Introduction
Immigration law is one of the most complicated areas of law in the United States because the law changes all the time through decisions in the Board of Immigration Appeals and in the federal courts including the Supreme Court of the United States. Within immigration law, there is an even more complicated aspect of law regarding the immigration consequences of criminal conduct. Knowledge of the immigration consequences of criminal conduct is extremely important since the United States government has aggressively started deporting non-citizens with criminal convictions.
DISCLAIMER: This introduction is meant to provide only basic information on 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 despite having committed criminal offenses. 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 accepted 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 form of punishment, penalty, or restraint on the non-citizen’s liberty
The immigration courts have interpreted the term “conviction” to encompass many criminal procedures that result in something other than a guilt plea. 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 – under the Immigration and Naturalization Act, an expunged conviction remains a conviction despite expungement. 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 only rarely prosecuted by DHS.
Aggravated Felony
The term “aggravated felony” is a term of art described in the Immigration and Naturalization Act 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.
The criminal offense does not need to be a felony in the state where the conviction occurred and neither does the criminal offense need to be aggravated.
Until recently, a conviction for Maryland theft under $1000, which is a misdemeanor under state law, coupled with a sentence of one year of more (even if suspended) was considered to be an aggravated felony theft offense for immigration purposes. What changed? On March 22, 2017, the Board of Immigration Appeals issued a decision that held that Maryland theft could not be considered an aggravated felony theft offense.
Likewise, until a couple of years ago, a conviction for the Maryland offense of second degree assault, which is a misdemeanor under state law, coupled with a sentence of one year of more (even if suspended) was classified as an “aggravated felony” crime of violence. What changed?
On October 1, 2013, the U.S. Court of Appeals for the Fourth Circuit ruled that the Maryland offense of second degree assault categorically could not be classified as an aggravated felony crime of violence. See United States v. Royal, 731 F.3d 333 (4th Cir. 2013).
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 (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, some theft offenses, many if not most sex crimes, robbery, burglary, carrying a concealed dangerous weapon with intent to injure, kidnapping, voluntary manslaughter, arson, blackmail, and serious versions of assault (that involve brandishing a firearm or require serious injury). This list is not comprehensive. Indeed, the courts have ruled that a great many criminal offenses can be classified as CIMTs.
A non-citizen convicted of a CIMT will be inadmissible to the United States and inadmissible to adjust status, but waivers may be available for CIMTs in certain cases. CIMTs can make a green card holder deportable in certain circumstances, but a waiver and/or relief from removal may be available.
Once again, the law regarding CIMTs changes often. Until recently, a conviction for the Maryland offense of theft was considered a CIMT. What changed? On June 15, 2018, the U.S. Court of Appeals for the Fourth Circuit ruled that the Maryland offense of theft could not be classified as a CIMT. See Martinez v. Sessions, 892 F.3d 655 (4th Cir. 2018).
CRIMES OF DOMESTIC VIOLENCE
Some crimes committed against a minor may qualify as “child abuse” under 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” as well as CIMTs.
DRUG-RELATED OFFENSES
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. In other words, you will never be able to get a green card with almost any drug conviction. In addition, most, if not all, drug convictions will trigger deportation for green card holders. However, waivers and relief may be available. Any conviction for controlled dangerous substance (“CDS”) distribution, possession with intent to distribute, manufacturing will generally constitute an “aggravated felony.” Simple CDS possession alone will not be considered a CIMT or an aggravated felony, but it will still make you inadmissible or removable.
Notable exception: under current immigration related case law, the Maryland offense of possession of paraphernalia cannot be considered a drug-related offense under the Immigration and Naturalization Act.
FIREARM OFFENSES
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.
IMMIGRATION BOND
The most important aspect of immigration consequences of criminal convictions is bond. Immigration detention is the most powerful weapon available to ICE to wear you down and makes you want to quit and give up your 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.
More info: see Immigration Bonds page
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?
ICE sometimes makes mistakes. Sometimes ICE makes mistakes in the charging document, which is called the Notice to Appear. Sometimes, DHS makes mistakes by failing to submit the proper evidence (ICE has the burden of proof in the Immigration Court to prove the existence of the criminal convictions and deportability). Sometimes, there is old or 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 ground 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. In some instances, which are rare, a waiver may be available for non-citizens to waive the consequences of an aggravated felony. In the alternative, other than trying to vacate the conviction in the state court, deferral of deportation under the Convention Against Torture (CAT) is generally the only relief available. 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.
Related Cases
Citizen of Jamaica is granted permanent residency even though he filed his I-751 Petition to Remove Conditions on Residency over six years late
November 11, 2020
Facts: In April of 2016, a citizen of Jamaica came to the firm seeking help with his temporary residence card which had expired six years earlier. Too, our client had already been placed in removal proceedings.
The Firm’s Representation: Given the six-year delay, the firm could not promise our client a positive result, nevertheless the firm went to work right away and gathered the necessary documents and forms to try to remove the temporary conditions of our client’s temporary residency card. The firm discovered that our client’s wife had filed for divorce and never properly served our client with any notice of the divorce proceedings. The firm applied for a waiver based on divorce in the I-751 Petition to Remove Temporary Conditions on Residency application. The processing of our client’s I-751 took several years. In the meantime, our client had several arrests and other brushes with law enforcement which resulted in extended periods of incarceration by local law enforcement and ICE after our client’s immigration bond was revoked. The firm worked with our client’s Virginia criminal defense attorney to fashion an immigration friendly plea. Based on our client’s numerous brushes with law enforcement, the USCIS scrutinized our client’s I-751 application closely and requested numerous documents through a Notice of Intent to Deny (because USCIS asserted that our client’s marriage to his ex-wife was not bona fide) and a Request for Further Evidence (for documents related to our client’s arrests). Regarding the Request for Further Evidence of our client’s arrests, the firm prepared a legal memorandum asserting that our client’s arrests and convictions had no bearing on the USCIS decision to approve or deny our client’s I-751.
Outcome: Our client’s I-751 was granted on October 2, 2020. The firm learned about the grant of residency on October 8, 2020 and after the firm made some phone calls to ICE, our client was released from ICE custody on October 9, 2020.
Comments: Our client spent two years in local and ICE custody and his I-751 application was far from ordinary and it was a gratifying win for the firm and for our client. Our client and his family were amazed and thrilled that he walked out of ICE custody with his permanent residency card. The firm also advised our client that he was immediately eligible to apply for citizenship.
Anne Arundel County District Court grants coram nobis relief to citizen of Mexico
January 3, 2018
Facts: In early 2017, a citizen of Mexico came to the firm seeking help from being deported.
The Firm’s Representation: Our client had been placed in removal proceedings. However, he had resided in the United States for over 20 years and he had two U.S. citizen children, which made him eligible for cancellation of removal for certain non-permanent residents pursuant to INA 240A(b). The problem was that our client had a conviction for the Maryland offense of identity theft. Most likely, such a conviction would have made our client ineligible for cancellation of removal. Our client stated to the firm that he had been advised by an immigration attorney that a conviction for the Maryland offense of identity theft would not affect his immigration status. The firm disagreed and recommended that our client file a coram nobis in the criminal court. The firm recognized that our client should never have taken a guilty plea because the evidence was insufficient to sustain the charge to theft. Meanwhile, in the immigration court, our client’s eligibility for cancellation of removal was being questioned by the immigration judge who requested briefing on the issue from the firm.
Outcome: On January 3, 2018, the Anne Arundel County District Court granted the coram nobis petition and vacated our client’s conviction for the Maryland offense of identity theft. Instead of briefing the issue in the immigration court, the firm simply filed a copy of the order from the criminal court and asserted that our client was now eligible to move forward on his application for cancellation of removal for certain non-permanent residents pursuant to INA 240A(b) since he had no conviction at all. Hopefully, with the firm’s help, our client will obtain his permanent residency in the not too distant future.
Citizen of El Salvador was granted U.S. citizenship after three and half years of litigation
September 9, 2017
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.
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
July 29, 2016
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.
Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief
March 31, 2016
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.
Citizen of India receives U.S. citizenship with theft conviction
August 21, 2015
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.
The Board of Immigration Appeals reopened the deportation cases for two citizens of Cambodia
June 10, 2015
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.
Citizen of Guatemala retains his green card with a 212(h) waiver
February 23, 2015
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.
Citizen of El Salvador is returned to the United States after victory in the U.S. Court of Appeals for the Fourth Circuit
April 14, 2014
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.
Citizen of Mexico receives cancellation of removal for certain non-permanent residents despite convition for Maryland sex offense in the fourth degree
October 1, 2013
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.