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  • A New Jersey Appellate Attorney’s Guide to Appeals

    A New Jersey Appellate Attorney’s Guide to Appeals

    No “Do-Overs,” But…

    Trial courts, like everyone, make mistakes. When that happens in New Jersey, you have the right to appeal your matter to the Appellate Division, which will review your case for the alleged mistakes. Your legal counsel, however, needs to preserve your arguments for appeal by raising them in a timely manner before the original trial court. The specific arguments will be raised for appeal before the New Jersey Appellate Division where your case will be reviewed by a panel of three judges who vote on the outcome, as opposed to a singular judge and a jury. The appellate court will review your matter with fresh eyes for legal errors, but if the trial court had to determine a fact—like whether to believe a certain witness—that kind of determination will not generally be overturned.

    The New Jersey Appeals Process

    The appeal process consists of two phases: briefing and argument. The party making the appeal—the appellant—will file an opening brief with the court describing the issues for appeal and their arguments. The opposing side—the appellee—will file a brief responding to those arguments in kind. Finally, the appellant has an opportunity to file a reply brief addressing the arguments raised in the appellee’s brief.

    If oral argument has been requested, and granted, the parties will convene before the panel of three appellate judges assigned to the matter to make their arguments in person. This appeal process is lengthy, and can take well over a year from start to finish, even in the best of times. The briefing and argument process itself can take several months, and the court might not decide the matter for several months more.

    An Appeals Law Firm Needs New Jersey Knowledge

    All appellate courts have different and somewhat complex procedures so it is important to have local experience. There are specific rules about the timing of brief submissions, accompanying papers and submissions, page counts, and even typeset and page formatting. Here is an excerpt from just some of the requirements by which appellate lawyers in New Jersey must abide:

    Paper shall be of good quality, opaque and unglazed. Coated paper may be used. Where the method of reproduction permits, color of paper shall be India eggshell. Copy may be printed on both sides provided legibility is not impaired. Papers shall be approximately 8.5 inches by 11 inches and, unless a compressed transcript format is used, shall contain no more than 26 double-spaced lines of no more than 65 characters including spaces, each of no less than 10-pitch or 12-point type.   

    And the list goes on. Experience matters because it is important to work with appeals lawyers who are knowledgeable about New Jersey’s requirements.

    Our Appeals Advantage

    The attorneys at The Law Offices of Andrew Dressel LLC have a proven record of success in their appeals, based in large part on the overall quality of their work. In the New Jersey appellate process, legal acumen really shines because so much depends on the papers, as opposed to testimony and oral argument. It requires closely scrutinizing the record for every helpful fact, presenting it in a digestible way to the appellate panel, and writing eloquently to really knock down your adversary’s arguments. Also, because it primarily focuses on legal (as opposed to factual) errors, our clients’ benefit from our significant legal research skills. We work to see the language from our own brief show up in the panel’s ultimate decision—confirming our arguments are compelling examples of quality and accuracy.

  • Cannabis is Legal in New Jersey: Now What?

    Cannabis is Legal in New Jersey: Now What?

    A truly historic Election Day full of notable events included the passage of a referendum measure in New Jersey which amends the State Constitution to legalize the use and sale of cannabis beyond the current medical marijuana regime in New Jersey. The vital next step in the process of creating a legal general-use marijuana sales framework in New jersey is the passage of legislation regulating this industry. This legislation is currently being debated in the New Jersey State House. Here is detailed information on the legislation changes:

    More Grow Sites for Medical Marijuana License Holders

    Currently, medical marijuana license holders are permitted to operate up to three dispensaries, but only one grow site. It is anticipated this will be insufficient to meet the expected increase in demand for legal, adult-use cannabis, without crowding out current medical users. The proposed legislation will allow medical marijuana license holders to open two additional cultivation sites, in hopes of alleviating the expected initial crush of demand.

    Increased Number of Licenses

    The present medical marijuana legislation permits the New Jersey Cannabis Regulatory Commission to award only 12 licenses for medical marijuana operation. Again, this will not be enough to meet the increased demand when New Jersey goes from approximately 100,000 medical marijuana users to an anticipated 1,000,000+ recreational users. Therefore, the cap on the number of licenses the Commission can award is being eliminated. The number of licenses will be at the discretion of the Commission.

    Reservation of Licenses

    While the proposed legislation removes the cap on the number of licenses awarded, it also places other restrictions on the composition of licenses in New Jersey. It will be required that 15% of licenses be reserved for racial minorities, with another 15% being set aside for women and veterans. Another 35% of licenses will be reserved for conditional licenses, a shortened process whereby the applicant can receive an expedited license in exchange for certification that the license holder will make up the remaining requirements in an abbreviated time period in comparison to the normal licensure process. Finally, microbusinesses, defined in the legislation as entities with ten or fewer employees, will make up 25% of the license pool.

    Municipal Taxes

    Under the proposed legislation, municipalities would be able to enact their own 2% tax, which could be applied to growers, processors, wholesalers, retailers, and even customers.  Note that the constitutional amend which made way for legalized cannabis caps retail taxes on cannabis sales at 6.625%, the present state sales tax.

    Despite the overwhelming support in New Jersey for the ballot initiative, the nuts and bolts of cannabis legalization in New Jersey is still a legal area in a high state of flux. Negotiations are ongoing in the state legislature and there is a great deal of dispute over tax revenues and how those revenues will be distributed – especially the portion of the revenues which will be re-invested in minority communities. That fight will likely delay legalization legislation for a bit, but the voters have spoken. It is expected that a legalization regime will be in place early next year.

    The attorneys at The Law Offices of Andrew Dressel LLC are monitoring the progress of legalization legislation and stand prepared to advise our clients on the final outcome of the legislative process. If you are interested in starting a business in the New Jersey cannabis industry please reach out to our attorneys by either calling at 848.202.9323 or contacting us through email at andrew@dressellaw.com. We look forward to helping you with whatever inquiries you may have.

  • Outside General Counsel for Your Small-To-Midsize NJ Business

    Outside General Counsel for Your Small-To-Midsize NJ Business

    Small to midsize companies usually don’t have the budget for a full-time in-house general counsel. Yet, securing ongoing real-time legal advice is vitally important for any business, and can help manage risk and exposure. We are here to provide dedicated legal services at a fraction of the cost of a dedicated in-house team, and on a scale that meets your particular business needs.

    Indeed, salaries for a full-time general counsel are generally pretty high, and can start at $200 to $250K per year. Add another 40% for benefits, office space, and supporting staff and the cost is considerable, if not prohibitive. The reality is that most small to mid-sized companies cannot afford, and likely do not even need, a full-time dedicated attorney to provide legal services. Hence, many companies opt to hire an outside general counsel for just a small percentage of the cost of adding an employee. Most outside or outsourced general counsel are lawyers in private practice with a significant amount of general business experience, as well as experience managing litigation.

    The Case for Working with an Outside General Counsel

    Outside general counsel services–also referred to as outsourced general counsel–are provided by lawyers in private practice that will work hand-in-glove with the president and management team as the company’s general counsel. The only difference is that the lawyer doesn’t generally “live” at the company full-time. Rather, he or she provides real time, on-demand advice to the company, serves on the management team, weighs in on the legal implications of important decisions, and manages any litigation the company is facing–from an office outside the company.

    The outside general counsel serves as a remote extension of the company, working with your management team on strategic business planning, contract review and negotiation, employment issues, and any other day-to-day legal matters which occur when operating a business. Outside general counsel generally have a vast network of other lawyers who can be brought in when a legal specialist is required in areas like real estate, insurance, securities, and if the company needs to defend itself in litigation or initiate a lawsuit of its own.

    Outside General Counsel Can Work for Larger Companies Too

    For companies with established legal departments, an outsourced general counsel can be pulled in to handle overflow tasks, fill-in for someone on leave, or tackle a project that the legal department just hasn’t had time to complete. An outside general counsel can provide an extra set of eyes on a specific matter or can bring a unique perspective on a complex legal issue facing the company.

    For companies without established legal departments, an outside general counsel is an economical option to handle various expected and unexpected legal needs with the same level of service as an in-house attorney. This provides your business with more flexibility and financial stability while addressing the important legal needs of your company.

    Affordable Business Legal Options

    The beauty of the outside general counsel arrangement is the balance it strikes between business needs and cost. Whether working within an hourly, retainer, or project-based pricing structure, outside general counsel provide businesses with just the right amount of legal assistance, and through the most sensible and affordable business relationship.  This allows the company to meet its needs without over-extending their financial resources, and provides a scalable legal resource to fit any specific set of needs.

    Moreover, outside general counsel attorneys are skilled in adapting to different corporate environments. They can work on-site at your business as needed, but usually deliver their services remotely from their offices. These options allow outside general counsel to work efficiently providing legal solutions as well as exceptional value.

    Outsourced, Flexible Legal Planning

    Outside general counsel attorneys are experienced and can rapidly onboard into their role as outsourced general counsel. Your outside general counsel will hit the ground running on both long- and short-term projects, and will be able to use their past experience to create a custom legal plan for your business. Working with an outside general counsel will free up the time of the business owner–or in house legal department–to direct their time towards other high priority matters.

    On-Demand Business Advisors and Protection

    Outside general counsel can help you set up or evaluate your business agreements and structure them to prevent legal battles and prevent any disastrous missteps before they occur. An outside general counsel can also help your company carefully craft any employment, partnership, compensation, vendor, or lease agreements which can make or break your company at crucial points of growth or transition. Outside general counsel can provide guidance at all aspects of operating your business including:

    • Business formation
    • Contract drafting and negotiation
    • Governance and compliance
    • Mergers and acquisitions
    • Executive compensation
    • Intellectual property protection and licensing
    • Employment matters
    • Internal investigations
    • Real estate agreements

    Should the need arise, outside general counsel can also be retained to assist or oversee litigation on behalf of your business, should it arise.

    Experienced New Jersey Outsourced General Counsel Attorneys

    At The Law Offices of Andrew Dressel LLC, our services range from serving as your company’s outside general counsel, to working within established corporate legal departments to handle special projects or fill in for attorneys on leave. We have specific, locally-informed knowledge of the systems in which your businesses operate and can assist you in navigating those systems to advise and protect you and your objectives.

    With The Law Offices of Andrew Dressel LLC, companies benefit from our years of specific experience handling business issues for clients in New Jersey, New York, and surrounding areas. We have a passion for local companies and have worked with all sizes of businesses, as well as with several facets of state and municipal governments.

    Find out more about The Law Offices of Andrew Dressel LLC’s Outsourced General Counsel services and let a qualified team of outside general counsel allow you to focus on growing your business, while we focus on handling your pressing legal issues.

  • A Circuit Split Emerges on the Application of Arbitration Clauses to Affiliated Companies

    A Circuit Split Emerges on the Application of Arbitration Clauses to Affiliated Companies

    Spam phone calls have become an unfortunate part of everyday life, even if you have put yourself on a “no call” list. But would you expect that your cell service contract can prevent you from taking the spam callers to court? Well, depending on who your carrier is, who is calling, and what part of the country you are living in, that may very well be the case.

    In a somewhat unique turn of events, two federal courts of appeal, considering virtually the same fact pattern, came to completely opposite conclusions about the reach of an arbitration provision in a cell service contract, about a month apart from each other. The arbitration provision is found in an AT&T wireless agreement and requires customers to arbitrate “all disputes and claims” between the customer and any of AT&T’s “subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.” The dispute at issue, however, involved purported spam phone calls from DirectTV, a subsidiary of AT&T, and claims under the Telephone Consumer Protection Act. Are such claims arbitrable? Apparently, this now rests on which circuit you happen to be filing suit in.

    The Fourth Circuit’s View-Mey v. DirectTV LLC

    In an August 2020 decision, the Fourth Circuit Court of Appeals held that these claims were in fact subject to arbitration. Noting the broad rule that federal courts are directed, under the Federal Arbitration Act, to construe arbitration clauses in a way that favors arbitration, the court held in its decision in Mey v. DirectTV LLC, that DirectTV clearly was a subsidiary of AT&T, that the parties had clearly agreed to a very broad arbitration provision that would include “all disputes and claims,” and that therefore the claims had to be arbitrated. The fact that the average consumer would not have contemplated that a cell service contract would be applied to a television provider or would know the byzantine corporate history that made DirectTV a subsidiary of AT&T was of no consequence. Indeed, as the court noted, the arbitration provision also applied to successors and assigns, two groups that could not possibly be known at the time of contracting. The parties agreed to a broad arbitration provision, one that could include disputes wholly unrelated to the contract containing the arbitration provision, and therefore the arbitration clause should be read to encompass the TCPA suit.

    The Ninth Circuit’s View-Revitch v. DirectTV LLC

    However, confronted with the exact same fact pattern, the Ninth Circuit Court of Appeals took a completely different tack. In Revitch v. DirectTV LLC, the Ninth Circuit court held that the TCPA suit was not encompassed by the arbitration provision. The Ninth Circuit court held that because DirectTV was not affiliated with AT&T at the time the cell service contract was entered into, the customer could not reasonably have anticipated that he would be agreeing to arbitrate disputes with DirectTV. Per the Ninth Circuit, it would be an absurd interpretation of the word affiliate to include companies not affiliated, or anticipated to be affiliated, with AT&T at the time the contract was entered into. My own view is that the Fourth Circuit likely has the better of this particular argument. As the Fourth Circuit court correctly pointed out, successors and assigns are per se unknown at the time a contract is consummated, but it is not absurd to say they fall within the ambit of an arbitration provision.

    The better argument may be the one adopted in a concurrence written by Judge O’Scannlain in concurrence with the majority opinion (also written by Judge O’Scannlain). In his concurring opinion, Judge O’Scannlain writes that the DirectTV suit is simply outside the scope of the arbitration provision because it does not “aris[e] out of” the cell service contract, as required by the Federal Arbitration Act. The lawsuit regarding DirectTV’s purported spam phone calls has no relation to a contract for cell service. This seems to me to be a much better way of squaring the broad arbitration provision agreed to and the intuitive sense most people have that a cell service contract should not create an agreement to arbitrate disputes with what was, at the time of formation, an unrelated company.

    These cases highlight the importance of careful drafting when putting together and negotiating a contract, particularly with regard to dispute resolution clauses. Whenever you or your business find yourself negotiating a contract of importance, it is key to hire experienced counsel who can recognize the subtleties that can lead to unintended consequences down the road. The Law Offices of Andrew Dressel LLC is a sophisticated firm with the skills necessary to both avoid unfortunate surprises in your agreements, as well as to negotiate the most favorable terms possible for you and your business. Whether you are seeking counsel for a “one off” contract or to engage an outside general counsel on a regular basis, please contact us through our online form, or by calling us at (848) 202-9323.

  • Non-Immigrant Visas: A Short Overview

    Non-Immigrant Visas: A Short Overview

    For those seeking temporary admission to the United States, there are a variety of visas available. However, each visa has its own unique qualification system, duration and potential pathway to permanent admission. Generally, there are six types of non-immigrant visas: (1) tourism; (2) educational; (3) special or family-related; (4) work or business; (5) governmental or quasi-governmental; and (6) miscellaneous. These visas are outlined below.

    Tourism

    B-2-A tourist visa. Note that residents of some countries may enter the United States for tourist purposes under the Visa Waiver Program. Residents of countries that are not governed by the Visa Waiver Program must apply for B-2 visa if they wish to visit for tourism purposes. When evaluating whether to grant a B-2 visa, consular officials must be convinced that the person coming to the United States will not engage in work; is coming for a short period of time with a clear purpose; and unmistakably will depart at the end of the visit.

    Educational

    F-1-The most common of the education study visas, designated for persons coming to engage in academic study in a full-time program at an approved institution. The F-1 visa statute prohibits persons seeking a student visa from studying at a public institution unless she will attend the school for less than 12 months and shows that she has paid the school the full unsubsidized per capita cost of the education. An applicant will have to show that she has sufficient funds to pay for the education without having to work, and that he or she has sufficient preparation to complete the course of study.

    J-1-These visas are for persons coming to the United States as students, researchers, professors, nonacademic specialists, physicians, international visitors, camp counselors, au pairs, or summer students in travel/work programs. Persons on a J-1 visa may be subject to a two-year foreign-residency requirements before changing visa status or obtaining permanent residency. This requirements if triggered if (1) the person’s program was financed in whole or in part by the US government, or by the government of the person’s nationality or country of last residence; (2) if the person was engaged in a field that was designated at the time of their entry as in short supply or needed in the person’s home country; 0r (3) if the person obtained medical training after January 10, 1977.

    M-1-This is a visa program for vocational students engaged in a full-time program at a recognized nonacademic institution.

    Special and Family-Related Visas

    K Visas-K-1 visas are for fiancé(e)s of U.S. citizens for the purpose of getting married within 90 days of admission. K-2 visas are for minor children of K-1 visa holders. K-3 and K-4 visas are issued to spouses of U.S. citizens and their minor children for a two-year period while the pending immigration petition is processed.

    V Visas-These visas are for those married to a permanent residents, or the children of permanent residents, for whom a petition was filed on their behalf prior to December 21, 2000.

    Work or Business

    B-1-The B-1 Visa is for those traveling to the United States for business other than “work.” The individual must not intend to abandon their foreign residence. Examples of reasons for a B-1 visa would be to negotiate a business deal or attend a conference.

    E visas-These visas are for treaty traders and treaty investors. They allow persons to stay indefinitely in the United States under a treaty of commerce between the United States and their home country. Treaty investors are persons developing an enterprise in which they have invested a substantial amount of capital.

    H-1B-This visa allows persons engaged in “specialty occupations” to come to the United States to work. A “specialty occupation” is defined as a job that requires “the theoretical and practical application of a body of highly specialized knowledge” and a bachelor’s degree or higher. There is an annual quota on H1-B visas. The employer, in order to sponsor H1-B visas, must obtain a certification of a labor condition application from the Department of Labor.

    H1-C-This visa is for professional nurses working in health care professional shortage areas.

    H2-A-This visa is temporary or seasonal agricultural workers. Non-agricultural workers are admitted under the H-2B visa. H-2B visas are subject to quotas and require Department of Labor approval.

    H-3-This visa is for persons who are receiving instruction or training in any field, as well as training in a purely industrial establishment, with the exception of graduate medical training or education. The H-3 visa is only available if the equivalent training is not available in the home country, the foreign national will not be placed in a position where U.S. workers are regularly employed, and the training will help the foreign national pursue a career outside of the United States.

    I visas-These visas are for representatives of foreign media.

    L visas-These visas are designed for intracompany transfers of persons who serve a company in a managerial or executive capacity, or who possess specialized knowledge. L-2 visas permit the admission of spouses and children of L-1 visa holders.

    O visas-These are for individuals who have demonstrated extraordinary abilities in the sciences, arts, education, business, or athletics. The O1-AB visas are for those in motion picture or TV production.

    P visas-These visas for athletes and entertainers, particularly those that perform as part of a group.

    Q visas-Q visas are for persons participating in an international cultural exchange program approved for the purpose of providing employment, practical training, and the sharing of history, culture and traditions of the person’s country of nationality.

    R visas-These visas are for ministers and persons working in a professional capacity for a religious organization.

    TN visas-TN visas are for Canadian and Mexican nationals who seek “temporary entry as a business person to engage in business activities at a professional level.”

    Law Enforcement-Related Visas

    S visas-S visas are for individuals who have important and reliable information concerning a criminal organization or enterprise.

    T visas-These visas cover those that have been subjects of severe human trafficking.

    U visas-These visas are for individual who have been victims of serious violent crimes and have been helpful, currently are helpful, or likely to be helpful to a federal, state, or local law enforcement official.

    Governmental or Quasi-Governmental

    A visas-These are for individuals with diplomatic immunity.

    G visas-These are for officials, employees, and dependents of international organizations that are quasi-governmental, like the UN or World Bank.

    This guide was only meant as an introduction to the types of non-immigrant visas. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.

    The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

  • Understanding Refugee Status and Asylum

    Understanding Refugee Status and Asylum

    There has been much talk in the news recently regarding refugee and asylum procedures. United States law provides for the protection of people overseas from persecution. The refugee and asylum systems are complicated. This post attempts to shed some light on the processes.

    Refugee Status

    Those seeking refugee status are persons outside the United States who seek entry to the United States because they are “unable or unwilling to return to, and [are] unable or unwilling to avail [themselves] of the protection of [their country of origin] because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

    What qualifies as persecution? Courts have defined persecution as the infliction of suffering or harm in a way regarded as offensive. This can include both physical harm and substantial economic deprivation. The harm can be harm that as inflicted in the past or is feared in the future. The harm need not be inflicted by the foreign government but can also be inflicted by persons the foreign government is unable, or unwilling, to control. The fear must be “well-founded” such that a reasonable person would possess this fear.

    The persecution must also be “on account of race, religion, nationality, membership in a particular social group, or political opinion.” There is a great deal of case law on the meaning of the terms race, nationality and membership in a particular social group, but courts tend to take an expansive view of these terms (or at least have done so historically). Recent cases have held that gender can count as membership in a particular social group, almost always in the context of gender-based violence towards women. This includes case law that treats domestic violence in certain counties as persecution based on membership in a particular social group. There has also been recent success for those seeking refugee status to flee gang violence in certain countries, particularly by informants, former gang members and family members of those targeted by criminal gangs. There are also protections for those fleeing coercive population control, such as forcible abortion or sterilization.

    Discretionary denial of refugee status is permitted in cases in situations involving past persecution where a change of circumstances within the country of origin have eliminated any well-founded fear of persecution, or the applicant could relocate within the country of origin to avoid persecution. It is mandatory that refugee status be denied where: (1) the applicant ordered, incited, assisted, or participated in the persecution of others; (20 the applicant has been of a particularly serious crime (including any aggravated felony) in the United States and constitutes a danger to the community; (3) there are serious reasons to believe that the applicant has committed a serious, non-political crime outside the United States; (4) there are reasons to believe that the applicant constitutes a danger to the national security of the United States or is a suspected terrorist; (5) the applicant has been firmly resettled in a third country; (6) the applicant has previously applied for and been denied asylum in the United States or failed to file for asylum within one year after arriving in the United States; or (7) the person may be removed under a bilateral or multilateral agreement to a safe third country where the person’s life or freedom would not be threatened and where he or she would have access to a full and fair procedure for determining the asylum claim.

    Ultimately the granting of refugee status and asylum is discretionary. The United States government caps the number of refugees permitted in a given year. Once a refugee is given a travel document that person has four months to come to the United States and seek admission and one year to apply for lawful permanent resident status.

    Asylum

    Asylum procedures, which govern persons already inside the United States, differ slightly from overseas refugee procedures. Those who apply for asylum at a point-of-entry will be screened in an expedited removal process. This process will determine whether there is a “credible fear” of persecution, and if one exist, a hearing before an immigration judge will be set. The applicant may also request review of the credible fear determination by an IJ.

    Persons already in the United States may submit a claim to an asylum officer. If the asylum officer denies the claim, removal proceedings will commence. Applicants may also make defensive claims of asylum when removal proceeding s have already commenced.

    Other Refugee Procedures

    There are other methods for gaining entry to the United States to avoid persecution. These include withholding of removal, where an applicant makes a showing of “clear probability” of a “threat to life or freedom.” If this more demanding standard is set, entry must be permitted. Under the Convention Against Torture a person may not be removed to a country where there are substantial grounds for believing that the individual would be in danger of torture or subject to inhumane or degrading treatment. The burden is on the person seeking admission to prove this, but if proved, it is an absolute bar to removal. Finally, temporary protected status permits the U.S. government identify nationals of a particular country experiencing a national emergency who may stay in the United States during the period of the emergency, such as a civil war or natural disaster. The person must be in the United States at the time of TPS designation to qualify.

    As one can see, there are many issues raised when considering a request for asylum or refugee status. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.

    The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

  • Grounds for Removability from the United States (Deportation or Denied Entry)

    Grounds for Removability from the United States (Deportation or Denied Entry)

    There are several reasons that a person seeking admission to the United States may be denied entry or a person present within the United States may find themselves facing removal (deportation). Understanding these grounds for removability is necessary to determine what options you may have for gaining entry to, or remaining in, the United States.

    Denied Entry to the U.S. on Health-Related Grounds

    Persons who have a communicable disease of public health significance, who have not been immunized from certain diseases, or who have psychological problems that might render them dangerous to others or to themselves may not be admitted to the United States. A determination of inadmissibility for these reasons may be reviewed by a panel of physicians and the individual denied entry may bring his or her own medical expert to dispute the determination. Drug abusers, defined as those who engage in nonmedical use of a substance listed in § 202 of the Controlled Substances Act, are also inadmissible on health-related grounds.

    Individuals already within the United States are not subject to removal for health-related grounds.

    Denied Entry or Deportation on Criminal Grounds

    Persons who have committed or admit to the commission of acts that constitute the essential elements of a crime of moral turpitude (including attempts or conspiracy) or a violation of state, federal, or foreign laws relating to a controlled substance are inadmissible to the United States. There are exemptions for “petty offenses” where the person committed only one crime of moral turpitude and either the person was under 18 when the crime was committed (and was released from any confinement more than 5 years prior to the date of application for admission) or the maximum penalty for the crime did not exceed one year in prison and the person was not sentenced to a term of imprisonment of more than six months.

    In addition to crimes of moral turpitude (committed within five years of the latest entry) and controlled substance violations, crimes of domestic violence, firearms convictions, and aggravated felonies can all lead to deportation. Aggravated felonies include crimes involving rape, sexual abuse, illicit trafficking in a controlled substance, money laundering, firearm offenses, crimes of violence, theft offenses for which the term of imprisonment imposed is at least one year, and fraud or deceit crimes in which the loss to the victim exceeds $10,000. For a person to be deported on criminal grounds the person must be convicted of the offense at issue.

    Denied Entry or Deportation on Security and Foreign-Policy Grounds

    There are a variety of security and foreign-policy grounds for denying a person admission to the United States, including espionage, sabotage, illegal export of sensitive information, goods and technology, terrorism, Communist membership, and membership in a totalitarian political party. Other unique foreign-policy grounds for denying admission exist as well.

    Persons may be deported on foreign-policy grounds for similar reasons, including the violation of laws relating to the export of goods, technology, or sensitive information, criminal activity that endangers the public safety and national security, or activity that has as its purpose the overthrow of the U.S. government by force, violence, or other unlawful means.

    Denied Entry or Deportation on Economic Grounds

    Admission may be denied to those “likely to become a public charge.” Generally, this concern arises in the context of family-based immigration and is overcome by the submission of an affidavit of support by the sponsor. The sponsor must show an income of 125% of the poverty line. This test may also be satisfied through a showing of assets.

    Those who become a public charge within five years of admission, due to circumstances that did not arise after admission, are subject to deportation. Note that presently the person must have received what amounts to a cash payment from a government entity. However, this is a potentially changing area of the law, and it is unclear what changes may be made to the public charge definition. For deportation to occur, the entity that conferred the benefits must make a demand for repayment that was refused.

    Denied Entry or Deportation for Immigration Law Violations

    Persons may be inadmissible who:

    1. were not admitted or paroled;
    2. failed to attend their removal hearing without reasonable cause;
    3. committed fraud and misrepresentation;
    4. are stowaways;
    5. knowingly encouraged, induced, assisted, or aided another to enter the United States in violation of the law;
    6. have been fined for making false documents or using someone else’s lawfully issued documents; or
    7. entered the United States to study at a private institution and improperly switched to a public institution in violation of 8 U.S.C. § 212(a)(6)(G).

    Notably, a person who willfully misrepresents a material fact in obtaining or seeking to obtain a visa, documentation, or admission to the United States may be forever inadmissible. However, there are a variety of penalties that may attach to different violations of the immigration laws and it is best to consult with an attorney when facing potential removal for immigration law violations.

    Additionally, failure to maintain status and failure to notify change of address may result in removal.

    Denied Entry on Quasi-Criminal and Moral Grounds

    There are other grounds for denial of admission that are not necessarily criminal, such prohibitions on the admission of persons coming to practice polygamy, as well as those who engaged in, or seek to engage in, prostitution, or who have sought to procure a prostitute within the last 10 years. Whether these activities were legal in the country in which they took place is of no consequence.

    As one can see, there are many grounds for removal, and any interaction with the United States immigration authorities should be taken seriously. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.

    The above is general information only and is not to be relied upon as legal advice. It does not create an attorney-client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.

  • U.S. Immigration Agencies — Understanding the Alphabet Soup of Immigration

    U.S. Immigration Agencies — Understanding the Alphabet Soup of Immigration

    As you interact with the United States immigration system you will encounter several acronyms and abbreviations. This is a helpful guide to the basics of this alphabet soup of U.S. immigration agencies, courts and departments you may be dealing with:

    DHS — Department of Homeland Security

    This is the Cabinet department that oversees U.S. Customs and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE), all of which are described below.

    USCIS — U.S. Citizenship and Immigration Services

    This is the agency responsible for adjudicating immigration benefits, such as change and extension of visas; granting green cards; naturalization; and asylee and refugee matters.

    CBP — U.S. Customs and Border Protection

    This agency is responsible for all matters relating to the inspection of persons and goods arriving at the border.

    ICE — U.S. Immigration and Customs Enforcement

    This agency is responsible for investigating violations of the immigration laws and enforcing the departure of non-American citizens who are not authorized to be in the United States.

    AAO — Administrative Appeals Office

    This is the appellate body within the USCIS that reviews USCIS decisions.

    DOS — Department of State

    This Cabinet department is still the primary decision-making authority over the issuance of visas. When a person applies for a visa, he or she does so overseas before an American consul, who is under the authority of the Secretary of State. Although the consular officer has the authority to issue the visa, the rules governing the requirements for the visa are promulgated and interpreted by the Department of Homeland Security. The Department of Homeland Security assumes control over the entry of the visa-holder once they arrive at the border.

    EOIR — Executive Office for Immigration Review

    These are the immigration courts that decide issues of removal.

    DOJ — Department of Justice

    This Cabinet department oversees the Executive Office for Immigration Review.

    INS — Immigration and Naturalization Service

    The INS no longer exists, but for decades was the agency responsible for administering immigration policy.

    IJ — Immigration Judge

    This is the individual who will hear matters regarding detention and removal.

    BIA — Bureau of Immigration Appeals

    This agency hears appeals of decisions by immigration judges.

    OSC — Office of Special Counsel

    This Department of Justice agency is responsible for immigration-related employment discrimination.

    OCAHO — Office of the Chief Administrative Hearing Officer

    This DOJ office hears antidiscrimination claims and cases involving sanctions imposed on employers who illegally hire foreign workers.

    DOL — Department of Labor

    This Cabinet department makes decisions involving the U.S. labor market and workforce issues.

    BALCA — Board of Alien Labor Certification Appeals

    This agency within the Department of Labor reviews the Department of Labor decisions.

    HHS — U.S. Department of Health and Human Services

    HHS retains jurisdiction for some decisions made regarding unaccompanied minors in removal proceedings through the Office of Refugee Resettlement.

    While there are additional agencies that may be involved in an immigration matter, these agencies are the primary agencies you will encounter when dealing with the United States immigration system. If you have a question about an immigration matter, please contact The Law Offices of Andrew Dressel LLC for a free consultation with an immigration attorney to further discuss your immigration needs.