Protecting Immigration Relief in Criminal Court

Recently, we were approached by a family who had a family member in jail and threatened with deportation.  Ten years ago he was caught with a fake ID.  His public defender worked out a deal and had him plead guilty to a class A misdemeanor for possession of a forged document. However, prior to sentencing the man got scared and fled the state.  He returned in 2008 and in 2010 he was pulled over for speeding at which time the officer found the old arrest warrant.  He was arrested and jailed with no bail.

The man had lived in the United State for over 10 years and had several U.S. citizen children.  Also, his wife was in the process of become a Legal Permanent Resident.  In short, if we could sort out his criminal issues, the man might have some relief available in immigration court.

We immediately filed a Motion to Withdraw the Guilty Plea.  The basis for our motion was that the man had never been properly advised of the immigration consequences of his guilty plea.  Those consequences were severe.  Had he been sentenced to a year in jail (the most likely sentence), his conviction would have qualified as an "Aggravated Felony" (despite the fact that it was a misdemeanor in state court).  This list of ways in which this would have affected his immigration case is lengthy.  We felt confident, however, that the judge would allow us to withdraw his guilty plea and we would then take his case to trial.  However, at the hearing the judge denied the motion and we were forced to move to the sentencing portion of the hearing.

At sentencing, we invoked a Utah statute that allows a judge to lower a person's conviction by up to one degree based on several factors which the judge must take under consideration.  We noted to the judge that the events that led to man's arrest were serious and that he had not, at time, considered that he was committing a crime.  We also noted that he had lived for over a decade in the U.S. without a single additional criminal conviction of any kind.  We noted is wife and U.S. citizen children and based on this, we requested that the judge reduce the crime from a class A to a class B misdemeanor.  The judge, after some deliberation, granted that request.

The effects of that decision are profound.  Whereas before the man would have served his criminal sentence and them been immediately deported, he now qualified for "cancellation of removal" in the immigration court.  That means that he now has the opportunity to argue his case in front of an immigration judge.  He will also get a work permit and be allowed to work legally while his case is pending.  Should he win, he will be granted status as a Legal Permanent Resident.  However, none of it would be possible if the judge had not recognized the merits of the case and granted the motion to reduce the conviction.

Victory in Adjustment of Status Case

Several months ago a young mother came to my office, accompanied by her in-laws.  She was a bit frantic because her husband was being held by immigration authorities and was in danger of being deported.  Her story was familiar: her father-in-law was a Legal Permanent Resident who had submitted an I-130 relative petition for his son in 1992.  The visa was finally available so her husband had hired a "notario" to fill out the appropriate paperwork and submit it to the immigration service.  Everything seemed to be fine until the day of her husband's interview.  No sooner had he sat down than ICE agents slapped him into handcuffs and placed him into custody.

It turns out that her husband had three criminal convictions dating from 1995 to 2001, all three of which qualified as Crimes Involving Moral Turpitude and one of which qualified as an aggravated felony.  We informed her that her husband's crimes made him not only inadmissible to the United States, but also made him ineligible for bond.  She said the "notario" that helped them with their forms never even asked them about criminal history, and a review of the application showed that she had marked "no" in the box that asks about criminal history and arrests.

So, we set to work.  First, we assured this woman that her husband's case was not hopeless.  Second, we informed the immigration court that we would be renewing our client's application to adjust status and filing a 212(h) waiver of the grounds of inadmissibility.   On August 2, 2010, after being held in jail for approximately 6 months, we held the individual hearing where we presented all of our client's equities.  We carefully detailed his criminal history, letting him explain exactly what happened in each instance and express to the judge his acceptance of his responsibilities and also his remorse at his mistakes.   At the end of the hearing, the IJ found that our client merited a favorable exercise of discretion and granted our client's application.  He is now back home with his family and living as a Legal Permanent Resident of the United States.