Wednesday, October 19, 2011

Saving a Legal Resident By Avoiding Court

This client was a legal permanent resident who had lived in the U.S. for many, many years.  A couple of year ago he was charged with assault and a judge issued a restraining order against him.  A couple of days later he was charged with violating the restraining order for simply showing up at the same location as the protected person.  ICE quickly arrested the man and placed him into deportation proceedings.  At his initial hearing, I denied the charge of removability and argued that the government had not established that his conviction for violating a protective order made him deportable because they had not shown that the criminal court made a finding that the actions of the client violated a portion of the protective order the dealt with credible threats of violence, repeated harassment or threats of any kind.  The IJ was sympathetic to my argument but based on some recent case law from the BIA he held that the government had met their burden.  We then applied for cancellation of removal and an individual hearing was set.  However, prior to that hearing I spoke with the client's attorney who represented him in the criminal case because the state of Utah was alleging a probation violation.  He asked me to accompany him to the hearing, which I did.  However, prior to the hearing I decided to draft a proposed order for the court to sign which specifically stated that the court had found that the protective order violation did not violate one of the proscribed sections of the immigration act.  I explained to the prosecutor that she stipulated to this I would not have to file any post-conviction petitions, etc.  She readily agreed and the Judge singed the order.  I immediately submitted the signed order to the immigration court along with a Motion to Terminate.  Within just a few days the government attorney indicated that he would not oppose the motion and the case was terminated and my client set free.

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