Long Fight Ends in Victory

Client came to me with a serious criminal charge of aggravated assault.   Client was a long-time Legal Resident with a wife and several children.  After extensive negotiations with the prosecutor, we arranged for my client to plead to two counts of Attempted Aggravated Assault, a class A misdemeanor.  The government also agreed to stipulated to a sentence of 364 days in order to avoid the "aggravated felony" designation for immigration purposes.  Nevertheless, due to the perceived seriousness of the crime, the judge sentenced my client to 90-days in jail.

After his sentence was up, ICE arrested my client and charged him with removability based his conviction which they claimed was a crime of "child abuse".  I objected because the statute in question had no element regarding the age of the victim, which seemed to be a prerequisite for that charge.  The IJ asked the government to brief the issue, but rather than stick with that argument, the government then issued a new charge claiming they my client has been convicted of two Crimes Involving Moral Turpitude because he had been convicted of lying to a police officer some years earlier.

I immediately reviewed the old conviction and quickly determined that it was constitutionally deficient because my client had indicated that we wanted an attorney but one was not granted.  The prosecutor eventually agreed and the case was vacated on constitutional grounds.

I then filed a Motion to Terminate with the immigration court.  The court was inclined to grant the motion but the government then issued a third charge claiming that my client's conviction for two counts of Attempted Aggravated Assault were not part of a "single scheme" and therefore he still had committed two CIMTs.  This was despite the fact that the plea agreement specifically stated that the two charges were part of a single scheme of conduct.

Both sides filed motions and the case drug on for some time.  However, at the final hearing the court agreed with my arguments and the client's case was terminated.  He is now out of jail and doing fine.

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.  

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.

Sometimes Immigration Law Requires Compromise

Client entered the U.S. legally but then overstayed his visa.  He's lived her for many years and is married to a U.S. citizen and he qualifies for Adjustment of Status.  The problem is that some years ago he was convicted for possession of drug paraphernalia, a class B misdemeanor in the state of Utah.  That conviction does not make him ineligible for Adjustment but it does require him to seek a waiver.  However, a second conviction for any drug related crimes would make him ineligible and would get him deported.

A few weeks ago he was arrested and charged with another count of possession of drug paraphernalia.  He was appointed a public defender but the public defender didn't understand the intricacies of immigration law when it comes to criminal convictions.  So, the client fired his public defender and asked me to step in.  I immediately approached the prosecutor and asked if he'd be willing to dismiss the drug paraphernalia charge in exchange for my client pleading guilty to two other crimes of equal gravity but without the adverse immigration consequences.  The prosecutor was amenable to that solution and the client plead guilty to two misdemeanors, neither of which affect his ability to adjust his status.

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.