While the current law dismisses a case upon successful completion of drug diversion, a non-citizen may still face immigration consequences, including deportation or the prohibition from becoming a U.S. citizen. This, of course, is an injustice to immigrants to this country. Moreover, U.S. citizens also benefit from this law by avoiding federal consequences including the loss of federal housing and educational benefits. This new law keeps families together and helps both immigrants and U.S. citizens.
This article will give you a general understanding of how family-based immigration in the United States works and how it can help a foreign national get permanent residency (Green Card).
Permanent resident status gives a family member the privilege of living and working in the United States. Family-based immigration is the process of applying for a green card through a spouse or other family member. This process can be extremely complex, long and frustrating for the applicant who will need fingerprints, undergo a thorough medical examination, and undergo a thorough security check.
Family-based immigration requires the participation of at least two family members, a petitioner and a beneficiary. The petitioner must be a U.S. citizen or permanent resident who wants to sponsor a foreign national to get a green card. The beneficiary is the individual who has a visa petition filed on his or her behalf. In some categories, the beneficiary may have a spouse and children that qualify as derivative beneficiaries.
An unlimited number of visas can be provided to immediate family members of U.S. citizens every year. Immediate relatives of U.S. citizens are defined as:
Family members who meet these requirements must file a petition in order to qualify for an I-R visa.
Family Preference Visa categories
Family preference categories are for individuals who are not considered “immediate relatives” under the law; however, have a close family relationship with a citizen or legal permanent resident. The government has created specific categories of family members who qualify for family preference visas and set limitations on the number of immigrants of each category who can enter the country every year. Categories include:
You are not eligible to sponsor a family of immigrants, such as grandfather, aunt or uncle, cousin or in-law.
What are my options if I want to apply for my spouse?
A spouse of a United States citizen may apply for permanent resident status and obtain a work permit within the United States, if the spouse:
Failure to meet these requirements will require that the spouse leave the United States and return to their home country to proceed with the process of Consular Processing (applying for permanent residence from abroad).
What specific criteria should a marriage meet to be considered valid for immigration?
Immigration officials conduct very detailed reviews of marriage relationships when a case is based on a marriage. According to a recent report by the Department of Homeland Security, almost half of all cases of marital immunity are fraudulent.
At a minimum, for a marriage to be recognized as valid for immigration purposes, each party must have been legally able to marry at the time of the marriage (i.e. all previous divorces were final), the marriage ceremony must have been considered legal under the laws where it was performed, and the couple must have married out of a true desire to enter into a marital relationship and not just for immigration purposes.
Common Law marriages are accepted for immigration purposes if the law in the place of residence of the couple legally recognizes them. In these cases, however, extra evidence generally needs to be submitted to support the common law marriage-based petition. Customary marriages, those performed according to local custom but not licensed by civil authorities, may be valid if the law of the country where the marriage occurred recognizes the marriage as valid.
What Are My Options If I Want to Apply for My Fiancé(e)?
If the couple is not yet married, a U.S. citizen may apply for a K-1 visa in order to bring his or her love one to the United States in order to get married. The couple has only 90 days in which to legally marry in the United States. Once the couple is married, the immigrant relative can then apply for permanent resident status. In order to obtain a fiancé(e) visa, the couple must prove:
It is important that immigrants carefully plan before submitting any family-based immigration petition with USCIS. Applying for a benefit that an immigrant is not eligible for could result in removal proceedings and possible deportation from the United States.
A person convicted of a crime is required to pay a fine and/or fees within a certain deadline. Senate Bill 185 would require the court to determine whether a person is indigent and how much of any associated fine, fees, or other financial penalties that person can afford to pay.
Under the proposed law if an individual is indigent, the court must reduce all fines and fees by 80% on all pending charges. A person must prove that he or she is indigent by providing specified information under penalty of perjury. In fact, the court can restore fines and fees to the full amount if a person willfully provides fraudulent information with regard to his or her financial status.
Furthermore, SB-185 requires the court to offer payment plans to everyone charged with an infraction. For those that are not indigent payments would be no more than 5% of one’s monthly income. For those that are, a person will have a $0 monthly payment plan until the individual’s financial circumstances change. If there is no change in 48 months, the courts must discharge any outstanding balances.
The current law authorizes the court to notify the Department of Motor Vehicles.
When a person does not appear in court or does not pay a fine current law requires the Department of Motor Vehicles to suspend and prohibits from issuing a driver’s license. The proposed law would remove such requirement. In fact, this bill would also prohibit the court from issuing a bench warrant for failing to appear in court for traffic violations. SB-185, however, does not alter the law related to driver’s license suspensions for reckless driving or driving under the influence.
Another significant benefit of SB-185 is that it reduces the penalty for failure to appear and failure to pay from a misdemeanor to an infraction. It goes without saying that any misdemeanor conviction can permanently damage your reputation, your ability to get a job, and all other aspects of your life.
At the end of the day the senate bill would ease the burden of traffic tickets on the indigent. Studies have shown how damaging it is to all people, in particular the indigent, when you are unable to resolve unpaid traffic tickets. Countless amount of Californians are in significant debt with the court and lose their driver’s licenses and income as a result. This is a great step forward.
The California Senate took a step in addressing what numerous described as an expensive failed policy that worsened racial disparities in sentencing by passing SB-180.
The law allows greater funding for programs and services that improve public security, including community-based mental health and substance abuse treatment, job programs, and housing. How? The law would reduce jail congestion and stop the need to build and staff expensive new prisons. Additionally, it addresses increasing racial disparities in the criminal justice system. Though the amount of drug use and sales are similar across racial lines, minorities are far more likely to be arrested and prosecuted for drug law violations.
The bill repeals the three-year sentence enhancement for some prior drug convictions; part of a reform package that lawmakers say would defend juveniles and make parity in the justice system.
Enacted in 1985, the enhancement was intended to deter drug sales and lessen availability of drugs in California. Experts agreed that it failed on all counts – drugs are cheaper, stronger, and more widely available than at any other time in U.S. history.
How the law worked prior to SB-180
In California, a person convicted of sales can face a sentence of three to five years imprisonment, plus an additional three years in jail for each prior conviction for related drug offenses. For example, a person facing a new conviction for possessing a very small amount of drugs for sale, which has a base penalty of up to five years, could face an extra nine years if they have three prior convictions for sale. This is not an unusual scenario for addicted, homeless drug users. These types of drug enhancements are the foremost cause of sentences over 10 years in county jail, according to research.
The policy implication of SB-180
SB-180 is a modest reversal of harmful policy under the so-called war on drugs, which excessively targets minorities and does not stop the flow of narcotics. The old law has wasted millions of California taxpayer dollars. Eliminating the enhancement would free up funds that could be invested in programs and services that reduce crime and improve public safety.
Furthermore, the enhancement punishes an individual twice for prior drug convictions without addressing the root cause of a person’s involvement with drugs. This sentence enhancement has contributed to jail and prison congestion, and does little or nothing to deter drug sales, or to lessen the amount of drugs or drug dealing in communities. The new law is a step forward in restoring balance in the criminal justice system.
Domestic violence, sometimes called spousal abuse, is used as an umbrella for all forms of abuse between two individuals who share a close bond.
The WHAT: “Abuse”
What exactly constitutes domestic violence against another person? Is physical contact required? Or are threatening words enough? Although the crux of domestic violence is defined similarly across state lines, many legislatures express subtle distinctions from one another in their definitions of this unlawful behavior.
In California, the Family Code provides the most cohesive definition of domestic violence. The sections defining domestic violence are collectively known as the Domestic Violence Prevention Act (DVPA). The word “abuse” is defined as any of the following:
Many have provided a more expansive definition of domestic violence, and even classify such behavior into different groups.
THE WHO: “Domestic”
Who falls under the category of domestic violence? Is it only a spouse? His or her boyfriend? A live-in partner?
Section 6011 of the Family Code states that “domestic violence” is abuse committed against any of the following persons:
In lay terms, the following people are included under the category of domestic violence pursuant to California law:
Punishments for Domestic Violence Charges
The criminal charges associated with domestic violence can have a distinct and serious impact on a person’s reputation and personal freedoms. When facing these allegations, an accused can often lose professional or personal opportunities, even if the case is still pending.
Perhaps the most distinctive part of a domestic violence conviction is the requirement that the defendant attend a batterer’s program at his or her own expense. These programs are often third-party programs associated with, but not run by, the state. During the program, individuals are expected to work through a specialized curriculum, producing a progress report for the court on a regular basis. Failure to attend these classes may lead to more consequences in court for failing to comply with your probation terms. With each violation, the government tends to take a more punitive tone.
In addition, to required classes and probation, a conviction will lead to a criminal protective order being issued by the court. A criminal protective order is enforced by the threat of prosecution, meaning that contact between the accused and alleged victim can lead to new charges. Additionally, a domestic violence conviction can lead to losing the right to carry a firearm either temporarily or permanently, depending on the situation.
Are You Facing Domestic Violence Charges?
If you have been charged with domestic violence, it is essential for you to hire an attorney with years of experience in handling these type of cases. The reality is that fighting a charge(s) can be quite difficult, because the government has unlimited resources to prosecute you. While it is true that some people are victims of domestic violence, there are many people who are falsely accused. With the right attorney by your side, you can create a solid defense that can lead to the case being dropped or have a successful outcome at trial.
Furthermore, by working with an experienced lawyer you will be able to mitigate the consequences of a conviction. For example, your attorney can fight to keep you out of jail. But of course, there are situations in which custody time is inevitable. A skilled lawyer will fight to minimize your sentence.
Regardless of your situation, it is essential to be upfront with your lawyer. By telling the whole story (good and bad), your lawyer will be able to create the best possible defense on your behalf. The last thing your attorney needs is to face an unexpected piece of evidence that could potentially unravel your entire defense.
Remember – your conversations with your attorney are confidential. This doesn’t hold true with other people you speak with. Therefore, you should exercise your right to remain silent at all times especially if you are being investigated or prosecuted for domestic violence.
In California, there are two parts to a DUI case. First, Vehicle Code section 23152(a) focuses on whether a person is too impaired to safely operate a motor vehicle at the time of driving. This can be assessed by looking at the person’s driving pattern, performance on field sobriety tests (FST), and other “objective signs” of intoxication. Second, under Vehicle Code section 23152(b), the prosecutor need only show that an individual’s blood alcohol concentration (BAC) level was .08% or more while driving. A driver under the age of 21 with as much as .01% BAC may also be cited for a DUI.
California’s DUI laws are very strict and can lead to months, years, or even a lifetime of negative consequences. DUI laws are complex because of all the variables that are involved in the case. How a person is charged and how penalties are imposed depend on a number of factors. An experienced attorney knows the intricacies of the law and have access to expert witnesses, all of which can help you build a stronger defense.
Living in California generally requires a great deal of driving. As a result, the chances of one getting pulled over for suspicion of driving under the influence is high.
California law has mandatory penalties for DUI convictions. The legal consequences increase in proportion to the number of convictions and whether it is a misdemeanor or felony DUI. It goes without saying that the penalties for a 3rd or felony DUI are significantly worse than someone being charged with a first offense. Below you will find some of the possible consequences for being convicted of a DUI:
First Offense: Vehicle Code Section 23538(a)(1)
Second Offense in 10 Years: Vehicle Code Section 23542(a)
Third Offense in 10 Years: Vehicle Code Section 23548(a)
Fourth Offense in 10 Years: Vehicle Code Section 23552(a)
When in Doubt - Plead Not Guilty
It may seem counterintuitive to plead not guilty, but doing so may give you the most leverage throughout the DUI process. At your first court appearance, you may request a continuance in order to hire an attorney. Due to the complexities of a DUI (FST and blood/breath testing) hiring a lawyer will provide you with the clarity and assurance you need during these troubling times.
You are not alone. An experienced defense attorney can fight for you and help minimize the consequences of your arrest. Significantly, a skilled defense lawyer will be able to spot any issues with your case and proceed to trial if necessary.
Permanent resident status is a complex process that enables an immigrant to reside and work on a permanent basis in the United States.
Benefits of Being a Lawful Permanent Resident
How to Become a U.S. Citizen Through Naturalization
What is naturalization? In essence, it is the process of being a citizen for an individual not born in the United States. The application for naturalization is Form N-400 and can be obtained from the USCIS website. However, there are specific requirements that must be met before the application can be processed.
A person is given a permanent resident card commonly known as a “green card.” There is a set number of years that a resident is required to be in continuous residency in the United States. Any stay outside the U.S. for more than 6 months can disrupt continuous residence. Permanent residents need to maintain this continuous residence as well as physical presence in the U.S. for five years. If you are married to a U.S. citizen there is a three year requirement.
Naturalization Requires Good Moral Character
The law has specific requirements regarding whether a person possesses good moral character. Specifically, your criminal record. There are offenses that you cannot be convicted of, meaning you can be barred from applying for naturalization. There are also offenses that can temporarily bar an individual from qualifying for citizenship. The following crimes are examples of those demonstrating a lack of good moral character: crimes against people with the intent to harm, violating controlled substance laws, illegal gambling, prostitution, and terrorist acts to name a few. Not telling the truth during the USCIS interview can also be grounds for denying your citizenship.
A requirement of understanding the English language must be demonstrated by the person seeking naturalization. The applicant must be able to read, write, and speak simply words and phrases from “ordinary usage in the English language.” There is also a requirement for the applicant to have a basic knowledge of U.S. history and government. Applicants over the age of 50 have different exemptions for taking the English test. For example, if the applicant is over 50 years of age and has been a permanent resident for at least 20 years, they do not have to take the English test, but do have to take the civics test.
As an applicant for citizenship, you must show a willingness to support and defend the United States and the Constitution. There must be a declaration of “attachment” to the U.S. and the Constitution by taking an Oath of Allegiance. This oath makes the applicant promise the following: to renounce foreign allegiances, support the Constitution, and serve the United States.
Do Not Lose Your Permanent Resident Status
Lawful Permanent Resident (LPR) status in the U.S. is a privilege that can be revoked. It means that you can lose your LPR status even after receiving a green card. For example, you will lose your LPR status when you abandon your permanent residence in the U.S., or when you become deportable for committing a serious crime or violating U.S. immigration laws.
Many are of the belief that after getting a green card, they can travel freely or even relocate to their home countries. Though an absence from the U.S. does not automatically result in cancellation of LPR status, an extended absence can lead to the government questioning an immigrant’s intent to remain a permanent resident of the U.S.
Apart from how long you have been absent from the U.S., the USCIS will look to many other factor that reflect your intent such as:
It is important to note that no single factor mentioned above is controlling with regard to your intent to maintain permanent resident status. The government will analyze all other relevant factors to come to a decision.
Generally, if you leave the U.S. for one year or less, you can use your green card as a reentry document. However, if you are absent from the U.S. for more than one year, you might face difficulties reentering the U.S. The USCIS considers the absence of longer than one year as a possible abandonment of U.S. residency. If you will be out of the U.S. for more than one year, you may need to get reentry permits or special immigration visas.
Completing the application, having fingerprints taken, being interviewed by USCIS, taking the English and civics tests, and taking the oath are all necessary steps to becoming a U.S. citizen. Contacting an immigration attorney can be helpful in making sure all necessary steps are taken in applying for citizenship.
If you are not a citizen of the United States and have ever been arrested, detained, or charged with a crime or any other type of violation, the government may try to deport (remove) you from the United States even if you were not convicted or served time in jail and even if you complied with all the court-imposed conditions.
If you are deported from the United States or leave voluntarily, you may be barred for years from entering the U.S. If you return to the United States after being deported without the authorization of the government, you can spend several years in a federal prison.
In addition, if you are a permanent resident and leave the United States pursuant to a removal order, you may lose your social security benefits for life. That means that if you have worked and paid taxes in the United States, you will lose all the money you paid in social security and will have no retirement benefits in the United States, whether you paid taxes for one year, ten years, or 50 years.
Section 237 of the Immigration and Nationality Act lists the different classes of deportable individuals. A person can be deported for the following reasons:
What to Really Expect in Removal Proceedings
While placement in removal proceedings is serious, it must be understood that a person unlawfully present in the United States cannot just be "thrown out of the county." Generally, removal from the United States must undergo certain due process procedures.
Except in the case of expedited removal, a person will first be allowed a full hearing before an immigration judge. Customarily, a removal proceeding has the following phases:
Bond Hearing: When an individual is in immigration custody, he or she may request a bond hearing. During a bond hearing a respondent (the individual in proceedings) may request to pay a bond in exchange for release from immigration custody. In certain cases a respondent may be ineligible for bond. Should a respondent be eligible for a bond, he or she is released from detention pending removal proceedings.
Ordinarily, a bond hearing occurs before a master calendar hearing. At times the bond hearing occurs at the same time as a master calendar hearing; however, the hearings are two separate proceedings.
Master Calendar Hearing: During a master calendar hearing the respondent is given the opportunity to address the reasons why the government is seeking removal from the U.S. and provide any defenses. Before or during a master calendar hearing the government will issue the respondent a Notice to Appear (NTA). The NTA is a document that identifies the specific reasons for removal, often referred to as allegations, and the legal basis for removal, often referred to as charges.
The respondent will either admit the allegations and concede the charges in the NTA or contest the NTA. Following the pleading of the NTA, the respondent is given the opportunity to designate a country of removal, identify any defenses of removal (cancellation of removal, asylum, etc.), and file applicable applications.
Individual Hearing: The final hearing in removal proceedings is called the individual hearing or the hearing on the merits. During this hearing the respondent is given the opportunity to put on a full case before the immigration judge. The respondent may present witnesses, supporting documentation, and any relevant evidence in his or her defense.
At the end of the individual hearing, the immigration judge decides to either grant relief or deport the respondent. Should the immigration judge order the respondent removed from the United States, he or she may appeal the decision. The respondent has 30 days to appeal the decision. During these 30 days, the respondent may not be removed from the U.S.
Order of Removal: Once the respondent receives a final order or removal ICE officers will remove the individual from the United States. ICE is supposed to remove the individual from the United States within 90 days of the order; however, due to limited resources this time may be delayed.
ICE will generally send individuals not in custody a Form I-166, commonly called a "Bag and Baggage" letter. This letter will provide the individual with the date, time, and location to appear for removal from the United States. It is the individual's responsibility to adhere to the order of removal.
Should the individual fail to appear for removal the individual faces serious immigration consequences, including being subject to ICE apprehension and ineligibility from most forms of immigration benefits.
If I am Facing Deportation/Removal Proceedings, What Options or Defenses Do I Have?
If you have been arrested and are facing removal proceedings by U.S. Customs and Enforcement (ICE), there are various forms of relief the may help you remain in the U.S.
If you are a U.S. Citizen you don't have to worry about being deported because you can't be. Sometimes people are unaware that they are in fact U.S. citizens based on a relationship to a family member. If you are a U.S. citizen you should notify the immigration judge immediately.
One form of relief available to those facing removal proceedings is cancellation of removal. You may be eligible for cancellation of removal if you satisfy the following requirements:
You may be eligible for cancellation of removal even if you never had a green card if:
There are a couple waivers available to those facing removal proceedings. Under the section 212(c) waiver, if you pled guilty to a crime before April 24, 1996, your criminal conviction may be waived. In order to qualify you must satisfy the following:
Another waiver available is the section 212(h) waiver. This waiver excuses you for certain crimes if you can prove that removal from the U.S. would cause extreme hardship to a U.S. citizen or permanent resident spouse, child or parent. Some other forms of relief include asylum, withholding of removal, and Convention against Torture. You may be eligible to apply for asylum if you fear harm in your country because of your race, religion, nationality, actual or suspected political opinion, or membership in a particular social group. Withholding of removal may be available to you if you can show your freedom or life would be threatened due to your race, religion, nationality, political opinion or membership in a particular social group. Finally, you may be eligible for relief under the Convention against Torture if you fear that you will be tortured if you return to your country.
Adjustment of Status is another form of relief available to those who satisfy one of the following:
You should consult with an experienced immigration attorney to determine whether you qualify for relief from deportation.