New Jersey Lawyer News

November 1, 2016

New Jersey Discovery Rules for Cooperating Witness/Confidential Informants in Drug Cases

New Jersey law enforcement routinely rely on cooperating witnesses or confidential informants in making drug arrests. In a recent example, a man was arrested in Sussex, NJ on September 2016 and charged with various drug related offenses under the New Jersey Criminal Code. The charges included first-degree possession with intent to distribute cocaine in violation of N.J.S.A. 2C:35-5b(3), second-degree possession with intent to distribute crack cocaine and heroin, and third degree possession with intent to distribute methamphetamine.

The police relied on a cooperating witness from the Sussex County Narcotics Task Force to make the arrest. The cooperating witness purchased from the defendant and the task force also made controlled buys of cocaine.

When the state uses cooperating witnesses in a drug sting operation a defendant has a right to discovery of certain information relating to the cooperating witness. Discovery Rule 3:13-3(b) generally requires that the State provide all evidence relevant to the defense of criminal charges. Rule 3:13(b) states that discovery “shall include all exculpatory information and relevant material.” Evidence is relevant if it has any tendency to prove or disprove a fact of consequence in the determination of the action. In a recently decided New Jersey Supreme Court case, State v. Hernandez, the court held that the States discovery obligations extend to providing material evidence affecting the credibility of the States cooperating witness. State v. Hernandez, 225 N.J. 451, (N.J. 2016).

October 25, 2016

Three Critical Immigration Visa Programs Extended

by Lubiner, Schmidt & Palumbo, LLC

Religious Worker Immigrant Visa, Immigrant Investor Visa, Conrad State 30 Program for doctors

On October 5, 2016, the U.S. Department of State (DOS) issued an extension on The Conrad State 30 Program, the EB-5 Regional Center (Immigrant Investor) Program, and the Special Immigrant Religious Worker Program (SR Visa)

Under the Conrad 30 Visa Waiver Program, each state’s health department can request J-1 Visa Waivers for up to 30 foreign physicians per year. The program addressed the shortage of qualified doctors in federally designated health professional shortage areas or medically underserved areas. Although each state has developed its own application rules and guidelines, the above program requirements apply to all J-1 medical doctors.

October 24, 2016

Fighting to Have Your Criminal Record Expunged in New Jersey, Part I

by Lubiner, Schmidt & Palumbo, LLC

As stated by the New Jersey Supreme Court, millions of adults nationwide have criminal records that impact their reentry into society, often for many years after their sentence is complete. Criminal records present barriers to employment, licensing, housing, and school applications, among other things. In re Kollman, 210 N.J. 557 (N.J. 2012)

The New Jersey State legislature in an effort to afford a second chance to certain offenders enacted a law, allowing for the expungement of criminal records from public record. N.J.S.A. 2C:52–2(a) Under the revised expungement law the New Jersey legislature slashed the time extent for defendants to apply for expungement from at least ten years after completion of a sentence to five years, under what is referred to as the “early pathway to expungement.” N.J.S.A. 2C:52–2(a)(2).

The new expungement statute states that if at least five years has expired from the date of conviction, fine, completion of probation or parole, or release from incarceration, an individual may then petition the court for record expungement. The New Jersey expungement statute adds that in order to be eligible, the individual must not have been convicted of a crime, nor received a disorderly person’s offense, nor petty disorderly person’s offense, since the time of the conviction. According to the statute, your record will be expunged only if the court finds that expungement is in the public interest—taking into account the nature of the offense, as well as the individual’s character and conduct since conviction.

October 5, 2016

Are the Police Permitted to Search Your Cell Phone?

by Lubiner, Schmidt & Palumbo, LLC

Warrant May be Necessary to Search Cell Phone Content

We rely on our cell phones for everything and there is no limit to the information we store on our cell phones. It is of course for this reason that when police perform an arrest the first thing they want to search is your cell phone.

But are police permitted to search your cell phone? Recently the Supreme Court has ruled on a cell phone search case that has had major ramifications across the country including in New Jersey. In Riley v California 134 S.Ct. 2473 (2014) that police must obtain a search warrant before searching digital data on arrestee’s cell phones. In the Riley case an individual was stopped for a traffic violation, and was arrested on a weapons charge. The cops took the individual back to the police station and searched his phone, obtaining evidence that he was involved in a recent shooting.

August 5, 2016

601A Expansion effective August 29, 2016

by Lubiner, Schmidt & Palumbo, LLC

Typically, a foreign national who has accrued more than one hundred eighty (180) days but less than one year of unlawful presence is subject to a three (3) year bar from returning the US after a departure. A foreign national who has accrued more than one year of unlawful presence is typically subject to a ten (10) year bar from returning to the U.S. after a departure (commonly referred to as the “3/10 year bar”). While a waiver of these bars remains available, applicants may only apply for this waiver from outside the US. This process carried a very significant risk of being trapped outside of the US for months or even years pending the adjudication of the waiver. Even worse, if the waiver application were to be denied, the applicant would be unable to return to the US for 3/10 years, depending upon the previous duration of unlawful presence.

As of March 4, 2013, immediate relatives[1] of US citizens were eligible to apply for the provisional unlawful presence waiver (“601A waiver”) to request that USCIS grant a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas— rather than applying for a waiver abroad after their immigrant visa interviews. This provided applicants with a significant degree of certainty that they would be eligible to return to the US after their interview because the Applicant would already know if their waiver had been granted prior to departing the US. If the 601A waiver were denied, most Applicants would simply remain in the US. In practice, while many Applicants were able to make use of the 601A Waiver to reenter, there remained a modicum of danger, as US Customs and Border Protection (CBP) ultimately determines admissibility at the time of entry. In addition, this iteration of the 601A left out many otherwise qualified individuals, such as immediate relatives of legal permanent residents (LPR).

On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule, to expand the class of individuals who may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States. The final rule is to take effect on August 29, 2016.

June 28, 2016

A Journey to Freedom

by Lubiner, Schmidt & Palumbo, LLC

On November 2, 1966, Congress passed the Cuban Adjustment Act, which permitted Cuban nationals who have been physically present in the United States of America for at least one year, who have been admitted or paroled, and who are admissible as immigrants to the United States to apply to for adjustment of status to that of a legal permanent resident (“LPR”). As a legal permanent resident, they would be eligible for certain benefits, such as being eligible to stay and work in the country legally, being able to start a business, and eventually naturalizing and becoming a citizen of the United States. As a legal permanent resident from Cuba, they also enjoy certain benefits that are typically not available to LPR’s from other countries, such as food stamps and access to Medicaid.

This policy was later modified in 1995, in what has been commonly known as the “Wet Foot, Dry Foot” policy, which was the result of a negotiated settlement with between the Clinton Administration and the Cuban government. The policy provides that anyone who is caught in the waters between Cuba and the United States would be sent back to Cuba, whereas anyone who makes it to shore would be eligible to become a permanent resident, and would eventually have a path to becoming a citizen of the United States.

Recently, another modification has been considered for this special program. According to CNN’s article, “The last flight and first steps: ‘Historic’ surge of Cubans crossing into the U.S.”, thousands of Cubans have been continuing to flee north with many eventually reaching North America. “More than 35,600 Cubans have arrived at U.S. ports of entry since October 1 [2015], nearly three-quarters of them at the Texas border, according to U.S. figures.” As Cubans fled from the repression and financial hardships of their home country, they faced many challenges along the way in potential host countries, including low wages as undocumented workers in Ecuador, hiking for days through the Colombian jungle, facing rough terrain, armed groups and extortion by authorities, with some South American countries closing off their borders to the refugees or others threatening to deport them. When faced with these options, many chose to continue the journey into the United States where greater opportunities lay.

February 10, 2016

DACA/DAPA Before the SCOTUS

by Lubiner, Schmidt & Palumbo, LLC

(This is the final part of our three-part series with a look at DACA in the courts and how recent developments in the US Supreme Court will affect this program)

In our previous articles, we spoke about the inception of DACA, the proposed DACA expansion and the creation of the DAPA program. While the implementation of the DACA expansion and the DAPA program have been stalled in the federal courts, the original DACA program is still fully operational.

From the beginning, there have been many proponents and critics of President Obama’s plans. On one side, representatives from 26 different states banded together to challenge the President’s initiatives. There is widespread support on the other side as well, with 15 states and the District of Columbia, 73 US mayors and county officials, 181 US Representatives, four US Senators, and numerous advocacy groups representing educators, children, and immigrants, as well as various civil rights, labor, immigrants’ rights groups and business interests.

January 28, 2016

DACA Expansion

by Lubiner, Schmidt & Palumbo, LLC

(This is part two of our three-part series on the development of Deferred Action for Childhood Arrivals, with a look at President Obama’s its proposed expansion and the development of DAPA)

On November 20, 2014, President Obama announced an expansion of the DACA program which increased the pool of potential DACA applicants by easing some of the restrictions that were previously in place. President Obama also initiated a program called Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA which would have protected the undocumented parents of US citizen children or lawful permanent resident (LPR) children.

The proposed DACA expansion had three significant changes:

January 21, 2016

Initial DACA Grant

by Lubiner, Schmidt & Palumbo, LLC

(This begins our three-part series on the development of Deferred Action for Childhood Arrivals, its proposed expansion, DAPA, and the recent developments in the US Supreme Court)

On June 15, 2012, President Barack Obama unveiled the Deferred Action for Childhood Arrivals program (DACA) to protect certain classes of undocumented immigrants. Under this program, the US Department of Homeland Security would not remove undocumented youth who had come to the United States as children if they had met certain criteria. Instead, these youth would be “DACAmented” and given a number of benefits that were previously unavailable to them, including the temporary permission to stay in the US under “deferred action.”

To be eligible for the initial DACA guidelines, an applicant must:

January 8, 2016

Immigration Officials Raid Central American Families

by Lubiner, Schmidt & Palumbo, LLC

Over the weekend, immigration officials stayed true to their word and began their next phase of immigration law enforcement against Central American nationals who have received a final order of removal from an immigration judge in recent years.

While immigration officials claim they are only looking to find and remove families from Central America who have had their chance to present their case in court and received a “final order of removal” dated January 1, 2014 or later, it remains to be seen whether this will be the case. In fact, for individuals with removal orders in absentia, they may have never even stepped foot into the courtroom. Many of these families are fleeing the continuing violence and economic ruin of countries such as El Salvador, Honduras, and Guatemala.

Although few details have been released regarding the execution of enforcement actions, immigration officers executed removal orders over the weekend which resulted in the arrest and detention of 121 Central American mothers and their children. These raids were targeted against families at their known addresses. These raids seem to have served little purpose than to sow fear in our communities and cause further harm to immigrants who are already fleeing unprecedented violence and persecution in their home countries.