Immigration Law & New Jersey's Well Intended Clusterf#ck

Tom the Producer (00:01.51)

If you're a lawyer who wants to podcast, check out LegalPodcasting.com. This podcast is not a source of legal advice. No two legal cases are the same. Contact an attorney if you require legal assistance. It's just now the pathways to becoming a lawful, having lawful status in the United States are extremely limited and they weren't that. But essentially to kind of get to where we are in 2025.

 

we have to kind of briefly speak about some things that happened in the 1980s and the 1990s. So in the 1980s, there was large consensus among political parties that there needed to be some more options immigration-wise because our system of bringing people in wasn't keeping up with the, essentially, most importantly, the economic needs of the United

 

of the United States. in the 1980s, when Tip O'Neill, Speaker of the House and President Ronald Reagan was in office, they came to an agreement on an amnesty bill that allowed people, largely farm workers who came without status or came with a visa that expired, they gave them a pathway to permanent residency. Essentially how it works is you either come

 

It's over the Reagan administration, right?

 

Yes, that was the 1986 Amnesty. And that allowed for a lot of people to become permanent residents and ultimately become United States citizens. But after about 10 years, there was, you know, pushback about that law in that there was not enough consequence for violations of the immigration law. So in 1996, then Speaker Newt Gingrich and President Bill Clinton

 

Derek DeCosmo Esq (01:52.426)

signed very restrictive immigration law that really, and that's still the law that we operate in under, but essentially it greatly limited how people can lawfully come to the United States, how people can obtain permanent status once they're here. And they created a lot of additional grounds for deportation. And another word I want to use is inadmissibility. So if somebody's here legally, you have to be deported.

 

You're deported under a ground of deportation. If you are trying to obtain a status, you can be barred and also deported if you are subject to a ground of inadmissibility. So they greatly expanded those definitions. They created the provisions for mandatory detention of certain individuals convicted of crimes. And that's, you know, what we work under. They did put a temporary amnesty in that program.

 

because they knew that this new bill was going to be very restrictive. So there was a type of amnesty in that bill, but that sunset it or that expired on April 2001. So that expires. And again, these things limit the number of individuals that can come in and out of the country. so, again, subsequent to that, we had the terrorist attacks of 9-11, and there were some additional provisions put in the law

 

mainly targeting asylum seekers because if you remember the first World Trade Center bombing, that was orchestrated by an imam who came to the United States who was trying to get political asylum. And while that case was pending out, he was a part of that first attempt to take down the towers. So after the towers went down,

 

second time, although most of the people involved were here on student visas, they were training at flight schools and things like that, they restricted the laws a little bit more. George W. Bush recognized the need for immigrant labor and because, for example, the main type of visa for immigrants, we can talk about the H-1B, that's the one I think that's more popularly discussed politically nowadays.

 

Derek DeCosmo Esq (04:05.826)

But the H2B is your temporary work visa. H2B is an H2A. And these are people that are coming to work in landscaping, work in construction, pick vegetables on a farm, et cetera. But it's capped number. There's only 60,000 of those visas for the whole United States. So it's never been indexed to the relative economic need of the United States. For example, obviously, the Your Show is based in New Jersey. New Jersey could probably use all 60,000 for the number of people they employ at the shore each summer.

 

because most of those folks are foreign born individuals. what George W. Bush wanted to do was to create a temporary work program and overhaul the immigration system. And that actually only failed by one vote, but you had a lot of bipartisan support for that bill. broke down in the end. Since that point, whether it's the Obama administration, first Trump administration, Biden administration, or now second Trump administration, the immigration issue has

 

largely become a political football, right? That both parties really want to use where prior to that, the decades prior to that, there was a lot of bipartisan support for certain things in the immigration law. So that kind of brings us up to today. don't want to, I'll let you ask.

 

so, I mean, essentially then the law is largely the same since 9 11. You know, like the, the, the laws kind of remain the same since then.

 

Yeah, and more so five years before that, 1996 bill was the real big change. you know, it was a flawed bill, which is why you continue to have, you know, depending on your perspective, problems, right? Now, another problem, though, that you have, which I think kind of has led us to what we're seeing today, which is, you know, a strong push towards immigration enforcement is that for the majority of my

 

Derek DeCosmo Esq (06:14.99)

career, my 20 year career, you maybe had about 400,000 people cross the border each year without status. You may maybe had around 300,000 who would come on, say a tourist visa and not leave. So roughly a number between 700,000 and a million. But each year, a million people would obtain permanent status. So the number, the overall number of undocumented people in the United States, that number

 

hovered just right around that number they talk about a lot, which is like 11 million people. And that stayed true up until the Biden administration, unfortunately, where it seems like the number of people in a non-permanent type status, some literally brought by the...

 

Biden administration through some executive actions and then people coming over the southern and northern borders, at least 3 million people a year. So we had a static number of about 11 million undocumented people for decades. And probably the number as of today, I wouldn't be surprised because they didn't really release the numbers, but I'm not going to be surprised if it's between 22 and 25 million. And that's a difference, right? Because the country very easily, almost without people even noticing, could assimilate the number of people coming in.

 

more people getting legal. But where you start to see the pressure points of this is in places like school districts, right? That all of a sudden overnight, they need 20 more bilingual staff to deal with students and their parents. mean, I am an immigration attorney. I've worked in this field for decades. I am very much pro-immigrant. think that there is the net pauses of immigration far outweigh any of the struggles or the setbacks.

 

But the things that people are frustrated about that kind of really, the election came down to this issue. mean, people can talk about what they like or dislike about President Trump or what they didn't like or liked about, liked about Kamala Harris. But the turning point issue was immigration and the consensus of the majority of Americans that they wanted to see some action on it because the pressure points that they're seeing were, you know, were difficult, you know, whether it was school districts, things with healthcare. The other problem is, that

 

Derek DeCosmo Esq (08:29.696)

until the Biden administration, my clients, they never got rental assistance or, or they didn't exist. It didn't exist. Which is why I could always say, look, my clients are here working, doing the jobs that need to get done, building families, starting businesses, very much care about security as well, you know, within their communities and their schools, et cetera. And they're not getting anything for it. And they're paying taxes. But

 

You know, we saw what we saw with Hotel Roosevelt in New York, where, you know, the city of New York is funding housing for people for very extended period of time and so on and so on. So it became, you know, the political issue it is. And then a perception, a perception that immigrants are committing a higher level of crimes, which data wise, that's not true. The amount of crimes committed.

 

by the immigrant population is lesser than the Native American born population. But this perception of it then of this crime issue led to two weeks ago, the passage of the Lake and Riley Act. And the Lake and Riley Act is essentially expands upon the 1996 law that I mentioned that it categorizes more people as being, as the government being required to detain them and detain them mandatorily.

 

without the option to get bail.

 

So let's come back to that one. just to recap then, you're saying that back before the 1950s, when the modern sort of framework of immigration was passed, that there was basically get on the boat, sail America, and if you clear like the medical screening, you're in, right? So did you have to bring anything with you like when you came? Like, did you have to have a certain amount of money? Did you have to have identification? Like, what was...

 

Louis Casadia Esq (10:24.354)

Was there any sort of like minimum requirement?

 

No, no, no, there really wasn't.

 

And you became then like a permanent resident and then you got, you worked towards citizenship or how did that?

 

Yeah, I mean, it was there was an inner. I don't know exactly off the top of my head, but there there was.

 

Didn't practice more than 1940?

 

Derek DeCosmo Esq (10:49.484)

Yeah, there was some type of a period before you became a citizen or could be sworn in as a citizen. Currently now it's you have to have be a permanent resident or what the colloquial thing is to say a green card holder. You have to be in that status for five years before you can apply for citizenship.

 

So now, know, present day now, does it differ? Does the process differ in how to come here legally, like based on what country you're from?

 

That's a great question. are, there isn't anything that favors necessarily one country over another. mean, in practical terms, there are, but in terms of the written law, there isn't a faster pathway except for when, you know, individual presidents use their executive authority to, to carve up some exceptions.

 

the Biden administration greatly expanded two things. One is temporary protected status. So if you're from a country where there's a natural disaster, a civil war, et cetera, the president through the head of Homeland Security can designate. So for example, earthquake in Haiti, right? The president can designate a period of, if you were already in the United States, we're gonna give you this temporary protected status.

 

for a period of 18 months until things might get better in your country and you can return. However, from the original designations, and some of them go back to the 1990s, they just kept getting extended, extended, extended. President Trump in his first term tried to eliminate them. were legal battles. so not only did the Biden administration bring them back, he added. He added designations. He also created a parole program specific to four countries, which were Cuba,

 

Derek DeCosmo Esq (12:43.702)

Haiti, Venezuela, and Nicaragua. this, me, I'm going to explain, and it's really the direct causal relationship, I think, to the kind of national backlash that led to really spurred on President Trump's election for the second term. So essentially, the temporary protected status, you know, there's some controversy about it, but not much because those people were already here. The Biden parole program for the four countries I mentioned was literally

 

What was

 

Derek DeCosmo Esq (13:13.528)

Hey, have somebody in the United States fill out a piece of paper, send it to us, and we'll basically give you a visa, which is a parole, but parole and visa are very similar, and also a work card, which I have clients here who have not committed any crime, who are here 20 plus years working, paying taxes. They don't have a legal entry to the United States. They don't have a work card.

 

And so what happens when, and I'll say this and I think I'd have colleagues that would challenge me on it, but there was certainly among the people that got these countries that got designated this special parole, more of a sense of entitlement when they, hey, I'm here now. Well, where's my rental assistance? Where's my cell phone? Where's my this, this and this? Because they had no stake in the United States. It's not like,

 

It's my wife filling out this little piece of paper to send to the government so that I can be paroled in.

 

Which was it again? heard Cuba or the other.

 

Cuba, Venezuela, Nicaragua, and Haiti. And then to what President Trump campaigned on. Yeah, Venezuela, there's wonderful Venezuelans, but you also did get a lot of their criminals because it was a way for their president to get rid of people. And so this parole program, which Trump has eliminated, but there is still probably about a million people that were able to come in on it, and now they're here.

 

Derek DeCosmo Esq (14:44.365)

So.

 

What was the logic behind it? Like, in favor of it anyway?

 

I think that I've pondered that myself because because the thing of it is is clearly people on the pro-immigration side, the activist side had to be advocating lobbying the administration for this. To me, Haitians that were here already were still under this temporary protected status. And, you know, and so to say, well, now we're going to bring in

 

more people just because. What I think the thought process of the Biden administration was that there was a high number of Nicaraguans, Haitians, and Venezuelans and Cubans showing up on the southern border. And that was a bad optic because the numbers, the flow of the southern border was, is a problem to try to take stress off of that border.

 

Derek DeCosmo Esq (15:46.773)

Yeah, we're going to roll out the red carpet and fly in. And again, that has led to some problems for sure. For sure. But that's where we are. now President Trump has ended those programs. But as I said, you have at least a million people here from those programs, plus this many millions that have come across the border. So, you know, we'll see what's going to happen. You know, I know what is happening currently.

 

But the other problem too, which was unfortunate of President Biden creating those programs was that if let's say I married somebody from anywhere in the world, right, whether it's I married somebody from Brazil or Britain, wherever, you know, instead of it taking a couple months for my wife to come as a permanent resident,

 

I know all about this one there, my brother waited a year and a half to...

 

Well, and a lot of people are waiting close to four years because they didn't hire any more people to do these parole applications. They probably received about 2 million of them processed almost a million. So they took it officers that were working on the normal stuff that immigration is the what's called US citizenship and immigration service. What they're supposed to be working on had to stop working on it to work on things for this program. So, you know, it led to a lot of.

 

frustration and quite frankly resentment among people that are trying to engage in the process.

 

Louis Casadia Esq (17:11.33)

And those are people essentially that regular, a lot of them US citizens applying to have their wives come over, family members come over, parents come over.

 

Pretty much all of them US citizens. I'm not even talking about employment stuff. I'm talking about US citizens trying to bring their husband, wife, and kids. Yeah.

 

Were they, were they giving more or the, were the, well, the cases you just spoke about, the parole cases, were they giving them more, like were they getting processed quicker than the other ones or were they in the same queue?

 

So no, definitely separate Q because they're separate applications and kind of applications go by Q. But if you know, when they started these programs, I'm like, hmm, at that time, USCIS, US Citizenship and Immigration Service, hadn't completed restaffing that they lost from COVID because what happened during COVID was that a lot of immigration service officers, if they were retirement eligible, they just took the retirement.

 

So the Biden administration started with about, in need of about 25,000 immigration agents as replacements to the existing. So they certainly did work on that, but at the same time, you create new programs where there's not new people to deal with them. You're taking people off of existing family-based immigration cases and other type cases to process these applications, which then backlogged everything even more, backlogged that we're still dealing.

 

Louis Casadia Esq (18:40.142)

Are you seeing, like, just, I guess, in a couple months of the change in administration, are they addressing these shortages? I mean, obviously, the end of those programs, I imagine that'll have some impact, but are they doing anything to address the existing backlog, like, hiring for people?

 

Well, I mean, that remains to be seen, right? I think that, you know, the one, the good thing about immigration is that it is funded by the application fees. So this isn't now things like border security, things like that. That's obviously federal funding. So essentially because they have paying customers, right? They're always, they are trying, they're always trying to be staffed appropriately. And because they are not

 

going to Congress, say I need X amount of dollars because our filing fees funded, they have that flexibility. I don't know what priority level processing applications in a timely fashion is going to be for this administration. I think that is something to be seen. I think that it's better for everyone for these things to be done quickly and efficiently. So I'm hoping because of that, maybe we'll see things get more reasonable because it's like,

 

You know, I mean, I'm you know, do Zooms with couples and it's like, OK, you know, we're ready to be together forever. I finished my master's degree and, know, in Great Britain and my husband here. yeah. OK. Well, we're looking at about four years. You know, that's that's not reasonable for people trying to start their lives or be reunited with immediate family. I'm not even talking about me trying to bring my sister or my brother. I'm talking immediate. I'm talking lives and kids.

 

Parents, kids, yeah.

 

Derek DeCosmo Esq (20:25.486)

So, so, you know, we'll see what's going to happen with that.

 

Now let's, let's, let's switch gears a little bit. So we're in 2025, you know, walk me through the different processes in which somebody who is living abroad says, you know what, I want to immigrate to United States. Like what are their options and like, how exactly does the process work? Yeah.

 

So that's great question because pretty much every one of your questions has an answer because there's problems that lead to a problem that we have or are perceived problems that we have with our system. So if I'm outside of the United States, you know, if I have an immediate family member, like such as a spouse, they can petition. We have student visas. They're not permanent.

 

Right? Right.

 

Just to pause you one second those applications when you're talking about a spouse like So long as there's no fraud in the relationship aspect. I mean, that's pretty much a guaranteed thing to get Eventually get brought over here. Is that fair? Right

 

Derek DeCosmo Esq (21:29.046)

There's no fraud and also criminal history. But, but yeah, no, mean, essentially, if it's, if it's a legitimate relationship, whether it's with the spouse or with the child, et cetera, that's, that's your primary way. There are, there are visas, there are student visas, there are work visas, but, but the problem is, that, you know, again, we don't have our work visas indexed to economic need, never have, they're just arbitrary numbers. And so,

 

A lot of times we have a lot more need than we have visas available. So that's not always an option or a good option. And then largely what you have is, you know, folks who just want to be here, right? So you get large numbers of people claiming asylum or trying to come to the United States and claim asylum who really don't qualify for asylum as that's written in

 

And to, to highlight that a little bit more and understand a little bit more, like when someone just wants to come here to live here, right? Like there's no vehicle for that. Like they have to get a V like they're ha they have to like fit into one of the categories to come here. And most of those categories are the family here. Do you have some sort of like expertise? You're going to come work here that we, you know, we can't get that anywhere else.

 

Right? And then, like, other than Asylum, what other boxes are there?

 

Those are really the three main buckets. They have limited stuff for like investors, but I still kind of group that under the whole work. Work one way or another. I don't do employment work now, but I used to, and one of our clients was Rowan University. So we'd be bringing in these very talented professors or a lot of IT companies.

 

Derek DeCosmo Esq (23:24.782)

I own a, I'm not going to say the name, but I own a big farm and I need 35 people a year. And they would have to try to, the unskilled jobs, would have to try to find by law, and it's a monitored program, they'd have to try to find US born workers to fill those jobs first. But it was amazing when I did that kind of work. put the ads out, paper everywhere, you would get nobody to apply.

 

you know, pick vegetables, you just wouldn't get anybody. But those are the main buckets. So a lot of people, if they don't have that immediate family member and they lack the professional expertise to be sponsored, and again, the business visas are capped anyway, there's not enough of them. So people just try to flood in and take their shot. And if they get apprehended, a lot of them will try to make some type of asylum claim. And that's where we are now. I, which is why I made it a point to reference

 

George W. Bush's guest worker program that he proposed and came close to getting through, which was going to be like a three-year work visa, potentially renewable, because most people want to just come here, work and go home. Not every one of them is looking to totally build their life here. But we don't have, and we never have since they really started the statutory scheme, we don't have immigration laws that match

 

what we need in terms of security, economic need, familial need, because families need to be together. We just don't. And so what happens is, you're either trying to force a square peg into a round hole to try to fit yourself into some category that maybe you do or don't qualify for, or you're just rolling the dice. Let me get there. Let me work in the United States. And until...

 

It catches up to me, you know, that's what happens.

 

Louis Casadia Esq (25:22.734)

And, so let's talk more, I guess, about the asylum process, because that, think that that one is pretty much the biggest thing that comes up in any time anyone's talking about illegal immigration. mean, that is, or would you agree, right? That that is, that's the one that is obviously coming up almost every single time someone walks over that border, doesn't have a visa to come here. That's their only choice, right? Like other than to just say, all right, you got me, I'm going to go home now.

 

Yeah, sure. Well, look, no, it's perfect, right? Because I do, you know, many consultations a day and people will be like, well, OK, I came in six months ago. I did get stopped. So they're telling me I have to see a judge in the future. What are my options? I'm like, you don't have any. You don't qualify for it. Well, what do you mean? That's like you don't qualify for anything. You you should have known that when you kind of took your shot to come up to the United States. You know, now, to top it off, you entered illegally, which is a problem.

 

But yeah, you know, so they do. But let me just give you some examples. You know, Haiti's never been stable, period. Right. And I get it that it's really unstable now and you have gangs running things that, know, that's not really that's not really the definition of political asylum. know, Nicaragua, the same kind of thing, the economic crisis, Ecuador and a lot of things are just

 

it clean asylum

 

Derek DeCosmo Esq (26:48.472)

countries that are just not stable. And yes, you might be suffering some violence there, but unfortunately, for better or worse, our laws, which are international laws, because they go back to the Geneva Convention, is that, you know, to be truly qualified for political asylum, the harm that you're suffering has to have been politically motivated, you know, politically, ethnically, but this whole like,

 

My country can't get its act together and it's not safe and where we have no economic opportunity, which is the real reason that most people comes for economic opportunity, even if they suffered some type of a violent episode. just, just kind of being from a dangerous place, you know, is an asylum. And quite frankly, you know, I say to people at home, well, there, there are sections of Philadelphia. I'm not going to walk around it. You know what I mean? Because the better, obviously it's worse in certain countries, but

 

You know, there's crime everywhere and violence everywhere, unfortunately, but when people, because they can't possibly qualify for anything else, they take their shot with submitting an asylum application.

 

And just so everyone's aware, what is the actual black letter legal standard for being grand in silence? What do have to prove?

 

So you have to the well-founded fear of persecution based on political opinion, your race, your national origin, your membership in a particular social group, or your religion. So the membership in a particular social group is kind of where all the litigation lies, right? Because we have Venezuelans that it's well documented that they were actively protesting that government and that government was actively looking for them. That's your true

 

Derek DeCosmo Esq (28:38.306)

political asylum case, right? But most people, it's, well, they try to get it under social group, which social group could be, you know, I am an LGBTQ person living in this country that oppresses, you know, my life, right? Because I'm a member of the LGBTQ community. Some try to, as attorneys, we try to get creative with what might legally qualify as a social group. But essentially what the legal definition is,

 

it's supposed to be an immutable characteristic of someone. So it's a characteristic in you that can't be changed, right? And you're suffering violence because of it and the state is either the sponsor of that violence or turning a blind eye to it, you know, not enforcing any law to protect you, then you could potentially qualify for political asylum.

 

How do you, like, if you're going in there and that, well, let me back up a sec. You, you file for asylum, right? What's the like judicial process then of litigating? Like, how does that work?

 

Yeah. So, so this, this is where things kind of get even messier, right? Because if you're stopped on the border, there's a law that you can be summarily deported, right? You can be given not seeing a judge. It's called expedited removal. A border patrol agent can deport you unless you express some type of credible fear of being returned to your country. And so if you express that threat and you pass what they call credible fear interview, which

 

The standards low on that. Your case is deferred to the immigration court. And at some point you'll be scheduled in front of an immigration judge. But what has happened, and this has continually happened since Obama and then really, really happened a lot under Biden is that people come, they're detained. Okay, you're going to have court. What city are you going to? I'm going to go to Camden, New Jersey. Okay. You're going to go to the Newark immigration court. Here's

 

Derek DeCosmo Esq (30:39.502)

Here's when and where you got to go. The problem is, that, and this goes back to 2013, like I said on our Obama is that the intention is always let the judges adjudicate these cases first. Because if, if these people go into the normal course of the court's flow, could be, it could, several years before a judge actually gets to them. And then what's happening during those years, right? Then people are building equities, right? They're having kids, et cetera. so, you know,

 

But each administration has tried and failed to deal with the newest, most recent arrivals first. I think one of the things that Trump administration is really gonna try to focus on is dealing with people first before they've really set up their lives in the United States. Immigration court was always slow, but for most of my career, I would generally be telling clients like, okay, we're gonna go through this court process and we should be done in like two or three years.

 

2013 happened when we started really seeing numbers increase under the Obama administration that you know started looking like okay It's maybe it's gonna be like a three to five year process, but now it's like seven to ten years It's it's it's ridiculous. I I just finished a deportation case for somebody a couple weeks ago that started, you know, 18 years ago

 

What makes it take that long? you, like, like what's, you just get like an email from the court? Like, Hey, we don't have enough time to deal with it. Six months out.

 

Well, yeah, no, mean, so what happens is that one is that you might have had a million cases in the immigration courts throughout the country for most of my career going on at one time. I think by the end of this fiscal year, that number is going to look something more like seven or eight million. Right. So there's not enough courts, there's not enough judges, there's not enough government prosecutors to do these things. And when cases get kicked down the road,

 

Derek DeCosmo Esq (32:35.61)

Then the judge, well, that judge is now retired. So now you're good. We have a new judge. You got to go back to the beginning of their calendar and start through the process again. So, I mean, that's, that's generally what happens, but they want the judges doing like, you know, at least, you know, at least two or three full deportation hearings a day, but things happen, right? Courts get delayed. know, judge calls out sick. There's just a million things that happen.

 

more cases coming in than going out because only doing right. Even in the best day, they're only doing right. A couple of four or five a day for that judge. then there's probably, I don't know what the numbers are now, but certainly over the last three years, they were coming in faster than they could even handle.

 

No, absolutely. Like I said, I think the court's national docket is going to be somewhere like eight million, seven, eight million by the end of the fiscal year. And then the problem now with the Trump administration, one thing that the Biden and Obama administrations allowed was they allowed for prosecutorial discretion. Prosecutors could, we could work cases out like, okay, well, you don't quite qualify for this, but you're not breaking the law as long as you're not committing crimes, et cetera. We're going to close out your case either temporarily or permanently.

 

Stay out of trouble and we won't see you again. So that at least allowed the judges, the government prosecutors and on our board, at least managed to dock it. But Trump won't allow, he didn't, the first administration is not in this administration. He's not letting, he's removed prosecutorial discretion. So you as a prosecutor, you know, can't make that call. Well, you know, the standard for this type of application from the judge is really, really high. Person doesn't quite meet it, but.

 

otherwise good. I'm going to close this case out." You're stripped of that. So that's going to make the docket both the volume of the docket super i and then that is going to limit how we deal with the docket. So I don't see how this gets any better.

 

Louis Casadia Esq (34:29.558)

And what's the- so, like, in those cases where you would work it out with prosecutor, what would the status of that- would they be granted asylum then? Is that what would happen? They would agree to- No.

 

No, no, they wouldn't agree to the grant if they'd be if they know if the government's attorneys don't feel like you can meet your burden. They're not, you know, if they but, know, if you had other equities, you know, you're paying taxes, you're not breaking the law, you have to prove that you have to document these things. You know, they could they could. Administratively close your case, which means it remains some level active, so that means the person can essentially continue to receive a work authorization card, which is not.

 

true status, but it gives them legitimate documentation because with that work card you have a social security, etc. In other cases, if they just terminate the deportation process, you just revert to being an undocumented person and because you don't have anything pending with the court, you're no longer eligible for things like work cards, etc.

 

So the, like, we're going to talk about criminal law. We kind of like saying, all right, we're going to dismiss your criminal charges without prejudice, meaning we could bring them back anytime we want. But you know, we probably won't. And that's essentially what they're doing. What they were doing in the ones you were able to work out is we're not going to deport you. We're not giving you asylum. Just be good. And we'll probably won't bring this back up again. But again, now they could, if the Trump administration wanted to, could they...

 

make a list of everyone that's gotten that type of deal and say, all right, we're actually come back and deport that now. Like they bring you

 

Derek DeCosmo Esq (36:01.794)

They could do it and they did do it the last time because Obama was the first one who would impress or at least, know, very much. Prosecutor discretion always existed in some form, right? You're prosecuting, you know that. but they really the Obama administration really pushed that as a way to manage dockets. So when Trump first came in, what he he tried to take the cases that had been. In the process, being administratively closed and essentially put them back on the calendar. So cases that have been administratively closed.

 

we could see going back on the calendar, although I'm going to tell you in a second why I think that that would not be smart. For cases that are actually terminated where the deportation case was officially dismissed by the judge, well, you would have to send ICE agents back out to serve them with new chart. It'd be like giving them a new indictment, right? You have to go out and kind of repaper the case and restart the case over. Could they do it? Potentially, yeah, because they have contact information for these folks. But if your stated target is

 

recent arrivals to the United States and national security threats and aliens with criminal issues.

 

You don't have unlimited resources.

 

You don't have unlimited resources and you only have four years and you're not going to get through that list in four years.

 

Louis Casadia Esq (37:13.688)

Right. Gotcha. So what happens then? How do they decide whether, where, how did they decide? And I think this comes in the current events too. Where do you reside pending asylum? Okay. Shit. Like how, who decides that? you sit in a facility? I mean, now I guess they're letting people sit in Mexico while they wait for asylum applications in the United States. Or are you free at your own free liberty? Like in the United States, like what, how does that work?

 

Yeah, so, right, so they're, they had remain in Mexico, which is coming back in some type of form, where if you're apprehended at the border and you pass credible fear, but they don't either have the resources to hold you in a jail cell and they don't want to do what got very popular in the news, call catch and release, right? We heard a lot about that during the election cycle. They don't want to do a catch and release. Then they could have you remain in your country. They can detain you.

 

Right? Everybody is eligible to be detained who gets stopped crossing the border. But, you know, if you are again, if you're not a national security threat, you're not a criminal threat, they will either or have we'll see what's going to happen in the coming months. They'll release you on your own reconnaissance, which would be, you know, provide us an address. You got to check in with the ICE office nearest to where you're saying you're going to live. You have to keep your address updated. You have to go to court. You have to check in with us.

 

And it could literally just be you're checking in or we're going to. Obviously, they can, like I said, they could detain somebody in jail. They could put an ankle bracelet on, which we're going to see more of that. But again, there's not unlimited resources for that, too, because that just creates its own other cottage industry. Right. Just go into the ankle bracelet business, you know, which are all which are all have guys that were on ice or part of those boards and, the whole D.C. thing. Right. It's the result revolving door. That's.

 

I from ICE and now I started my own ankle bracelet company and I got a good contract from the government.

 

Derek DeCosmo Esq (39:12.531)

happen.

 

Louis Casadia Esq (39:20.502)

Is it judge decides? You go in front of a judge and they decide or is it ice like given the distraction to make

 

It's more ICE really dictating. The judges really don't get involved in that. If ICE decides to say, we're going to let you go to New Jersey, but you can't leave New Jersey and you're going to wear this ankle bracelet. When I have a court hearing with that client, I can't say to the judge, judge, you take this person's a no-risk person? Can you take that bracelet off? The judge has no authority.

 

Okay. So the judge has no, I'll call it bail. The judge doesn't have any say over what the bail conditions are for that person. that's really good. They did. Okay.

 

You know, they do. Yeah, it's a little bit different. They can't take the bracelet off, but what the judge can do if you are detained, like in a facility, if you're not subject to mandatory detention, which certain people are, thinks you're mandatory detention, you can have that review by a judge and that's generally going to be based on a prior criminal conviction. But if you are detained by ICE, just say,

 

They can't take the brace.

 

Derek DeCosmo Esq (40:28.332)

you came without a visa, where you overstayed a visa and they arrest you at a car wash or something, you have no other disqualifiers, I can request a judge to set bail.

 

And you said mandatory detention. Tell me more about that.

 

So mandatory detention, again, its first iteration came in the 90s. And essentially, if you're convicted of an offense that would make you deportable or inadmissible to the United States, which could be, know, simple possession of a CDS, know, shoplifting, whatever, some depending on the grading, how serious it is, but they can statute that if convicted of this type of offense, then detention is mandatory. And so the statutory language,

 

says the attorney general shall, know, shall detain these individuals. which honestly, it was pretty broad in scope from the 90s, really. You know, I mean, I meet people all the time. A lot of what I do is this detained deportation work. It's like, well, can we get bail? No, the answer is can't get bail because of this is the conviction, possession of child porn, whatever it might be. A judge has no authority to release this person. The Lake and Riley Act expanded it.

 

beyond convictions to just being charged with crimes and then it expanded the types of crimes that could land you in mandatory detention.

 

Louis Casadia Esq (41:53.198)

And is that, that's that's crimes charged or convictions or crimes charged in the United States and also their home country or anywhere else, right?

 

Yeah, yeah, yes, yes, if they can access that information.

 

I was just gonna ask that like how easy is it to, I mean I'm sure certain countries it's probably not that difficult. Like for example, some of these countries in South America, like how common is it to see like, oh, here's a rap sheet from Venezuela, you know?

 

Yeah, no, I mean, it's in my 20 years of doing this, it's much more common with your places that are like connected to Interpol, who's then connected to, you know, the FBI and all here. But for some of these, you know, let's be honest, like third world countries, right? You know, it's, you're not always going to get that in from, but there are times where ICE does get it, whether or not they may or may not use it in the court deportation process, but they, you know, they

 

might get it, but it's like anything else, right? You either have to be convicted, warrants have to be issued in your country that are transmitted. You I don't know what like the global database for warrants is, but there's something like that.

 

Louis Casadia Esq (43:01.614)

So just understand that a little bit, understand the recent act that just passed. If you're charged with a crime, if you get picked up on, let's say you're in a car, you're in a car with four people. They find some drugs, there's a car stop for traffic offense. Somehow, someway, it ends up there's drugs found in the Senate council or somewhere where it's not clear who they belong to. Everyone in the car gets charged. Guy in the back seat will just call him Bob.

 

Bob's undocumented resident of the United States to appear illegally. What happens then? Does he just get automatically detained because of the new act? Walk me through that.

 

Sure. Your questions lead to layered answers, which is good. It's good questions, right? So if you are in a state that is non-sanctuaries, we'll have to talk about that because New Jersey and Philadelphia are. But if local police calls ICE, right? Or you get, let's say you get lodged in a jail and undocumented, so we're going to send a notification to ICE, see if they want to put a detainer on the person.

 

Yeah, ICE is going to come get you and you're going to be in their detention and you're going to go through the deportation process. And unfortunately, if you're charged with crimes that are covered under the Lake and Raleigh Act, I'm not even going to be able to ask the judge for to get Bob bail. Yeah. Which means that you stay detained if you have an application to live here lawfully, you know, you're you're going to get your day in court, but you're going to be detained for usually around three months until you have a final hearing with an immigration judge. So.

 

Now, I'm doing a continuing legal education soon. And one of my categories is, know, Trump versus Murphy. You know, in New Jersey and California, some of these places are trying to like, you know, quote, I'll use their language, bulwark certain things against federal authority. And immigration is oftentimes one of them where they want to still continue to go by directives. In New Jersey, what we had was the immigrant trust directive that former attorney general, Grewal Enforce wrote, I guess.

 

Derek DeCosmo Esq (45:07.618)

But it's really a Murphy administration thing, which said, you know, we're that we don't want the county jails, you know, honoring detainers from ICE. We don't want to notify ICE if we have an individual charged with a crime, which I have to tell you is interesting to me because, you know, I've been practicing long enough to know in the, you know, in the early middle 2000s, New Jersey passed a law requiring

 

on indictable offenses, state local authorities to notify ICE because there had been a guy who was charged, let out, undocumented, who killed, then went out and murdered three people in Newark, New Jersey. You're probably a little young for that case, but they then said, oh, mandatory. Now you have to communicate with ICE. And then the trust directive, you Yes, that,

 

the wall they passed.

 

Derek DeCosmo Esq (46:04.864)

No, that was an attorney general directive. But so then New Jersey went in a couple of years went the complete opposite way and to not honor these detainers, which are hold requests when ICE wants to pick up somebody.

 

experience with that. mean, when I was a prosecutor in Atlanta County, did not have a particular story I'll tell briefly. But even besides that, I don't, have to go back and redirect it. I remember though, like they were pretty consistently calling. The prosecutor's offices weren't getting involved, but the jails, they had somebody, they were calling up like, Hey, dude, we got someone here. got a detainer.

 

Not sure. I I'm not sure exactly the wording that the directive used, but it seemed like there were certain things where they're like, we're not crossing that line as far as.

 

The director was indictable. If a non-citizen was charged with an indictable offense, then ICE was supposed to be notified. And they were, your point, they were.

 

Yeah

 

Derek DeCosmo Esq (47:10.996)

ICE was going to the jails, getting those people and then putting them in the deportation process. But then we went from transition to, know, my colleagues were opposed to me because I was opposed to this. But, you know, there was such heavy political pressure for counties and the states and contracts with ICE in terms of detention centers, et cetera. And I said, you know, this is a nice feel good thing, but this only works if all 50 states are going to say we're not

 

Right.

 

Derek DeCosmo Esq (47:39.714)

going to rent space to ice to be able to detain because now what happens is I have a couple today. They're all over. He's lived his whole life in New Jersey and he's being charged with deportation now and I'm going to be defending him in New Mexico because they just took him to New Mexico. So you're separating that person from their family during their deportation process because they're not going be able to visit the person.

 

You're separating them from their evidence and trying to build their case to remain in United States because the government's initial burden to show somebody is deportable is small. Then the burden shifts on the person in deportation to show that they qualify for whatever type of relief they're pursuing. So, you know, so New Jersey started with, well, we were ending this Essex, Hudson County, they all had contracts with ICE to detain a non-citizen. Middlesex County had one for a long time, but they got rid of them.

 

And then they went another step further with the immigrant trust directive to basically firewall limit the communication between state and local law enforcement and the feds.

 

I had, I had a case when I was a prosecutor, a guy was charged with pretty, pretty significantly injuring his brother-in-law. was a stabbing guy, died. And the court had in the detention hearing actually released him, but he had a nice tanner. You know, as soon as he was released, came and picked him up, took him out to like Pennsylvania somewhere.

 

Good show.

 

Louis Casadia Esq (49:07.49)

They didn't have, they don't have anything in New Jersey. So he's out in Pennsylvania and you know, meanwhile, like someone threw it on my desk and said, Hey, like, can you see if you get this guy back into New Jersey? Because you know, it's a pretty serious crime. We really want to prosecute it. I'll like, okay, like I'll see what I can do. Well, I mean, long story short, you know, I had to reopen the detention. I had to get, actually got immigration documents. I had to get all these different documents from, from the ICE officer. And I had to show like the disguise like.

 

immigration history, which he had actually he had come into the country, he had been deported and he had come in again. And they had like, I don't remember if they use the old deportation or because once you have one rotation or you're basically like, you don't need another one, right?

 

Correct. What they do is a process called reinstatement. So they essentially just reinstate the prior order. But from the defense attorney side, I had to do the same thing where I got on the case after there was a release at the county level. I didn't want my client trying to present their immigration case with the specter of the criminal charge over there. I want the criminal cases resolved. So in that case, I moved to have my client.

 

Cause you're not resolved in a criminal case if you're out in Pennsylvania, right? So, I mean, it's just impossible. Obviously you can't do that. So ultimately I had to reopen. was there was a lot back and forth. They detained them. The judge changed her, there was a different judge actually that changed her mind, detained him. And he was, it was, it was crazy because it, it seemed as though we weren't going to succeed. Cause the guy was all the way in New Orleans. He was about to get on a plane to get back, sent back to, um, I want to

 

South American country. He was going to be sent back to Honduras and in the 11th hour, I somehow, can't remember how I did it. I got, cause the ice didn't want it. Ice wasn't going to bring him back unless there was some assurance that we were going to honor their detainer. So I had to get, like I got the jail to put in an email that they would honor the designer and then they flew him back. They flew him back from New Orleans. And then he got, he ended up getting detained.

 

Derek DeCosmo Esq (50:51.63)

100

 

Louis Casadia Esq (51:19.662)

But yeah, it's intersect there where you have even most of the time it's you don't see crimes like most time they get people get detained or crimes like that. Right. But like, even like the Meyer ones, it's almost like you can get charged with like three or four burglaries, right. Get released. And then you get the ICE detainer and you never see him person again. never, never get to prosecute these crimes ever essentially.

 

Right, which is why when I'm training criminal defense attorneys and I say like, look, you know, it goes against your ethos as a criminal defense attorney to not argue to get your client out of custody. But sometimes sometimes the best strategic decision is to remain in custody when I don't when when when when I know that if they get moved to ice, the immigration judge isn't going to let him out. You're not going to get him.

 

They have a pending charge, And then it's like, well, they can't even resolve it because it's in another state and they can't be in front of that. So, know, the court's a while late on a pending charge, and it's a catch-22 because you can't resolve it.

 

Right, which led to successful litigation, a case that came out about 10 days ago from the Western District of Pennsylvania, which found that if ISIS is detaining the individuals in Mochannon Valley and they have a New Jersey criminal case, that ISIS is supposed to make the defendant available for hearings via web portal. So that's a great case for me because we can try to get, because to your point, right,

 

The majority of these cases are low level. There are a lot that are bad, don't get me wrong, but a lot of them are, you know, at the state level, PTI eligible, probationary type offenses.

 

Louis Casadia Esq (53:02.776)

Things you could work out. It's a thing that like even a US citizen would get some low level, you know, fine or penalty or like you said, PTI for those watching PTI is a diversionary program for first time offenders called pre-trial intervention. And that ultimately if you're successful leads to a dismissal. So yeah, right. Like there's most of these cases are results or they can't be proven. And if you push a little bit, the state will...

 

like concede that and either dismiss or give you some sort of like misdemeanor of fine. Right. So, and I'm sure when you were in those cases, you're making sure that any resolution is not going to be permanent bar for them to immigrate. Let's, I mean, you a little bit more time. what, like, tell me a little bit about like, you know, the intersection of criminal and immigration law. Like what is the, like what, what different crimes like

 

bar you automatically versus like what do you try to resolve things to that gives at least some I guess some chance at discretionary decisions to in the future let the person in the country.

 

Right. mean, the so essentially it depends on a person's status, right? Is somebody has if they're undocumented or they've overstayed their visa, a lot more things can impact them. If they are already a permanent resident who's committed a crime, they have a little bit more protection. But essentially, if somebody is a permanent resident, we are looking to fashion a resolution to their criminal case that doesn't hit a criminal ground of deportation. If somebody is undocumented who

 

hopes to have status in the future, permanent status. We're trying to fashion a resolution that we don't hit a criminal ground of admissibility so that they can get their status. There is an enumerated list of aggravated felonies for immigration purposes. These are things like murder, rape, et cetera, very much specified. But then there's a category of crimes, which is just...

 

Derek DeCosmo Esq (55:00.654)

It's a very nebulous thing. It's called crimes involving moral turpitude. And one man's moral turpitude is not necessarily another man's moral turpitude. It's like what they call crimes of morality, right? So essentially what we're constantly doing is we're looking at established case law to know if a court in a controlling jurisdiction has said that X crime is a deportable or not. And in a case where there's nothing reported, you know, we're

 

doing our best to break down the statutes to see if it's something that would give them a fighting chance and a potential deportation hearing. So I'll give you a prime example of this is that if we look at, if you have a firearms offense, right, that is a federal ground of deportation. However, New Jersey has a second degree firearm and a third degree firearm. And New Jersey's definition,

 

of a firearm is far more expansive than the federal government's. The federal government's really is a, a Glock is a Glock, right? In New Jersey, a gun can be a BB gun. It can be an air compressed gun. could be a spring loader. You know, there's many more things. So if you had somebody on a gun case, right, I would be saying, Hey, Lou, can you, again, when it's possible, if we can plead this to the third degree over the secondary, not plead as a second sentence as a third, but we did the third degree, which

 

encompasses all other types of things that can fire a projectile that the feds won't consider a firearm, then I get to go in front of the immigration judge and say that the New Jersey third degree statute isn't a match to the federal statute. Therefore, my client isn't deportable for that. That is what I, a lot of what I do. Criminal defense attorneys ask me to do that for them and advise them on that. But you know,

 

A lot of my colleagues who were immigration lawyers, unfortunately, are extremely naive about, know, I'll get calls from people. Derek, you know, my clients charged with fentanyl possession with intent to distribute and they had a gun. Can you try to plead them to possession of marijuana under 30 grams? It's like, no, I can't. Not when they have, you know, a couple pounds of fentanyl on them, you know.

 

Louis Casadia Esq (57:09.262)

And no, no one's gonna agree to that.

 

You gotta work within the facts so that you can give a prosecutor something to hang their hat on. So, you know, on the gun cases, we try to do things like either get the third degree if we can, or we try to do some of the transport laws that are within that statute. Drugs, you know, we try to get marijuana when we can, but a lot of times...

 

also something.

 

Louis Casadia Esq (57:35.246)

They don't deport from marijuana

 

You can have a single marijuana conviction under 30 grams, which is tricky because New Jersey statute is 50 and under to take something from the DP. So we basically have to specify on record. We do this all the time. A client had certain, you when you're doing your, your colloquy with your client, did you have 29.5 grams of 29.3 is one ounce. Yeah. Cause you need to get to one ounce.

 

Yeah, you have to make a you have to buy

 

Derek DeCosmo Esq (58:06.68)

to plead it to the degree that the.

 

Yeah, yeah, hey Tom, it looks like we lost Derek there. There he is. Lost here for a second. You're talking about... Derek, can you hear me? Yeah, I think he dropped. I mean, we're pretty far. I mean, we got an hour and 10 about, so... I'll give it a 2, log back in.

 

Derek DeCosmo Esq (58:36.684)

I think I can hear you again.

 

Louis Casadia Esq (58:43.278)

Gosh, yeah, I can hear you now. We got a lot of time into this, so I don't know if there's anything else you want to touch upon. You're kind of closing out.

 

Derek DeCosmo Esq (59:04.046)

Yeah, so like I was saying is you know, if a prosecutor has a possession with intent to distribute case and they really want it to resolve as an indictable, but I need it to look like a simple possession of the statutory ranges one ounce to five pounds. So if you plead it to one ounce, you're and specify on the record during your plea colloquy under that that amount will say the amount of the gram.

 

And that's one way, obviously I can't, if you have a client who's charged with domestic violence, I can't make it look like a trespassing. We have to work within the facts. And I will say I'm appreciative of the criminal defense attorneys who take their obligation seriously, because you do have an obligation to either make sure that that client gets

 

accurate immigration advice, right, or that you provide it. And unfortunately, and that's been the law in New Jersey for 15 years now, and still some defense attorneys just want to throw their hands up and say, oh, well, you're not a citizen. I don't know what's going to happen. You know, best of luck. And defense attorneys have a greater obligation than that. And it is Supreme Court precedent that says it, you know.

 

If a deportation consequence is certain, you as the defense attorney have to be able to say it. And if you don't know that answer, you got to find it. Obviously, the best situation is for that client to hire somebody like me to answer that question and then try to fashion a resolution that what we call immigration safe. We're trying to give immigration safe, but you're not always going to get that, right? Because if you have something like child pornography, which is very, very common,

 

keep state v. Higginbotham to the side where they're the constitutionality of it. but you know, prosecutor, they do a data poll on somebody's phone and you got a thousand images, you know, we're not pleading you to something safe. It's just, you know, it's just, it is what it is.

 

Louis Casadia Esq (01:01:16.424)

Is unfortunately like the least of their concerns. Yeah. I guess let's end with, with, with this class. Actually, actually I have one very minor question and then I will end with one other thing. if you plea in the, into PTI is, is, is it, is it trick is the deportation? Let's say you plea in a PTI on a drug offense, right?

 

Absolutely.

 

Louis Casadia Esq (01:01:41.556)

Is it automatically triggered or is it one of those things where if anybody were ever pool that transcript and realize you admitted to something that they could file on you, but from a practical like data input standpoint, it's not going to flag anything because it looks like a dismissal.

 

So you're you're you are correct. But I mean, as a matter of law, pleading in the PTI is a conviction for immigration purposes, period. But yes, to get to that answer, you'd have to pull transcripts. So that becomes a question of whether or not immigration wants to be bothered to do it. But they're. Well, they have lawyers, right? So they know what they know that there are.

 

The third and fourth degree offenses your PTI without a plea. They also know that second degree requires prosecutor permission and also an admission. So what would be likely to happen is when that person say is traveling after you've done their criminal case and they get dinged coming back in because they have a conviction and they go into a process called secondary inspection. Well, the border patrol agents can say, well, I know that this is saying PTI, but

 

We don't know if you admit it. We need everything now. Right. So I will tell you as a practical matter, my clients who had no choice but to play in to PTI, they have not been subsequently. Or brought into deportation proceedings. But to me, that's a dicey game. And I would want to be clear with the client and say, look, this may or may not get noticed. You know, if you try.

 

certain things you do are going to trigger it. apply for citizenship in future, you travel, but it is technically a conviction for immigration purposes.

 

Louis Casadia Esq (01:03:30.166)

Yeah. So let's end on this. If Derek Cosmo were overlord of the United States and had free reign to both pass and enforce new immigration law, what would you, in your experience, want to see change or, you know, removed, added to our existing framework?

 

Yeah, I mean, I've alluded to it. I think that one, one you have to you have to control the the the number of people coming in for the border, right? Because that has to be we're we're a nation. There's security issues that has to be resolved. Right. But beyond that, what I would like to see is for people that are here and they're doing the right things, trying to do the right things.

 

that there should be some pathway to becoming permanent residents. And once you've kind of solved your flow problem and your people here, then I would move, I would, you know, not necessarily expand the grounds for the family side. You know, I might try to speed up some of the timelines for them, but I would have, you know, labor markets dictate the number of industry,

 

per industry, number of visas that are available each year. Those would be the things that I would do. There's also some silly things in the law that, like for example, let's say I lived here for 10 years and then I get a call that my father's dying in Mexico and I want to see him one last time. So I go and see him and then I come back to the United States. Fast forward a couple of years, I got a kid that's in the Marines and we have a special

 

process in United States if you have a child who's serving to be able to do your residency. Well, I can't get that person their green card because if you come in the United States more than one time undocumented, you're essentially permanently barred from getting a green card. And that stuff is unnecessarily punishing and it prevents tens of thousands of people each year from getting their legal status. So I would be removing some of those things.

 

Derek DeCosmo Esq (01:05:47.208)

I'm also generally, I generally don't know, think for immigration, we should necessarily treat criminal issues more harsh than say you as a prosecutor would have treated it. So for these like low level offenses that aren't going to get much more than a slap of a risk because as society, we don't think that they deserve much more than that. You you shop with something for 20 bucks. You know, I'd like to see less of those things.

 

be so devastating from a deportation perspective. So those are some of the changes that I would like to see happen. I do think, and people on my legal side, the immigration advocates, I don't think that they will, I think they'll turn their back on President Trump, but I do think Trump is transactional. So I do feel like if he's hitting his deportation targets and the border is secure,

 

I think just because he's transactional in nature that he probably would work out a deal for people here and maybe do something that, you know, we have an illegal immigration problem because our legal process for immigrating is so limited. This whole idea that, I did it the right way or I can go get in this line. That's a fallacy. And I have to call that out when I hear it. That's just a fallacy. There's not a line for everybody to get into. OK, the lines.

 

for things or the categories are not expansive enough to meet really to meet the needs of the country. So it really breeds illegal immigration. And then you have, you know, situations where, you know, quite frankly, and I'm pro-immigrant, but the Biden administration so severely mismanaged immigration at every level. Now it appears to people to be a crisis. I don't think it is a crisis in reality, but that perception is so prevalent.

 

right now. So you can't, you almost can't come to a political solution because the perception is just that things are out of control and to a large extent, you know, they are the we have not seen these kinds of numbers in the history of the country.

 

Louis Casadia Esq (01:08:02.038)

Yeah, yeah. Well, Derek, thanks for coming on. Always appreciate your viewpoint. I'll be calling you as I have been, I'm sure, on any future immigration issues. And yeah, we can stop recording now.

 

I appreciate you having me.

 

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