Massachusetts Extends Padilla Protections for Noncitizen Criminal Defendants to Include Trial Convictions

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In Commonwealth v. Marinho, although the Massachusetts Supreme Judicial Court denied a non-citizen defendant’s request for a new trial, it significantly increased a non-citizen defendant’s protection under the Sixth Amendment.

Facts:

On February 17, 2010, the defendant, Allesandro Marinho was convicted of assault and battery causing serious bodily injury. He was sentenced to two and one-half years in a house of correction, nine months to serve with the balance suspended.  The defendant was not a United States citizen and was deported after being convicted.

The defendant filed a motion for a new trial alleging ineffective assistance of counsel, claiming that his lawyer failed to (1) advise him of the immigration consequences of an assault and battery conviction, (2) explore a plea resolution, and (3) advocate for a sentence that might have mitigated such immigration consequences.

Holding:

In order for a defendant to successfully claim ineffective assistance of counsel, a two-prong test, known as the Saferian test, must be satisfied.  First, the defendant must show serious incompetency, inefficiency, or inattention of counsel– behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.  If that is found, the defendant must then show that the claimed ineffective assistance has deprived him of an otherwise available, substantial ground of defense.[1]

As the number of deportable offenses has continued to increase in recent history, the United States Supreme Court recently addressed the issue of a noncitizen defendant’s Sixth Amendment rights with respect to assistance of counsel.[2]  The Supreme Court, in Padilla v. Kentucky, held that constitutionally competent counsel would have advised the defendant that a guilty plea for drug distribution made him subject to automatic deportation.  The Court’s reasoning focused mainly on the landscape of federal immigration law and the significant changes that have occurred.

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  The importance of accurate legal advice for noncitizens accused of crimes has never been more important.  These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”[3]

In light of Padilla, the SJC held that defense counsel is required to inform a non-citizen client that a conviction at trial may carry immigration consequences.  In announcing their holding on this issue, the SJC expanded on Padilla and now provides additional protection to non-citizen defendants.  Thus, as defense counsel was required to inform the defendant of any consequences resulting from a conviction, the first prong of the Saferian test was not met.

The SJC also stated defense counsel’s failure to discuss plea resolution with the defendant and failure to advocate for a lesser sentence also failed the first prong of the Saferian test.

After concluding that defense counsel’s performance fell below the standard set out in Saferian, the SJC then had to determine whether the second prong was met; whether the defendant was prejudiced by the ineffectiveness of defense counsel.  The SJC determined that while satisfying the first prong, the defendant failed to provide sufficient proof of prejudice and therefore, the defendant is not entitled to a new trial.

While defense counsel’s failure to discuss the possibility of a plea with the defendant falls below the level of professionalism for attorneys, in order to show prejudice the defendant must:

“Demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.  Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution cancelling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”[4]

The SJC reasoned that the evidence provided by the defendant only establishes that defense counsel failed to engage in plea negotiation or discussing that option with the defendant and there is no evidence to suggest that the prosecutor would have offered the defendant a plea deal.  Finally, the SJC held that had the defendant been given a lesser sentence, there is nothing to suggest that it would have resulted in the defendant “flying under the radar” and avoiding deportation.


[1] Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

[2] Padilla v. Kentucky, 130 S.Ct. 1473, 1476 (2010).

[3] Id. at 1480.

[4] Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012).

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US Citizenship Through Islamic Finance Compliant Investments: The EB-5 Investor Visa Program

By: Wassem M. Amin, Esq.

ImageThe United States is one of the largest recipients of foreign direct investment from the Middle East, particularly from Saudi Arabia, Kuwait, Qatar, and the United Arab Emirates.  Despite the economic recession, investors from these countries continue to diversify within the U.S. financial and real estate markets.

Unbeknownst to many foreign investors, however, is that a collateral, or perhaps primary, benefit of investing in the United States may be the ability to obtain permanent residency and eventual citizenship.  A foreign investor who makes a qualifying investment can apply to obtain a green card (permanent resident card) and, eventually, United States citizenship if they meet all the criteria of the EB-5 immigrant visa program.

However, a challenge for many Middle Eastern investors is the ability to procure an EB-5 qualifying investment that will also adhere to the principles of Islamic Finance.  There are several methods to structure an EB-5 investment to be Islamic-finance compliant, one of which is discussed in this post.

The EB-5 Program

The United States Congress created the employment-based EB-5 immigrant visa category in 1990 for immigrants who invest in and manage U.S. commercial enterprises that benefit the economy.  To qualify, investments must create at least 10 full time jobs for U.S. workers.  The minimum investment required is $1 million, although that amount is reduced to $500,000 if the investment is made in a high unemployment area or a qualifying rural area.  Immigrant investors who successfully qualify would obtain a permanent resident card with the opportunity to apply for citizenship after 2 years.

In 1992, to stimulate interest, Congress enacted the EB-5 Regional Center Pilot Program.  The program allowed public and private entities to apply to the United States Citizenship and Immigration Services (“USCIS”) to be designated as a regional center.  The regional center would, in turn, develop qualifying investments for foreign investors under the EB-5 program.  Regional centers provide a structure for focusing foreign investment in a specific U.S. geographic area and for promoting economic growth in such area through increased export sales, creation of new jobs, and increased domestic capital investment.  For an immigrant investor, the benefits of investing through a regional center are numerous.  Typically, a regional center investment has already been evaluated for feasibility.  Similarly to a real estate developer who is raising capital, a regional center would already have prepared business plans, private placement memorandums, feasibility studies, and other offering documents.  In the case of an EB-5 investment, the regional center would have also completed economic impact studies to demonstrate to USCIS that it meets the job-creation criterion. In addition, most regional centers hold an immigrant investor’s funds in an escrow account pending USCIS approval of the investor’s EB-5 application.   Therefore, if the application is denied for any reason, the investor recovers his or her principal investment.

Most Regional Center investments are in large real estate development projects.  For example, a recent example of a regional center I have advised was structured as a partnership to invest in the expansion of an established ski resort in the state of New Hampshire.  The partnership was structured as a limited partnership, with the foreign investors designated as the limited partners and the real estate developer as the general partner.  Such a partnership can also comply with Islamic finance principles, subject to the requirements discussed below.

Structuring the Investment to be Islamic Finance (Shari’a) Compliant

Islamic Finance products and instruments set out to achieve the same business goals as conventional finance products and instruments, but within the constraints of Islamic rulings.  Islamic-compliant financial solutions range from profit-and-loss sharing mechanisms, consumer finance, trade finance, working capital finance, and project finance.  Broadly speaking, Islamic finance prohibits excessive risk or speculative investments and the payment or receipt of interest.  In addition, risks in any transaction must be shared between the parties, so that the provider of capital (investor) and the entrepreneur share the business risk in return for a share in the profits.

A Regional Center may qualify as an Islamic-finance compliant investment by structuring the entity as a partnership.  A permissible method of Islamic financing is a musharaka, which, in Arabic, literally means “sharing.”  A musharaka is a joint enterprise formed for a business purpose in which all partners share profits according to a predetermined ratio.  However, the key difference is that losses must be divided exactly in accordance with the pro rata share of capital invested by each partner.  In the context of real estate and project financing, the foreign investor, as a limited partner, would contribute capital while the real estate developer, as the general partner, would contribute either real estate assets or additional capital.

To ensure compliance with Islamic finance principles, the agreement between the partners would need to describe the capital contributions and the allocation of profits and losses, as well as the management responsibilities (which would normally be undertaken by the real estate developer as general partner).  The real estate developer would then undertake the project using the capital and other contributed assets in the construction and operation of the project.

Disclaimer: This article is for informational purposes only and does not constitute an offer or solicitation to sell shares or securities. None of the information or analyses presented are intended to form the basis for any investment decision, and no specific recommendations are intended. This article does not constitute investment advice or counsel or solicitation for investment in any security.  These materials have been prepared by Wassem M. Amin, Esq. for informational purposes only and are not legal advice.  The material posted on this web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.

Demystifying the Saudi Arabian Market: Investment Options and Establishing a Presence (Part 2)

doing-business-in-saudi-arabia_mainBy: Wassem M. Amin

Saudi Arabia’s Foreign Investment Regulations give foreign investors a variety of options in determining how to conduct business operations in the Kingdom.  However, regardless of the option chosen, if a physical commercial presence is established, foreign investors must first obtain a foreign capital investment license from the Saudi Arabian General Investment Authority (SAGIA).

Establishing a Physical Presence

Investments in Saudi Arabia may be through the formation of a new business entity or through the acquisition of assets or equity in an existing company.  Commercial enterprises by foreign companies may be structured as any of the following: (1) joint ventures, (2) wholly owned subsidiaries, (3) local branches of a foreign company; or (4) representative or agent offices.

The principal body of law governing commercial enterprises in Saudi Arabia is the Companies Regulation, which is enforced and regulated by the Ministry of Commerce and Industry.  In some circumstances, an enterprise may be subject to the rules and regulations of additional regulatory bodies such as the Saudi Arabian Stock Exchange (Tadawul), the Saudi Arabian Monetary Agency (SAMA), or the Capital Market Authority (CMA).

In terms of the legal type of entity established, foreign investors have several options to consider–depending largely on the scope and type of the proposed enterprise as well as the investor’s exit strategy.  The types of entities are: (1)  Joint Stock Company; (2) Limited Liability Company; (3) Joint Venture; (4) Branches of foreign companies; and (5) Technical and Scientific offices of foreign companies.

Joint Stock Company (JSC): JSCs are the most analogous entity to a C-Corporation in the United States.  They may be wholly foreign owned and are typically established with the intent towards a future public offering and listing on the Saudi Stock Exchange (Tadawul).  A minimum of 5 shareholders and 3 directors on the board of directors is required.  The minimum initial capitalization required is 2 Million Saudi Riyals (SR), which rises up to SR10 Million if the JSC will issue publicly traded shares.

Limited Liability Company (LLC): As with JSCs, Saudi law permits an LLC to be wholly foreign owned and managed.  LLCs must have at least 2, but not more than 50, member-investors. Each member owns a pro-rata equity share equal to the uniform nominal value.  Liability of individual members, under most circumstances, is limited to the member’s paid-in capital.  Minimum initial capitalization for an LLC with any foreign members is typically SR500,000.  However, for certain industries, such as agricultural or industrial projects, the minimum capital may be much higher.  Unlike JSCs, LLCs do not issue shares and cannot be publicly traded on the Saudi Arabian Stock Exchange.

Joint Ventures – LLCs and JSCs may both be wholly owned or established with a Saudi business partner.  The decision to establish a Saudi partner may be mandatory in some fields, such as establishing a branch of international law firm.  However, in other cases, a foreign investor may benefit from a Saudi partner’s expertise and familiarity of the local market, customs, and traditions.  The risks and benefits of doing so must be carefully analyzed after thorough due diligence is conducted.

Branches of Foreign Companies – Branch offices are set up to represent foreign companies in Saudi Arabia.  Similarly to JSCs or LLCs, branch offices are allowed to engage in direct business activities.  However, their scope of business is limited to that of the parent company.

Technical and Scientific Offices (TSOs) – TSOs are easily set up in Saudi Arabia and are usually established when a foreign company enters into long-term distribution or agency arrangements with local companies.  However, their scope of allowed commercial activity is limited to providing technical support and assistance to local distributors, agents, and consumers.  TSOs are prohibited from engaging in any direct business activities.

Other Commercial Arrangements – Distribution arrangements may be done through a joint venture with a Saudi partner or by appointing a local distributor or agent on your behalf.  Other options, such as franchising or a direct international sale, may also be available, depending on the type of service or product the foreign company offers.

Demystifying the Saudi Arabian Market: Opportunities and Challenges (Part 1)

By Wassem M. Amin

doing-business-in-saudi-arabia_mainThe Kingdom of Saudi Arabia unveiled a record budget for the 2013 fiscal year.  According to Fitch Ratings,  overall spending has been increased by nearly 20% over the past year.  In fact, spending in every sector will increase between 20-30%.  For example, the budgeted capital spending is 28% higher in FY13, while spending on the Education and Healthcare sectors will increase by nearly 36%.  Saudi Arabia’s increased spending is part of the its policy to create economic diversification and reform, in turn decreasing their dependence on oil revenue and creating new jobs for the local population.

In tandem with aggressive economic growth and spending, the government has been seeking to boost local and private foreign investors in the Kingdom.  Over the past few years, it has overhauled previously restrictive foreign direct investment laws to allow businesses to be wholly-owned by foreigners.  At the same time, it has significantly increased the availability of resources to foreign investors through its investment arm, the Saudi Arabian General Investment Authority (SAGIA).  In addition, despite the political unrest in the Middle East and worldwide global recession, the Kingdom has remained relatively stable and, thus far, unaffected.

The Kingdom’s expansionary policy has created significant opportunities for foreign investors.  However, although many multi-national corporations have penetrated the market, individual investors and small to medium enterprises (SMEs) still find it difficult to do so.  This is due to a combination of factors.  First, individual investors and SMEs often lack the access to global consulting firms that assist many larger businesses.  Second, the Kingdom, unlike its neighbor the United Arab Emirates, has not engaged in aggressive advertising to advocate foreign investment.  Third, although the government has implemented significant reform, its complex legal system, based on Shari’ah law, is confusing to outsiders.

Finally, and perhaps most critically, the Saudi culture and society remains extremely conservative.  Those unfamiliar with cultural norms and customs are often shocked upon their arrival in the Kingdom.  On a few cross-border transactions that I have consulted on, that lack of awareness has typically been the most likely precipitator of frustration between either party.

Saudi Arabia is perhaps one of the most attractive foreign investment economies in the world.  Investment opportunities exist in virtually every sector.  But, as with any investment, it is necessary to be fully informed.  A thorough knowledge, either through professional consultation or self-education, of the risks, laws, traditions and customs is a critical prerequisite.

Over the next couple of weeks, I will be writing a series of blog posts that address the most important differences and similarities of doing business in Saudi Arabia.  I will focus on different investment vehicles, setting-up a business, regulatory laws (including IP protection), locating resources, and customs and traditions.

If you have any individual questions, feel free to contact me.

Immigration: New USCIS Rule Allows Unlawful Presence Waivers for Illegal Aliens with US Relatives

Wassem M. Amin

A new Executive Order by the Obama Administration will make it easier for illegal aliens to obtain permanent residency if they have immediate relatives who are U.S. Citizens.  Scheduled to go into effect on March 4, 2013, illegal immigrants who can demonstrate that time apart from an American spouse, child, or parent would create “extreme hardship” can apply for a visa without leaving the United States.  If approved by USCIS, the applicant would be required to leave briefly in order to obtain the visa from their native country.

According to comment by the Department of Homeland Security, the rule seeks to reduce the time illegal immigrants are separated from their U.S. families while seeking legal status.  Although the rule is currently only applicable to those immigrants with U.S. citizens, according to an article in the L.A. Times, it most likely will be expanded to include relatives of permanent residents as well.

This rule will significantly assist many immigrants previously stuck in a “Catch-22.”  Previously, many illegal immigrants who may have sought a legal adjustment of status refused to do so out of fear that their hardship waiver would be denied, and they would be stuck out of the country.

Extreme Hardship, under the Immigration and Naturalization Act, is a statutory requirement that the applicant must meet to qualify for the waiver.  However, it is not a defined term and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.  When USCIS assesses whether an applicant has established extreme hardship, USCIS looks at the totality of the applicant’s circumstances and any supporting evidence to determine whether the qualifying relative will experience extreme hardship.

Beginning on March 4, 2012, Form I-601A will be available to those seeking to apply for a waiver under this new rule.  The final proposed rule and comments can be read here.

Eligibility Requirements:

  1. Applicant is a beneficiary of an approved I-130 Petition for Alien Relative or I-360 (Special Immigrant) petition which classifies them as an immediate relative.
  2. Alien is solely inadmissible because of unlawful presence for more than 180 days.
  3. Physically present in the U.S.
  4. Alien establishes that U.S. citizen spouse or parent would suffer extreme hardship if denied admission as a permanent resident.
  5. Alien is 17 years or older at time of application filing.

 

Disclaimer: This article is for informational purposes only and it is not intended as legal advice.  Their are many other factors that may impact an applicant’s eligibility.  Consultation with a knowledgeable Immigration Attorney is important.  For more information, please contact Wassem M. Amin.