Working with Prosecutor on Sympathetic Case Makes All the Difference.

The family of  a client called me on the phone one night to see if I could help the client who was in jail and awaiting deportation.  They said the client was 19-years old and a legal permanent resident who had lived in the U.S. since his infancy.  It seems when he was 18-years old he started dating a young lady who told him she was 16.  At some point, they had intimate relations but the relationship eventually dissolved.  Shortly thereafter, the young lady reported to police that she was only 14-years old.  The police arrested my client for Unlawful Sexual Contact with a Minor.  Now, in Utah, this was a class B misdemeanor -- a very minor crime -- based on the age difference between the two kids.  However, immigration law takes a much dimmer view of the charge and my client was taken by ICE and placed into immigration proceedings.  Once there, the immigration judge informed him that his conviction constituted an "aggravated felony" for purposes of immigration law, which disqualified him from any sort of relief.  He was ordered deported immediately.

His family hired another attorney who valiantly filed, and fought, a fruitless asylum case in an attempt to keep the boy here.  She also attempted to vacate the conviction but her Post Conviction Relief Petition was ultimately rejected by the trial court.  The immigration case was on appeal to the BIA and the criminal case was on appeal to the Utah Court of Appeals when the family asked me to take over the case.

I immediately realized that we needed extra time to get this worked out, so I sent an extension request to the BIA, which was granted.  I then called the prosecutor in the original case and I explained the boy's situation.  I stated that it seemed patently unfair for the boy to lose his life-long home based on a misdemeanor charge where the young lady admitted to the police that she had lied to him about her age.  The prosecutor ultimately agreed that it was excessive and was willing to help, however he would not stipulate to simply vacating the conviction.  However, with some research we determined that there was another charge that the client could plead guilty to but that would not have the adverse immigration consequences.  He agreed to allow my client to withdraw his guilty plea to the previous charge and replace it with a plea to a separate, but equally serious charge.

However, time was still an issue as the this was June and the criminal court would not hear our petitioner until August.  So, when the deadline for filing the immigration appeal fell, I wrote and extensive brief detailing why the immigration judge's legal conclusions were ultimately wrong.  Because my client was in jail, there was no telling how quickly the appeals court would issue its decision.

Nevertheless, in August, after extensive negotiations with the criminal court, the judge granted the motion and my client was able to withdraw his guilty plea.  We immediately filed a Motion to Terminate, which the government did not oppose.  My client is not out of jail, free to live his life.  He was recently married and doing very well in the United States.