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The controversial program that allows U.S. Immigration officials to check the citizenship of people who have been arrested is being expanded to include Baltimore City and Montgomery County. The Secure Communities program lets immigration officials review fingerprints collected when people are booked.

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An individual can be barred from extending their status, changing their status, applying for permanent residency or entering the United States if they are outside the United States for any of the following:

  • Conviction for, or admits to having committed, or admits to acts comprising essential elements of a crime of moral turpitude.
  • Conviction for, or admits to having committed, or admits to acts comprising a violation of law relating to a controlled dangerous substance.

There are exceptions to the grounds for inadmissability. These exceptions include crimes involving moral turpitude where the maximum possible sentence is less than one year and the sentence imposed is less than six months. A single offense for simple possession of 30 grams or less of marijuana is also not grounds for inadmissability. Of particular concern are the crimes of "moral turpitude". Moral turpitude refers generally to conduct that shocks the public conscience. Offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. An experienced Maryland criminal defense attorney and Maryland DUI lawyer can negotiate a plea with the State that eliminates charges involving "moral turpitude" in exchange for guilty pleas for crimes which carry less or no potential for inadmissability. In addition, a skilled Maryland criminal defense attorney and Maryland DUI lawyer can often argue successfully for a probation before judgment or stet disposition that allows a defendant to avoid a criminal conviction and the resulting immigration consequences.

What Crimes Trigger Deportability of a Foreign National?

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An individual who is in the United States pursuant to a valid lawful status is subject to deportation if a criminal arrest results in the following:

  • A conviction for a single crime involving moral turpitude that was committed within five years of admission and is punishable by imprisonment of at least one year.
  • Convictions for two or more crimes involving moral turpitude not arising from a single scheme of misconduct.
  • Conviction for an aggravated felony at any time after admission into the United States.
  • A conviction for failing to register as a sex offender.
  • A conviction for a violation of a federal, state, or foreign law or regulation relating to a controlled substance.
  • A conviction relating to a firearm or other destructive device.
  • A conviction for an offense related to espionage, sabotage or treason.
  • A conviction under the Military Selective Service Act or Trading with the Enemy Act.
  • A conviction for high speed flight from an immigration checkpoint.
  • A conviction for an offense related to launching an expedition against a country with which the United States is at peace.
  • A conviction for a crime of domestic violence, stalking, child abuse, child neglect or child abandonment.
  • A conviction relating to human trafficking.

An individual's immigration status or ability to obtain status can be damaged by a criminal conviction. Criminal offenses and their affect on immigration status can be placed into one of three main categories:

  1. Deportability Grounds - An individual who is in the United States pursuant to a valid lawful status is subject to deportation.
  2. Inadmissability Grounds - An individual can be barred from extending their status, changing their status, applying for permanent residency or entering the United States if they are outside the United States. If an individual entered the United States without inspection, he or she will be deemed inadmissible and placed in removal proceedings.
  3. Aggravated Felonies - If an individual is convicted for an aggravated felony he or she can be deported. An aggravated felony conviction can also prevent an individual from changing status, becoming a resident or applying for relief from removal. In some instances misdemeanors are considered aggravated felonies.

Impact on immigration status is not limited to these three categories. Individuals convicted of a particularly serious crime may be barred from applying for asylum. An individual convicted of two misdemeanors or a felony can be barred from extending or applying for temporary protected status. In addition, criminal conduct can bar an individual from applying for citizenship because it requires a showing of good moral character within the five years proceeding the application. If you our someone you know has been charged with a crime that could effect immigration status contact Portner & Shure.

All Spanish speaking defendants should be aware that before you plead guilty to a criminal charge, you must be advised that your guilty plea could lead to deportation. Maryland's Court of Appeals just ruled that a guilty plea for assault charges must be thrown out because neither the Court, nor defense counsel, advised defendant, Mark Denisyuk of the possible deportation consequences of his guilty plea.

The Court of Appeals held that defendants have the right to weigh the risk of significant jail time verse the certainty of deportation. If you are a Spanish speaking defendant and are illegal, you should ask about the deportation consequences of a plea. Do not be surprised if both the Court and an inexperienced criminal lawyer forget to go over this with you. In fact, in this particular case, immigration agents took the defendant into federal custody after his plea and began deportation proceedings.

Should Maryland Require Translation of DUI-Test Consent

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German Marquez, is a Salvadorian who was charged with failing to submit to a breath test in New Jersey. He successfully appealed his conviction in the state Supreme Court because he was read the statement warning him of the penalties he faced if he did not submit to a breath test only in English. The ruling of the state Supreme Court essentially levels the playing field for non-English speaking residents to that of English speakers. Until now, in Maryland and Virginia, drivers are deemed as having given implied consent to a breath test as a condition of being on the road. The American Civil Liberty Union feels that the prior lack of a translation policy meant non-English speakers were being held to a "higher standard" of being expected to memorize what is in the driver's manual. The ACLU has compared the need for translation of consent to a breath test to the need of translating Miranda rights and court proceedings, which the state's courts do provide.

dept of justice.jpgA few months ago the Department of Justice's civil rights division advised the nation's courts to have interpreters available for free at all criminal and civil proceedings and beyond the courtroom, including detention facilities, anger management classes and parol offices. The letter also cited several specific failures. One important instruction from the DOJ was that any court that receives federal funding is subject to Title VI of the Civil Rights Act, which requires access for all individuals regardless of their national origin. This requirement also includes offering services to limited proficiency speakers.

Too often people who speak Spanish, Korean and/or Chinese face clerks who are unaware of available services or indifferent to the needs of those who speak limited English. Many times outdated versions of translated forms are used. In some cases, Spanish, Korean and/or Chinese people are told they must pay for interpreters. In rare cases, people who can't speak English are treated rudely by court personnel. The Maryland Access to Justice Commission, a state body made up of judges and other officials formed in 2008, is investigating language barriers in Maryland's courts and issuing recommendations on how to improve communication. Maryland courts tend to do a good job providing Spanish interpreters at formal hearings, however, there are many procedures and nuances in our courts where no interpreter is available especially for Korean and Chinese people. Basically, there is no type of mechanism to deal with people who don't speak English who come to the courthouse.