Live Q&A with Stacy Slotnick, Esq. Today 12 PM ET “Joe Giudice Post-Prison Deportation”

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The collateral consequences of criminal convictions are like an episode of a Bravo reality show: sweeping and shocking. Real Housewives of New Jersey star Joe Giudice is prison-bound on March 23. While some media outlets have reported on incarceration conditions at Joe’s new home—the Federal Correctional Institution at Fort Dix—a significant query is how can Joe spend his time on the inside to avoid deportation once on the outside?

The criminal justice system is a primary pipeline into the deportation system. Joe could be removed from the U.S. after his prison sentence due to his criminal plea deal. The Towaco, New Jersey resident is set to begin his 41-month sentence after pleading guilty to charges of lying during bankruptcy proceedings and concealing income. Joe and his wife, Teresa, will learn of the former’s deportation fate in a hearing following his nearly four-year sentence.

Joe is an Italian citizen who has a status as a “Lawful Permanent Resident of the U.S.” even though he has lived in the country since he was a toddler. During an episode of Real Housewives of New Jersey: Teresa Checks In, the family’s attorney James J. Leonard Jr. asked Joe, “If, God forbid, you had to go, do you see Teresa and the girls moving to Italy with you?” Without hesitation, Joe responded he and Teresa talked about it. “Of course she would.” 

Immigration Removal Proceedings

Any non-U.S. citizen facing criminal charges should be aware of the terms and consequences of a guilty plea prior to accepting it. For non-citizens, there is a layer of costs beyond incarceration that stem from a criminal conviction that may be more severe than the criminal penalties themselves.

Removal proceedings are traditionally civil and administrative in nature. Removal proceedings take place in front of an immigration judge, who is responsible for conducting an impartial hearing, listening to testimony, receiving evidence, ruling on legal motions, and arriving at a decision as to whether the alien should be removed from the U.S. The process can take anywhere from a few weeks to years.

One of the main types of offenses that can result in deportation is a crime of moral turpitude—something that is contrary to the social standards of morality and done with malicious intent, such as murder, rape, fraud and crimes where fraud is an element, and perjury. If a person has a criminal conviction that is considered a crime of moral turpitude where he or she receives a sentence of at least one year, that individual probably will not be eligible for a bond. Joe will likely be moved into immigration custody at the end of his sentence.

A removal hearing has two phases—determining whether the alien is removable from the U.S., and if so, determining whether the alien will be granted relief or protection from removal. The process starts when the Department of Homeland Security initiates removal proceedings of a non-citizen for conviction of a crime. It is important to note that there is a strong policy in favor of removal of those aliens who are considered in violation of the immigration laws due to criminal activity. The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division works together with law enforcement to detect any alien currently arrested for violation of a criminal code.   

Deportation proceedings begin with the Immigration and Naturalization Service (INS) issuing a Notice to Appear (NTA) in Removal Proceedings. Thereafter, a Master Calendar hearing is held in Immigration Court so that the alien may respond to the charges. A document lists the charges against the detainee, a description of the illegal activity committed, and a list of provisions of immigration law that were violated.  The Master Calendar Hearing is a preliminary hearing where more than one respondent appears before the immigration judge. After the Master Calendar Hearing, and individual hearing is where the government proves the charges against the alien. At the end of this hearing, the judge decides if the alien will be deported.

The immigration judge has the authority to approve or deny the application based on the person’s credibility, the nature of a criminal conviction, and the strength of the person’s ties to the U.S. Under immigration law, Joe must find a legally recognizable basis for staying.  Most aliens are entitled to an on-the-record proceeding before an immigration judge, who is authorized to grant applications for relief and protection from removal.

The hearing resembles a trial in many respects but is not a purely adversarial process. Among other things, the immigration judge, a Department of Justice employee, is required to consider whether a removable alien may be eligible for any form of relief or protection.

An attorney can help Joe analyze the law in his case, gather evidence, and prepare witnesses and legal briefs. An attorney, who may cross-examine Joe and his witnesses, will represent the U.S. government.  However, by limiting opportunities for Lawful Permanent Residents to testify about equities that may counsel against deportation, immigration law judges can ignore mitigating circumstances that were taken into consideration during the alien’s criminal sentencing, such as whether the person has strong ties to his family and whether the individual has been rehabilitated.

The court’s analysis focuses on documents and transcripts from the record of conviction, which must be proved by clear and convincing evidence.  Since immigration proceedings have long been categorized as “civil” in nature, the Sixth Amendment right to counsel does not apply. There is no general due process right to counsel in removal proceedings.

Joe could appeal the immigration judge’s decision after the judge has made a final decision and issued an order of removal in his case.  The Board of Immigration Appeals (BIA) reviews the conclusions made by immigration judges, which is a paper process where each party can file a brief with grounds. The BIA may affirm the decision of an immigration judge or reverse or remand a judge’s decision. 

Can Joe Overcome Deportation?

Immigration judges have little ability to provide relief in instances in which a person is in deportation proceedings based upon a criminal conviction. Once the conviction is handed down, the damage is done. It is only during the criminal proceeding that a defendant can avoid a conviction or plea to a charge that does not carry immigration consequences.

Still, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that the Sixth Amendment requires defense counsel to advise a non-citizen client of the risk of deportation arising from a guilty plea. Defense counsel’s failure to so warn, or its poor advice regarding immigration consequences of a plea, may constitute ineffective assistance of counsel. Often, when a non-citizen does accept a guilty plea, he will agree to lengthier terms of incarceration, which are recognized as direct consequences of criminal conviction, in exchange for a plea that will not result in removal.

Joe will want to establish that his criminal conviction is not a reliable indicator of undesirability or dangerousness. ICE typically targets potential terrorists and gangs. The removals of aliens who pose a danger to national security or a risk to public safety are ICE’s highest immigration enforcement priority.

Joe’s counsel might employ the following legal strategies in an effort to avoid deportation, but the successes may vary because of his criminal status: Deportation waiver due to hardship for him and/or his family; Cancellation of removal for permanent residents; and Suspension of removal. The problem is that most of these grounds require proof that the alien is “of good moral character” for a certain length of time, usually 10 years. Undoubtedly, the government would usher in evidence of various crimes to offset Joe’s proof allegedly establishing his “good moral character.”

If Real Housewives of New York star Countess LuAnn de Lesseps is to be believed, money can’t buy you class but perhaps it can buy you a ticket out of forced removal from the U.S. Statistically speaking, the vast majority of people who are not represented by a proficient immigration law attorney get deported, while the vast majority of people who have representation are allowed to stay in the U.S. Once deported, Joe would lose his home, businesses, and ability to be with his family.

Immigration law is an exceptionally complex area of judicial practice.

Please post below questions you feel are relevant to this deportation dialogue. Grab your gavel, join the conversation, and let us know what you think about Joe’s chances for removal from the U.S.

Joe Giudice_RHONJ


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