Articles Posted in Non-citizens and immigration issues

Published on:

A huge percentage of the criminal cases in federal court involve charges relating to the trafficking of drugs, narcotics, and controlled substances. Convictions for these crimes carry serious penalties and sometimes involve mandatory minimum prison sentences. Usually, a person accused in federal court of possessing or trafficking controlled substances is charged with violating 21 USC 841, which makes it a crime to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Section 841(b) sets forth the potential penalties for this offense, and it depends primarily upon the quantity of controlled substance possessed/distributed in the aggregate. What matters for sentencing purposes is not the number of transactions or the frequency of the activity, but the total volume of drugs possessed or distributed over time. If the quantities involved surpass a certain threshold (depending on the drug), as set forth in Section 841(b), then there can be serious mandatory minimum prison sentences for the offenders. Those mandatory minimum sentences notwithstanding, the potential penalties for these offenses are governed by the complex system set forth in the federal sentencing guidelines. For more on the federal sentencing guidelines, click here.

Federal cases involving narcotics charges typically are the result of long-term investigations by the FBI, the DEA, Homeland Security, or a joint task force involving local police like the NYPD. As such, there are oftentimes wiretaps, surveillance tapes, confidential informants, and search warrants. An effective defense requires an attorney who can review the evidence and the law enforcement processes to determine whether any constitutional rights were violated.

Many unfortunate individuals never actually possessed or distributed narcotics but nonetheless find themselves charged in federal court on account of the conspiracy laws encapsulated in 21 USC 846. That statute explains: “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Basically, this means that a person who plays any knowing role whatsoever in another person’s illegal business is criminally liable for the entirety of that conduct. For example, a person who introduces two people for the purpose of a drug transaction can be expected to be charged as an equal to whatever drug transaction ultimately occurred. A person who acts as a lookout during a drug transaction could be treated as equally culpable to the seller of the narcotics. A person who simply rents an apartment to someone whom he knows is dealing drugs from the apartment could be guilty of “conspiring” to assist the dealer. These are just a few examples of people who could be charged in ways that seem unfair in light of their relatively modest role in the crime. We have however defended many girlfriends of drug dealers and casual acquaintances of true criminals who have found themselves knee-deep in serious federal cases after having had only fleeting or tangential involvement in the cases. But this is the reality of federal conspiracy law.

Published on:

New York City owes much of its energy and excellence to the foreign citizens living and working here. Unfortunately, a visa or green card holder's right to remain in the United States can be seriously jeopardized by a Desk Appearance Ticket, even when the charges are comparatively minor misdemeanors. Many visa holders fail to take these arrests sufficiently seriously because the charges seem minor (like marijuana or subway fare theft) or because the arresting officer tells them "it's no big deal." Truthfully, though, career, educational, and family plans can be completely devastated by even a minor case of walking through the subway gate without paying, so it is absolutely critical that a foreign person arrested and issued a Desk Appearance Ticket retain competent counsel immediately.

In many ways, a Desk Appearance Ticket does not feel like such a big deal. The arrested person is usually handcuffed and taken to a police station where they are fingerprinted. They typically wait a few hours in a holding cell until they are given a piece of paper telling them the date and location of their appearance in court. Before Desk Appearance Tickets became routine, criminal defendants could expect to get "sent downtown" and spend the night in jail before seeing a judge. Obviously, Desk Appearance Tickets are preferable for criminal defendants because they spend less time in custody and also have the opportunity to choose counsel for themselves prior to going to court.

Make no mistake, however: the issuance of a Desk Appearance Ticket is in fact an arrest – it is not "just a ticket". More importantly for visa holders, this event is not going to "fly under the radar" with the immigration agencies. If you were arrested and given a Desk Appearance Ticket, your fingerprints and the arrest charges have been sent to a New York state agency (the Division of Criminal Justice Services) and to the FBI, which maintains a federal nationwide law enforcement database of all arrest events across the United States (the Interstate Identification Index). Visa and green card holders should understand that the immigration agencies, in processing visa renewal requests, access this database to investigate whether the visa applicant has an arrest record. Indeed, some visa holders actually receive emails from Department of Homeland Security (Immigration & Customs Enforcement) agents after their arrests, because the agency was notified of the arrest via the fingerprint database.

Published on:

Foreign citizens and drug importation charges at JFK, Newark, and LaGuardia Airports (federal controlled substance crimes)

American demand for illegal drugs, combined with harsh federal and state laws prohibiting their sale and possession, has created a black market that can be extraordinarily lucrative for illegal drug traffickers. Enticed by the potential to make significant amounts of money very quickly, many foreign citizens make the mistake of attempting to import controlled substances into the United States through New York City’s international airports (JFK and Newark, and to a lesser extent, LaGuardia). Those individuals caught in the act of importing narcotics typically face federal criminal charges like 21 U.S.C. § 952 (importing controlled substances) or 21 U.S.C. § 841 (possessing controlled substances with intent to distribute). Indeed, one study concluded that approximately 75% of those individuals sentenced for federal drug convictions in 2014 were illegal immigrants or foreign citizens.

http://www.washingtonexaminer.com/illegal-immigrants-responsible-for-almost-three-fourths-of-federal-drug-possession-sentences-in-2014/article/2567814

Published on:

Arrests for shoplifting are incredibly common in New York City, and many of those individuals arrested for shoplifting are being arrested for the first time. Though arresting police officers typically assure people that the arrests are trivial and will not have any lasting consequences, the truth is that these cases need to be handled carefully because even seemingly small cases like these can have tremendous negative implications for hardworking people.

Most people arrested for shoplifting are held by store security guards until police arrive. During that time, store security guards typically force or trick the people they've detained to sign written confessions (by promising not to call the police if they sign) and trespass notices acknowledging that they are no longer allowed to shop at the store. Store security guards do not have to read people their Miranda rights because they are not police officers, but anything said to them can and will be used against them in courts of law.

Police officers then take these detained people to the local precinct, where the arrest process begins. Fingerprints are taken and paperwork is completed while the arrestees typically wait in a cell for about three to four hours. Then, the alleged shoplifter is usually given a Desk Appearance Ticket, which looks like this, which directs the shoplifter to appear in court at a later date. Failure to appear in court on that date results in a warrant being ordered for that person's arrest.

Published on:

One of the great things about New York City is that a fun night of partying can be had relatively safely because taxis are so readily available to drive residents home. The proliferation of Uber has also made it easier for people without cash on hand to get a ride home after a night of drinking. However, sometimes, people having a good time in the city get into taxis without realizing that they don’t have any way of paying for the taxi – either they don’t have enough cash on hand or they have forgotten their wallet at the bar. It is a common and honest mistake made time and again by law-abiding citizens and professionals in New York City. What is surprising to most people, however, is that this mistake routinely results in a criminal arrest that can have serious immigration and job consequences for the person that made the innocent mistake.

Though it seems like a simple and small matter that ought to be handled civilly, taxi drivers typically will call police or drive their passengers to police precincts for arrest. There, police officers will typically arrest the passengers and fingerprint them and give them Desk Appearance Tickets charging them with one count of Theft of Services, a class A misdemeanor in violation of Penal Law Section 165.15 (PL 165.15). Recently, the stepdaughter of Attorney General Loretta Lynch was arrested for this mistake (though the arrest was ultimately voided when her boyfriend came to the precinct and paid her fare), and the attorneys at Galluzzo & Arnone LLP have represented dozens of people charged criminally under this scenario.

A conviction for a misdemeanor gives a person a permanent criminal record and potentially carries a maximum jail sentence of one year. However, this is not a typical result for most individuals arrested and charged with Theft of Services (PL 165.15). It should be noted that a person is only guilty of this crime if he or she intends to withhold payment for taxi services – in most of these cases, the failure to pay is an accident, and not intentional. That being said, the arrest itself can have serious consequences for some professionals and non-citizens.

Published on:

Recently, we have encountered several people wrongfully arrested by the police for allegedly groping or grinding people in the Times Square area. Typical charges for these types of arrests include the Class A misdemeanor Forcible Touching (PL 130.52) and Class B misdemeanor Sexual Abuse in the Third Degree (PL 130.55). Sometimes individuals arrested for these charges receive Desk Appearance Tickets and are told to come back to court on a later date, and sometimes they spend a night in jail before seeing a judge for their arraignment.

Times Square is obviously very crowded with pedestrian traffic, and individuals often bump into each other accidentally. This is especially so near the “kiss-cams” and associated video screens in Times Square, as people often clamor and jockey for position so that they can see themselves on the giant screens up above. Police officers monitor these areas in view of the cameras and have seemingly made several wrongful arrests of individuals who were simply trying to see themselves on the screen and inadvertently brushed into someone else. Fortunately, these cases can be defended at trial, as there is frequently no videotape to corroborate police officer observations, and the crowds make clear viewing angles almost impossible.

These charges can be extremely serious, however. As much as one year of jail time is a possible result, as is potential registration as a sex offender. Moreover, these charges can have very serious negative consequences or non-citizens, such as deportation.

Published on:

Being falsely accused of rape or a sex crime is a nightmare for anyone, but it presents a particularly complex set of problems for foreign citizens living, working, or visiting New York. Not only are they facing deportation as a potential consequence of a conviction, they also generally have increased difficulty securing bail or being able to travel during the pendency of the case. Additionally, we find that foreign citizens frequently make mistakes in dealing with police officers during sex crimes investigations because they are unfamiliar with the American justice system and do not understand their rights. That is why it is absolutely critical that a foreign citizen suspected or accused of committing a rape or sex crime in New York immediately retain a lawyer to intervene and protect him before it is too late.

The ultimate immigration consequences for a non-citizen are sometimes difficult to predict and involve a multitude of factors, including the precise conviction, the immigration status of the defendant (e.g. green card, visa holder, illegal alien), the date of admission to the United States, and the length of the prison sentence, if any. Generally speaking, though, for a conviction to render the defendant deportable, the crime must fall under one or more of several classifications of crimes. Some of those classifications include “sex crimes against minors,” “crimes involving moral turpitude,” “aggravated felonies,” “crimes of domestic violence,” “crimes against a child,” and “prostitution and vice crimes”. Thus, it can often be necessary for a defense attorney to negotiate a plea bargain whereunder a deportable offense is reduced to a non-deportable offense (our offense has had success with this strategy in the past), or to use the fact of an impending and inevitable deportation as a way to persuade a judge to impose a non-jail sentence.

This resource published by the National Immigration Project pretty accurately summarizes some of the relevant charges, most of which are contained in chapter 130 of the Penal Law (Note: most rape and sexual assault charges in New York are pursued under New York state law, though the authors have experience defending foreign individuals in federal sex crimes cases as well). Some of those common charges include Sexual Abuse in the Third, Second and First Degrees, Rape in the Third, Second and First Degrees, Sexual Misconduct, Prostitution/Promoting Prostitution/Patronizing a Prostitute, and Criminal Sexual Act in the Third, Second and First Degrees. Click here and scroll to learn more about the elements of these charges and what they mean.