Saturday, November 8, 2014

California Proposition 47 Offers Deportation Relief to Certain Aliens with Criminal Convictions

Last Tuesday, November 4, 2014, California Voters approved Proposition 47, which brings changes to California criminal law and procedure that will affect thousands of immigrants facing deportation due to pending and prior criminal cases.

The “Safe Neighborhood and Schools Act,” known as “Prop 47,” reduces certain felony and “wobbler” offenses for simple drug possession to straight misdemeanors, reduces many theft and burglary-related wobblers to straight misdemeanors and retroactively allows most people convicted of felonies under prior law to seek reduction of their convictions to misdemeanors if their crimes would not have been felonies if committed after November 5, 2014, the law’s effective date.

Under the new Prop 47 statute, aliens who have are being prosecuted for deportable felonies and wobblers now may be able to avoid convictions that would otherwise render them ineligible for relief from removal and those who have already been convicted may possibly reduce their convictions to misdemeanors and obtain relief from orders of deportation and removal.

As of the effective date of Prop 47, November 5, 2014, a new crime of “shoplifting” is now defined as entering a commercial establishment during business hours with the intent to steal items valued at $950 or less. Any such crime can no longer be charged as “theft” or “commercial burglary.”

This change in California criminal law is extremely important to anyone facing deportation or removal proceedings, since previously, District Attorneys across the state have been charging even “petty theft” crimes as “burglaries” and “theft,” creating the danger of deportation proceedings and possibly an “aggravated felony” with no relief if the sentence was one year or longer in jail.

Prop 47 also makes forgery of checks for “Non-Sufficient Funds”, “grand theft” and receiving stolen property all misdemeanors, unless the value of the checks or property involved exceeded $950.00.

Certain drug crimes will also receive more favorable treatment as “misdemeanors” under Prop 47. Simple possession controlled substances, as well as simple possession of concentrated cannabis or “hashish” are now misdemeanors. “Simple possession” generally means the drug was possessed for personal use and not for sale or trafficking to others.

These changes are enormously important, as many “possession” charges could have been classified as “felonies” under California law and considered “aggravated felonies” under the Immigration and Nationality Act, making a convicted immigrant ineligible for relief from removal.

The changes in the law, under Prop 47, apply to most defendants, except those previously convicted of certain sexually violent offenses, child molestation offenses, cases of elder abuse and homicide.

The provision of Prop 47 having perhaps the most immediate impact on deportation cases is the new California Penal Code section 1170.18, which permits a person previously convicted and sentenced to a felony that is now a misdemeanor to petition for resentencing under the new misdemeanor provisions. The sentencing court should resentence the petitioner in these cases, unless the person is considered an “unreasonable risk” to commit one of an enumerated list of certain violent crimes in the future. Under Prop 47, a post-conviction redesignation of a felony to a misdemeanor is valid for “all purposes,” including deportation treatment.

Aliens who have been ordered deported, are facing possible deportation due to previous convictions, or who are facing pending criminal charges are all impacted by this legislation. Any immigrant fitting in these categories should immediately consult with an immigration attorney to ascertain whether their criminal matter qualifies for relief under Prop 47.

Tuesday, November 4, 2014

Tri-Valley University Founder and President Sentenced to 16 Years in Prison

A San Francisco area woman was sentenced to more than 16 years in prison for running what prosecutors said was a sham university that served as a front for an immigration scam.

Susan Xiao-Ping Su, founder and president of the phony Tri-Valley University, was accused of charging foreigners tuition and other payments for visa-related documents that allowed them to live in the U.S. while she purported that they were here legally to study. She made more than $5.6 million and used the money to buy commercial real estate, a Mercedes Benz and multiple homes, including one at a golf club, federal prosecutors said Monday.

U.S. District Court Judge Jon S. Tigar sentenced Su, 44, on Friday after she was convicted in March of visa fraud and other charges. She was also ordered to forfeit $5.6 million and pay more than $900,000 in restitution, prosecutors said.

"Student visas are intended to give people from around the world a chance to come to this country to enrich themselves with the vast learning opportunities available here," Tatum King, acting special agent in charge for Homeland Security Investigations, San Francisco, said in a statement. "But in this case, the defendant was interested in a different kind of enrichment, her own."

The Tri-Valley case is not unique in the San Francisco area. Jerry Wang, the chief executive officer of Herguan University and the University of East-West Medicine, is also facing visa fraud charges in connection with what authorities say is a similar scheme. He has pleaded not guilty and is scheduled to go on trial next month.

In the Tri-Valley case, employees testified that the school had no graduation or admission requirements, and that Su instructed her staff to fabricate transcripts and other documents.

The school described itself as a "Christian higher education institution" that provided higher education in engineering, business and ministry, according to court documents.

Su allegedly paid recruiters for referring new students