When police stop a driver on suspicion of driving while intoxicated, they often question the person and ask him or her to perform certain standard field sobriety tests. The police also frequently request the driver submit to a “breath test,” which is designed to determine the individual’s blood alcohol level from a sample of the person’s breath.
In New York, if there is a finding that a motorist unjustifiably refused to submit to a breath test, the D.M.V. will impose a one (1) year suspension of the person’s driver’s license. During that suspension, the person is ineligible for a restricted or conditional driver’s license which would otherwise permit the person to drive to and from work during their suspension period. The refusal can also be introduced into evidence against the motorist if he should go to trial on his D.W.I. charge.
Before D.M.V. can impose this one (1) year suspension, the motorist is entitled to a “refusal hearing” before a Judge, at which time the arresting officer must demonstrate he had a legal basis for stopping the motorist and for requesting he submit to a breath test. Most importantly, the officer must also establish he gave the motorist the required, clear and unequivocal, warning that if the motorist does not submit to the breath test, his or her license will be suspended for one year, irrespective of whether or not the motorist is convicted of the underlying DWI charge. Unfortunately, many motorists do not take advantage of their valuable right to such a hearing, or give up their right to be represented by an attorney of their choice, because they mistakenly believe they will never win, or feel the cost of attempting to vindicate their rights is not justified.
The reality, however, is that all too often, the arresting officer fails to provide the motorist with the proper warning regarding the consequences of failing to submit to a breath test, and as a consequence, the motorist does not deserve to have their license suspended. This past week we defended one of our clients at his refusal hearing: he faced both the suspension of his license and the loss of his job. Today we received the Judge’s decision finding, as we had argued, that the officer failed to provide our client with the clear warning of the consequences of refusing to submit to the breath test, to which he was entitled, and so the Judge refused to suspend our client’s license. This case demonstrates an important maxim: your rights are useless unless you assert them.
People in the U.S. have heard that Central American gangs, like MS-13 and the 18th Street gang, are seizing control of the poorer neighborhoods in their countries. They terrorize the residents, forcing them to make regular extortion payments, which they call “rent”. They rob and kill; they traffic in drugs and rape; they forcibly recruit young people into their gang – all with virtual impunity. Those who do not comply, or seek help from the police, are routinely subjected to vicious beatings, and are often killed.
Our client, then a 15 year old Honduran, refused to join the MS-13 gang, despite threats of retaliation. One day while walking home from school, he could not pay the MS-13 members the money demanded of him, so they beat him to the ground, and began kicking him in the ribs and face. He lay on the ground, looking up as a gang member pointed a pistol at his face, and then heard it fire… He woke up in a hospital: he’d been shot twice, at point blank range – in the neck and through his collarbone. Months later, after recovering, he fled to the safety of the U.S..
Earlier this week, at the conclusion of our trial, a courageous Immigration Judge granted our client asylum. For many young Central Americans, asylum cases rooted in gang persecution are almost impossible to win – but if you present a compelling, well documented case, you show your client’s humanity, and help the Judge feel the terror he experienced looking into the barrel of that pistol – you can beat the odds. As an attorney, when you turn the cogs and work the levers on the machine so that it actually dispenses justice, and provides safety for the vulnerable – it is a great feeling.
As a practicing lawyer for 30 years, I have learned that winning at trial or putting together a winning waiver application takes more than expertise in the law, and compelling, well-reasoned arguments: it takes a committed and knowledgeable support staff. While the lawyer may craft the arguments, it is our experienced support staff that lays the foundation for our victories. Our paralegals and clerks follow up with family, friends, physicians and expert witnesses; they obtain the medical records and psychological evaluations we rely upon; the photographs and the documentary evidence – and then they put it all together in a well-organized submission. In this way, Immigration Judges or U.S.C.IS. adjudicators are often moved to want to help our clients after having reviewed our submissions – even before having heard testimony. After many hearings or trials, I have received complements from Judges and U.S.C.I.S. adjudicators about how well documented and organized our submissions were – and this is testimony to the experience and dedication of our support staff. When litigating, a team effort is the key to success.
TRAINING NEW ATTORNEYS IN IMMIGRATION COURT PROCEDURES AT THE AMERICAN IMMIGRATION LAWYERS’ 2016 CONFERENCE
With over 14,000 members, the American Immigration Lawyers Association is by far the largest bar association of immigration lawyers in the country. Every year at their national conference, many thousands of dedicated immigration practitioners gather to review the most recent developments in immigration law, and to discuss cutting edge legal theories relating to defending clients who are facing deportation-removal from the United States. This Friday, June 23rd, 2016, at AILA’s annual conference, held at the Cosmopolitan Hotel in Las Vegas, I will be part of a panel teaching newer practitioners the best practices and procedures for defending non-citizens facing deportation in our nation’s Immigration Courts. When the outcome of a hearing determines the course of someone’s life, it is critical defense counsel be familiar with required courtroom procedures and best practices for organizing and presenting evidence to support the client’s claims for relief! I am looking forward to using my 25 years of litigation experience to help train the next generation of immigration advocates.
Our 17 year old client was arrested and charged with a “B” violent felony assault after members of a gang crashed a birthday party and assaulted his friend. He faced 25 years in prison. In the course of the wild fight which broke out between the guests and the gang members, a gang member was stabbed and seriously injured.The police arrested several people, including our client, who denied involvement in the stabbing, but admitted being involved in the fighting.
We provided the District Attorney’s Office with character letters from our client’s teachers stating he was a model student and athlete, as well as from his employer. We also presented evidence indicating he had not been involved in the stabbing. Our client was permitted to plead guilty to a misdemeanor assault and was adjudicated a “youthful offender” – which resulted in no criminal conviction and a sealed record. After he was taken into immigration custody, we were also retained to defend him in his deportation-removal proceedings. Continue reading
Our client left Vietnam to live in the U.S. when he was 14 years old. When he was 19 he was arrested at school, and charged with attempting to sell some ecstasy he had purchased at a rave in the City. He pleaded guilty to a controlled substance offense. Unfortunately, his defense attorney never warned him his guilty plea made him deportable.
Many years later, now in his late twenties,and a college graduatewith a promising career, our client was detained by I.C.E.attempting to return to the U.S. after a weekend trip to Canada. He learned that despite being a legal “permanent” resident, and despite the many years which had passed, his conviction for a controlled substance offense made him inadmissible to, and deportable from, the U.S.. He was placed into deportation proceedings and faced the frightening reality that he could be deported and separated from his family because of his guilty plea. Continue reading
When he was twelve, our client’s mother died. His stepmother turned him away from his father’s home in Canada, so our foreign-born client visited, and was ultimately raised by, his older sister in New York City. His teenage years and early twenties were troubled, resulting in a series of arrests and convictions for low level offenses. At 30, he married and moved to Florida, where he started a family and has since lived an exemplary life.
Unfortunately, the actions he took as animmature and angry young man frustrated his attempts to gain legal status in the U.S.. He livedundocumented, in fear of deportation. Over the years he spent his limited funds on a series of lawyers who gave him bad advice and whose attempts to gain him legal status were unsuccessful. At his second U.S.C.I.S. interview, his attorney sat silently, with folded hands, when the Officer told him his marijuana convictions barred him from ever becoming a legal permanent resident, and could even lead to his deportation. Continue reading