Immigration consequences of criminal conduct is one of the most complicated areas of law in the United States. This introduction is meant to provide only basic information on the the immigration consequences of criminal conduct and in no way constitutes legal advice. The firm handles all facets of a non-citizen’s criminal immigration problems and recommends a thorough consultation with the firm to determine the best course of action.
Immigration consequences of criminal convictions are defined by an ever changing landscape of federal statutes, regulations, and court created case law. This area of law is extremely complex and it is extremely important that you consult with an attorney to determine what options you have when faced with deportation based on criminal convictions.
Immigration and Customs Enforcement (ICE) is a bureau within the Department of Homeland Security (DHS) that is tasked with deporting non-citizens with criminal convictions. In most cases, ICE has the burden of proof to demonstrate that the non-citizen has committed a crime and that that crime is a deportable offense. However, that is not always the case. In many cases where the non-citizen is attempting to apply for some form of relief, it is the non-citizen who has the burden of proof to demonstrate that he or she is eligible for the requested relief. The first question that arises is: What is a conviction for immigration purposes?
WHAT IS A CONVICTION FOR IMMIGRATION PURPOSES
There are only two things that are required for a “conviction” in the immigration context:
- That a) a judge or jury made a finding of guilt, or b) the non-citizen took a guilty plea or a plea of nolo-contondere, or c) the non-citizen has admitted sufficient facts to warrant a finding of guilt
- That a judge has ordered some for of punishment, penalty, or restraint on the non-citizen’s liberty
The immigration courts have interpreted the term “conviction” to mean many things. For instance, in Maryland, although a disposition of probation before judgment (PBJ) cannot be considered a conviction for any purpose in the State of Maryland, it will be considered a conviction in the immigration context. In addition, expungements mean NOTHING in the immigration context – in the immigration courts, an expunged conviction remains a conviction forever. The only way to erase a conviction in the immigration context is to vacate the conviction on appeal in the state court or through some type of state court post-conviction remedy.
In general, criminal convictions in the immigration context fall into five broad and overlapping categories: aggravated felonies, crimes involving moral turpitude, crimes of domestic violence, drug related crimes, and firearm offenses. There are other categories that will render a non-citizen deportable, but these categories are rarely prosecuted by DHS.
The term “aggravated felony” is a term of art used to describe a certain group of criminal offenses that can result in drastic immigration consequences. A non-citizen who commits an “aggravated felony” has little relief in the immigration court. In most cases, the non-citizen will get deported even if the non-citizen has been in the United States for many years and has extensive family ties herein the United States, even if the non-citizen has a spouse and children here in the United States.
The criminal offense does not need to be a felony in the state where the conviction occurred. For instance, in Maryland theft under $1000 is a misdemeanor. However, a conviction for the Maryland offense of theft under $1000 coupled with an imposition of a sentence of incarceration of one year or more will constitute can aggravated felony in the immigration consequence.
Aggravated felonies generally include very serious crimes, such as murder and rape and drug dealing. However, even relatively minor offenses may be classified as “aggravated felonies.” For instance, in Maryland second degree assault is a misdemeanor, but it carries a maximum sentence of ten years. A conviction for second degree assault – possibly for getting into a fight with someone at a bar – coupled with an imposition of a sentence of incarceration of one year or more will be classified as an “aggravated felony.”
A non-citizen who has been convicted of an “aggravated felony” is deportable and will be ineligible for bond and most forms of relief.
Here is a full list of the “aggravated felony” crime from section 101(a)(43) of the Immigration and Naturalization Act:
(43) The term “aggravated felony” means—
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in–
(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or
(iii) section 5861 of Title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at3 least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at3 least one year;
(H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography);
(J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that–
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in–
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;
(ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or
(iii) section 421 of Title 50 (relating to protecting the identity of undercover agents);
(M) an offense that–
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
CRIMES INVOLVING MORAL TURPITUDE
The Immigration and Naturalization Act has several negative consequences for non-citizens who commit crimes involving moral turpitude, or a CIMT. However, the Immigration and Naturalization Act does not define what a CIMT is. It has been defined by the courts as an offense that “necessarily entails conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In general, the following offenses constitute a CIMT: crimes involving fraud, theft, many if not most sex crimes, robbery, burglary, carrying a concealed weapon, kidnapping, voluntary manslaughter, arson, blackmail, serious version of assault. This list is not comprehensive or absolute, because many offenses are not listed and not all the crimes that are listed are not absolutely CIMTs.
A non-citizen convicted of a CIMT will be inadmissible to the United States and inadmissible to adjust status. Waivers are available for CIMTs in certain cases. CIMTs can make a green card holder deportable in certain circumstances. Waivers and relief from removal may be available.
CRIMES OF DOMESTIC VIOLENCE
Some crimes committed against a minor may qualify as “child abuse” in the broad definition in the immigration laws. In addition, crimes committed against spouses, former spouses, co-habitants, and/or the fathers and mothers of your children may qualify as crimes of “domestic violence.” Crimes of “child abuse” and crimes of “domestic violence” will make a green card holder deportable. Waivers and other forms of relief may be available. Some crimes of domestic violence may also qualify as “aggravated felonies” and CIMTs.
Almost any drug-related conviction will have drastic immigration consequences. Any drug conviction, other than possession of 30 grams of less of marijuana, will make a non-citizen PERMANENTLY inadmissible to the United States, or in other words, you will never be able to get a green card. Most, if not all, drug convictions will trigger deportation for green card holders. However, waivers and relief may be available. Any conviction for CDS (Controlled Dangerous Substance) distribution, possession with intent to distribute, manufacturing will constitute an “aggravated felony.” Simply possession will not be considered a CIMT, but most other drug related offenses will constitute a CIMT.
Firearm offenses – a conviction under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying a firearm – will trigger deportation for green card holders. However, waivers and relief may be available.
The most important aspect of Immigration Consequences of Criminal Convictions is bond. Detention is the most powerful weapon available to ICE. Detention wears down non-citizens and makes them want to quit and give up their legal rights. Immigration bond then becomes extremely important. In some cases, non-citizens who did not get bond spent years in ICE detention fighting their cases. Bond is not always available because some criminal convictions will preclude the availability of bond. But, if bond is available, it must be aggressively sought.
DEPORTATION BASED ON CRIMINAL GROUNDS
There are only three ways to BEAT DEPORTATION based on a criminal conviction:
- Assert in the immigration court that the criminal conviction does not make the non-citizen deportable; or
- Vacate the conviction in state court, or
- Apply for relief from deportation if any relief is available.
DOES THE CRIMINAL CONVICTION MAKE THE NON-CITIZEN DEPORTABLE
DHS makes mistakes. Sometimes DHS makes mistakes in the charging document, the Notice to Appear. Sometimes, DHS makes mistakes by failing to submit the proper evidence (DHS has the burden of proof in the Immigration Court to prove the existence of the criminal convictions). Sometimes, there is emerging law that can be asserted on the non-citizen’s behalf. In these cases, only an experienced criminal immigration lawyer can correctly analyze DHS’s case against the non-citizen.
VACATE THE CRIMINAL CONVICTION IN STATE COURT
Once the conviction is vacated, say for instance on constitutional grounds, the conviction can no longer be used as a grounds of deportation. The firm handles post-conviction remedies in the State of Maryland and the District of Columbia. The most important thing to remember about post-conviction remedies is that the Immigration Court will NOT delay your deportation proceedings while you pursue a post-conviction remedy. This means that you should act quickly to try to vacate you conviction or you might be deported before you can get your conviction vacated. If you are deported after your conviction is vacated, you can try to return to the United States, but your return may be hampered by numerous obstacles. The best course of action is to start the post-conviction remedy early so you have time to complete the post-conviction process before you get deported.
RELIEF FROM DEPORTATION BASED ON CRIMINAL CONVICTIONS
If you are convicted of an “aggravated felony,” there is very little relief from deportation. The only remedy, other than vacating the conviction in the state court, is deferral of deportation under the Convention Against Torture (CAT). If you believe that you will be harmed if returned to your country of origin, you may apply for CAT deferral, even if you have been convicted of an “aggravated felony.” CAT deferral is a difficult relief to get, but not impossible.
If you have not been convicted of an “aggravated felony,” there are many forms of relief available to you. You may apply for asylum, withholding or removal, CAT withholding, adjustment of status, NACARA benefits, and/or cancellation of removal.
Recent Case Results
September 9, 2017 – Citizen of El Salvador was granted U.S. citizenship after three and half years of litigation
Facts: In early 2014, a citizen of El Salvador came to the firm seeking help to get his citizenship.
The Firm’s Representation: Our client had been a green card holder for 27 years, but he had been convicted of two counts of Maryland theft in 1996 and 1997. Understandably, our client was nervous about applying for naturalization. In 2014, those theft convictions were considered “aggravated felony” theft convictions and precluded naturalization. So, the firm filed coram nobis petitions for each of his theft convictions in the Maryland state court. Unfortunately, the coram nobis petitions were denied but the firm appealed. During the appellate process, the immigration case law changed such that Maryland theft was no longer being considered an “aggravated felony” theft conviction. So, the firm asked the appellate court to stay the appeal while our client applied for naturalization. Despite extensive legal briefing, our client’s naturalization application was denied. The firm appealed the denial of the naturalization application by filing an N-336 Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA). The firm included additional briefing based on a recent case that had been decided in the Supreme Court, Mathis v. U.S., 136 S. Ct. 2243, 2247 (2016), that supported our client’s position.
Outcome: On September 9, 2017, our client was sworn in as a citizen of the United States.
Comments: This case was a very gratifying win for the firm because it was such a hard-won fight. The firm believed that our client deserved citizenship and both the firm and our client never gave up, despite the numerous setbacks.
July 29, 2016, Citizen of El Salvador granted INA 212(h) waiver after the Immigration Judge did not sustain DHS’s allegations of illegal reentry grounds of inadmissibility
Facts: In 2001, a citizen of El Salvador was physically deported based on a conviction for the Maryland offense of second degree rape by the legacy agency INS. INS deported the citizen of El Salvador despite the fact that the conviction had been reduced to third degree sex offense. Approximately two years later, the citizen of El Salvador illegally returned to the United States. In December 2015, he was picked up by DHS. After he was picked up by DHS, the family of the citizen of El Salvador contacted the firm.
The Firm’s Representation: Our client’s case was one of the most complex cases that the firm has ever handled. The firm initially sought to have our client’s original deportation order rescinded so that our client could be placed in removal proceedings and apply for permanent residency with an INA 212(h) waiver. The firm filed a motion to reopen the INA 238(b) removal order with DHS. However, almost immediately, DHS turned our client over to the U.S. Marshal’s office for a federal prosecution for illegal reentry after deportation for an aggravated felony. The firm worked with the Office of the Federal Public Defender, who represented our client in federal our court, as much as possible. After a year long court battle, the amazing OFPD prevailed and the illegal reentry charges were dismissed because the government had violated the due process rights of our client when he was deported based on an erroneous criminal conviction. Tellingly, DHS did not try to re-instate the flawed 2001 removal order. Instead, DHS placed our client into fresh removal proceedings. Most troubling to the firm was the fact that Notice To Appear, the DHS charging document, alleged that our client was inadmissible for illegal reentry after deportation and/or illegal presence in the United States pursuant to INA § 212(a)(9)(A)(ii), INA § 212(a)(9)(C)(i)(I), or INA § 212(a)(9)(C)(i)(II). These grounds of inadmissibility would have blocked any attempt by our client to become a permanent resident here in the United States. To address these allegations by DHS, the firm asserted to the Immigration Court that it had the authority to collaterally attack our client’s prior removal order upon a showing of a “gross miscarriage of justice.” The firm further asserted that our client never had an opportunity to apply for relief from removal (adjustment of status based on marriage to a permanent resident) in 2001 and 2002, and if he had had that opportunity, he would have been granted permanent residency and he would never have been deported. The firm further asserted that if our client had not been deported and instead had been granted permanent residency, he would never have illegally reentered the United States. The firm asked the Immigration Court to place our client in the the position that would have had in 2001 with an opportunity to apply for relief from removal by applying for permanent residency through marriage to a permanent resident, who now is a U.S. citizen.
Outcome: On July 29, 2016, the Immigration Court agreed with the firm’s position and our client was granted permanent residency with an INA 212(h) waiver. The Immigration Court did not sustain the illegal reentry charges of inadmissibility. Ten days later, DHS decided that it would not appeal the decision and our client was released from DHS detention. All together, our client had been detained by the U.S. Marshals and DHS for nearly two years. Needless to say, our client and his family was extremely happy with the outcome.
March 31, 2016, Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief
Facts: Last year, the firm reported that our client’s removal proceedings had been reopened, sixteen years after our client had been unjustly deemed ineligible for INA 212(c) relief and ordered removed.
The Firm’s Representation: After our client’s case was reopened, venue for the removal proceedings was moved to the Charlotte, North Carolina Immigration Court, near where our client resided. Our client demanded that the firm continue to represent him and the firm agreed that we were in the best position to represent our client moving forward. The firm made the final preparations for our client’s INA 212(c) application for relief and represented our client at his individual hearing on relief in the Charlotte, North Carolina Immigration Court.
Outcome: On March 31, 2016, our client was finally granted INA 212(c) relief, nearly seventeen years after our client had been unjustly deemed ineligible for such relief. Our client was once again a lawful permanent resident. Needless to say, our client was extremely happy with the outcome.
Comment: Our client was a citizen of Cambodia, a country that refused to issue our client a travel document to return to Cambodia after he had been ordered removed to Cambodia. Had Cambodia issued our client a travel document, our client would have been physically deported years ago. Our client was lucky, but sadly thousands of green card holders were deported by a United States immigration system that obstinately and unjustly denied their legal right to apply for INA 212(c) relief, a relief that would have provided these green card holders a chance to retain their legal status and remain in the United States.
August 21, 2015 – Citizen of India receives U.S. citizenship with theft conviction
Facts: In March 2014, a citizen of India sought a second opinion on his ability to naturalize even though he had a theft conviction.
The Firm’s Representation: This case should not have been difficult. The difficulty for the firm was that our client had received an opinion from a highly respected and high experienced immigration attorney that our client should under no circumstances attempt to naturalize. The prior immigration attorney had warned our client that if he tried to naturalize, he would be denied and placed in removal proceedings and deported. After quite a lot of discussion, the firm convinced our client that this prior advice was incorrect and the firm advised our client to file an application for naturalization, which the firm did. Making matters worse, our client’s interviewing officer at USCIS was a recent transfer from California and was not familiar with Maryland law. The firm received two disturbing Requests for Further Evidence (RFE) from USCIS. The firm responded to the RFEs and patiently explained to USCIS that our client was indeed eligible for naturalization. Nevertheless, our client was nervous the entire time, based on the initial advice from his prior immigration attorney and based on the RFEs from USCIS.
Outcome: On August 21, 2015, our client became a citizen of the United States.
June 10, 2015 and March 20, 2015, The Board of Immigration Appeals reopened the deportation cases for two citizens of Cambodia
Facts: Last year, two citizens of Cambodia approached the firm to see whether the firm could reopen their deportation orders from the mid 1990s. Both of our clients had serious criminal convictions that made them deportable as “aggravated felons” under the Immigration and Naturalization Act.
The Firm’s Representation: After receiving the results of the FOIA requests, the firm discovered that both of the citizens of Cambodia had been denied the opportunity to seek INA 212(c) relief in their deportation cases. The firm believed that reopening was possible based on the recent Supreme Court cases of Judulang v. Holder, 132 S. Ct. 476 (2011) and Vartelas v. Holder, 132 S. Ct. 1479 (2012), which broadened the availability of INA 212(c) relief. In February, 2014, the Board of Immigration Appeals issued its decision in Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), which cemented the Supreme Court decisions in the immigration removal system. The biggest challenge that the firm faced in reopening the cases was demonstrating that our clients were eligible for INA 212(c) relief and that they would merit relief as a matter of discretion.
Outcome: Both of our clients’ motions to reopen were granted by the Board of Immigration Appeals. Our clients were lucky because the Cambodia is not accepting criminal deportees from the United States and our clients were permitted to remain in the United States for many, many years after their deportation orders were final. Now, our clients will have the chance to get their green cards back.
February 23, 2015 – Citizen of Guatemala retains his green card with a 212(h) waiver
Facts: In July 2012, a citizen of Guatemala entered the United States and was stopped at the border and placed in secondary inspection. Even though the citizen of Guatemala had a green card, he had several convictions for theft and he was inadmissible to enter the United States. He was placed in removal proceedings and came to the firm for help.
The Firm’s Representation: Our client walked into the firm’s office for a consultation at 5:00 pm. After reviewing our client’s criminal history, it was discovered that our client had a theft conviction and a one year suspended sentence, which in the immigration context is an aggravated felony. Further review showed that our client had walked into the the firm’s office on exactly the 90th day after he was sentenced for his theft conviction. In Maryland, criminal defendants have 90 days to file a motion to reconsider the sentence. In this case, we needed to reduce our client’s sentence by one day to 364 days or less, but the court had already closed for the day. The firm called a colleague in Montgomery County who stated that the court had an after hours drop box. The firm quickly drafted a motion to reconsider sentence and emailed the motion to the firm’s colleague who agreed to deposit our client’s motion in the after hours drop-box for the Montgomery County Circuit Court. What luck! Several months later, the motion was granted and our client’s sentence was reduced to 360 days. The sentence reduction paved the way for our client to seek an INA 212(h) waiver in the Immigration Court. Our client did the personal work to keep himself out of trouble and the firm did the rest.
Outcome: Our client was granted an INA 212(h) waiver and he was able to retain his green card. In a few years, our client can apply for naturalization.
December 1, 2014 – Three of the firms clients released from DHS detention during Thanskgiving week
On Friday November 21, 2014, our client from Mexico was released from DHS custody with a brand new green card when DHS made its decision not to appeal the grant of the green card with an INA 212(h) waiver by the Immigration Judge. For six months, our client had been represented by another immigration attorney who was not aware that the client had a form of relief in the Immigration Court and simply asked for continuance after continuance until the client’s family sought the firm’s help. Although our client had a serious criminal conviction for the Maryland offense of second degree child abuse, the firm was still able to position our client for success in the Immigration Court through careful and meticulous pre-hearing preparation. The firm’s legal strategy was contested by DHS, but the Immigration Judge sided with our theory of our client’s eligibility for a INA 212(h) waiver. Our client was lucky that he had a caring and loving family that stood by him. Our client had spent over a year in DHS detention.
On Tuesday November 25, 2014, two days before Thanksgiving, the firm’s client from Sierra Leone was released from DHS detention with his brand new green card. Our client had convictions for credit card fraud and theft and he was removable for two or more crime involving moral turpitude not arising out of a single scheme of criminal misconduct pursuant to INA 237(a)(2)(A)(ii). The client’s original attorney thought the best plan of action was to file an application for withholding of removal based on a concession that the client’s convictions were “aggravated felonies.” After questioning such a course of action, the client’s family came to the firm for help. The client’s fiance, who was a U.S. citizen, wanted to marry the client. The firm arranged the marriage while the client was detained and then filed an I-130 on behalf of our client and his wife. Once the application was I-130 approved, the client adjustment status in the immigration Court with an INA 212(h) waiver – our client’s convictions were not “aggravated felonies.” Once the application and waiver were approved by the Immigration Judge, DHS waived appeal and our client was released from custody the same day, just in time for Thanksgiving. Our client had spent over one year in DHS custody.
On December 28, 2014, the firm’s client from Liberia was released from custody after DHS decided not to appeal the Immigration Judge’s decision to grant adjustment of status with a refugee waiver for a criminal conviction for the Maryland felony offense of first degree assault. The client had two previous immigration attorneys who were not taking the client’s case in the right direction. The client’s family sought out the firm to take over the case. Preparation was the key to the case – preparation of the various witnesses, both lay witnesses and expert witnesses, and preparation of the documentary evidence. After the Immigration Judge issued a written decision granting the adjustment and waiver, DHS waited the full thirty days in deciding not to appeal the case. Our client was released on December 28, 2014, the day after Thanksgiving, after 11 months of DHS detention, with his brand new green card.
It was a good week for the firm’s clients.
April 14, 2014 – Citizen of El Salvador is returned to the United States after victory in the U.S. Court of Appeals for the Fourth Circuit
Facts: On May 28, 2013, a citizen of El Salvador was ordered deported by the Department of Homeland Security (DHS) according to a final administrative order of removal. The family of the citizen of El Salvador came to the firm for help.
The Firm’s Representation: Our client had a conviction for fourth degree sex offense in Maryland. DHS alleged that the conviction was an aggravated felony, sex abuse of a minor. Immediately, the firm contacted DHS and demanded to file a rebuttal to DHS’s allegations. DHS also refused to turn over the conviction records upon which it made its aggravated felony determination. However, after consulting with their attorneys, DHS relented and turned over the records for inspection by the firm and permitted the firm to file a rebuttal. The firm wrote a rebuttal within several days and submitted it to DHS. DHS refused to change their position and ordered our client removed. The firm filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit). Unfortunately, the firm could not stop our client’s physical deportation because the prevailing case law of the Fourth Circuit for stays does not permit a stay of deportation for circumstances such as our client’s circumstances. After filing the opening brief in the Fourth Circuit, the attorneys for the government realized that the DHS’s position was untenable. DHS was forced to rescind the final administrative removal order. The firm then began the process of getting our client returned to the United States. After some reluctance, DHS issued our client a parole document so he could return to the United States. On April 14, 2014, our client returned to the United States.
Outcome: Our client’s case was decided by the U.S. Immigration Court in Baltimore, Maryland. Our client can seek the relief of Temporary Protected Status (TPS). On June 3, 2014, the Immigration Judge re-instated our client’s TPS and our client was released from ICE detention later that day.
October 1, 2013 – Citizen of Mexico receives cancellation of removal for certain non-permanent residents despite convition for Maryland sex offense in the fourth degree
Facts: In January 2012, a citizen of Mexico was detained by ICE – he had no status and a conviction for Maryland fourth degree sex offense. The citizen of Mexico consulted with several very reputable immigration attorneys who all stated that there was nothing they could do for the citizen of Mexico. The citizen of Mexico’s family continued looking for a lawyer and they finally found our law firm.
The Firm’s Representation: The firm first analyzed whether there was any relief available for our client. Our client had lived in the United States for over thirteen years and he had a U.S. citizen wife and three U.S. citizen children. One of our client’s children was very sick. The firm analyzed whether our client was eligible for cancellation of removal, which has very strict eligibility rules regarding criminal convictions. Despite our client’s conviction, the firm realized that our client was eligible for cancellation of removal because his sex offense conviction could be categorized as a petty crime under the crimes involving moral turpitude statute. The firm prepared our client’s case for trial in December 2012 – the firmed filed a mountain of hardship evidence and a written brief on eligibility for cancellation of removal. The hearing went very well, but the Immigration Judge could not issue a decision because the cancellation of removal visas had already been exhausted for the 2013 fiscal year. The Immigration Judge scheduled a hearing for October 1, 2013, the first day of the next fiscal year.
Outcome: The Immigration Judge had written his decision months earlier and had the decision entered on October 1, 2013. The Immigration Judge granted the relief and now our client can now get his green card.
August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported
Facts: A citizen of El Salvador was detained by ICE – he had no status and a conviction for possession of marijuana. He hired a very reputable immigration attorney. Nevertheless, the immigration attorney did not know how to deal with a Maryland conviction for possession of marijuana. The Immigration Attorney asked the Immigration Court to grant the citizen of El Salvador voluntary departure, which was granted on May 1, 2013. The citizen of El Salvador’s family was frantic because they did not want him to be deported. The family came to the firm on May 15, 2013.
The Firm’s Representation: First, jumped into action an filed a coram nobis petition in the Maryland state court. Second, the firm filed a motion to reopen and a stay of deportation with the Immigration Court. Time was ticking because ICE wanted to physically deport our client. After several phone calls to the Immigration Court clerks, the stay was granted. Two days later, the detention center asked our client to pack his belongings because he was on the deportation list for the day. Even though the firm had previously contacted ICE and informed them of the stay, the detention center had not received notice. After several further phone calls, our client was taken off the deportation list. The firm had stopped our client’s deportation with only two days to spare. After a hearing on July 26, 2013, our client’s coram nobis petition was granted. The firm then filed a joint motion to reopen and a joint motion for bond in the Immigration Court, with the permission of ICE, and our client was released from ICE custody on $3,000.00 bond on August 12, 2013.
Outcome: Our client lost everything when he pleaded guilty to possession of marijuana – he lost his TPS status, he was placed in removal proceedings, he was detained, and he was almost deported. Tragically, our client was completely innocent of these charges which was borne out on postconviction. Our client is now in the process of getting his TPS back and possibly seeking cancellation of removal in the Immigration Court.