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.