Impact Of DWI Conviction on Non-Citizens in Deportation

Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2-2-18)
Analysis & Suggestions for the Criminal Defense Bar

The Board of Immigration Appeals (BIA) hears appeals from the U.S. Immigration Courts. A non-citizen may appeal from an Immigration Judge’s (IJ’s) order of deportation; other times the government may appeal an IJ’s order finding the person is not in fact deportable; or they may appeal an order granting discretionary relief from deportation. The BIA also hears appeals of IJ’s bond decisions. Precedent decisions, such as that in Siniauskas, must be followed by all IJ’s, unless there is contrary, controlling, precedent from the Circuit Court of Appeals with jurisdiction over where the deportation proceedings take place.

Matter of Siniauskas, decided earlier this month, involves an appeal by the government from an IJ’s decision granting Siniauskas release from custody while his deportation proceedings were pending, upon posting a $25,000.00 bond. While Siniaukas was in fact undocumented, he was eligible for relief from deportation in the form of adjustment of status based on an approved visa petition that his U.S. citizen daughter had filed on his behalf. In addition to his daughter, he had his lawful permanent resident wife and other longstanding and deep ties to his community.

The government appealed the IJ’s bond decision. They argued Siniauskas’s three (3) DWI convictions from approximately ten years prior to his detention by ICE, combined with his pending DWI charge, demonstrated he presented a danger to the community and should have been denied bond while his removal proceedings were pending. In reversing the IJ’s decision, the BIA ruled his history of prior convictions for DWI, coupled with his pending DWI prosecution, indicated he presented a danger to the community; undercut his claims of rehabilitation; and warranted detention during his deportation proceedings.

This decision is part of a trend toward increasingly harsh treatment by immigration authorities of individuals convicted of, or in some instances, simply charged with, driving while intoxicated. While Siniauskas may not present as the most sympathetic figure, it is anticipated IJ’s will use the decision to justify denying release to other non-citizens with a pending DWI prosecution, or with prior DWI convictions, despite what may be stronger equities than those presented by Siniauskas. The decision is also notable because, under the immigration laws, a conviction for DWI, in and of itself, does not render a lawful permanent resident subject to deportation, nor does it render inadmissible someone who is otherwise eligible to gain status as a lawful permanent resident. In fact, a conviction for DWI is not even one of the criminal offenses enumerated at §236(c) of the Immigration and Nationality Act (“INA”), which details the convictions that subject non-citizens to mandatory detention during their deportation proceedings.

Release under bond during deportation proceedings is of critical importance if the client is to have the best chance of winning his case.  For those otherwise eligible for some form of discretionary relief, a charge or conviction for DWI is considered a substantial negative factor and weighs heavily against an IJ exercising his discretion in favor of permitting the person to remain in the U.S.. Deportation proceedings for detained individuals are customarily concluded within months, whereas those involving individuals released under bond routinely take years. A client at liberty under bond has the opportunity to seek, and complete, treatment, and thereby demonstrate genuine rehabilitation. This will provide the client’s deportation defense1 attorney a far better chance of convincing the Immigration Judge his client merits a favorable exercise of discretion.

If defense counsel understands his client will eventually be placed into deportation proceedings – either at the conclusion of his prosecution for his DWI case, or while on probation – he can work from the outset of his representation to prepare his client for his future deportation proceedings. This is of critical importance whether the client is undocumented, or, a lawful permanent resident with a previous conviction that renders him deportable. By ensuring the client enrolls in, and if possible completes, counseling while the DWI charge is pending, defense counsel increases the likelihood that if placed into deportation proceedings, the IJ will find the client has demonstrated sufficient rehabilitation that he should not be considered a danger to the community and should be granted release under bond.

Release under bond not only affords the client the ability to remain with his family, and to work to fund the defense of his deportation proceedings, but in addition, it affords the client additional time within which to demonstrate rehabilitation, and to accrue favorable equities. The greater the time between the non-citizen’s last arrest, and the time when the IJ must decide whether to permit the person to remain in this country, the greater the chance the judge will find rehabilitation.

In order to demonstrate rehabilitation, the client should promptly enroll in a recognized treatment program. If held in custody during his criminal prosecution, determine whether the jail has any type of alcohol counseling program, and if so, have the client enroll. If it appears he must serve time in jail – try to negotiate a period of in-patient treatment in lieu of extended incarceration. If that is not possible, ask that he be placed in the DWI dorm, or be afforded treatment while in custody.

If the person is at liberty but will ultimately plead guilty and receive a sentence of incarceration or of probation, delay taking the plea in order to afford the client the chance to complete treatment. In the alternative, negotiate a plea where the client will remain at liberty after pleading guilty, so he can complete his treatment prior to sentencing. A sentence to a conditional discharge, as opposed to one of incarceration or probation, will often forestall the client being placed into deportation, and so provide additional time for the client to demonstrate rehabilitation. Ideally the program should include random screening for alcohol and controlled substances; test results and counseling updates should be saved, as these will provide corroboration for the client’s later claims of abstinence.

While this advisory is geared toward DWI cases, the importance of demonstrating rehabilitation holds true irrespective of whether the client’s underlying problem is with alcohol, drugs, or domestic violence. While counseling is generally helpful for most of our clients, when the client is a non-citizen, it becomes imperative. The recalcitrant client needs to understand that completing counseling will not only help him in his life, and with his criminal case, but it may also enable him to gain release under bond if he is detained by ICE.  Ultimately, by demonstrating rehabilitation, the client may avoid the life altering hardship which follows detention and deportation.

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[1] Although Congress, in true Orwellian form, renamed it “removal” proceedings in 1996, it remains what is historically known as “deportation” proceedings. We should not strip these proceedings of the historical context surrounding the word “deportation”; we should call it what it is, because deportation may result in: “the loss of both property and life, or of all that makes life worth living.” We should never forget that.  Justice Brandeis, Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

 

Lecture: Best Practices for Avoiding Claims of Ineffective Assistance of Counsel When Defending Non-Citizens in Criminal Proceedings

Earlier this week, George A. Terezakis, Esq. presented a lecture, at the Nassau County Bar Association, which provided the criminal defense bar with guidance on the best practices for criminal defense lawyers when defending non-citizens.  The Supreme Court’s 2010 decision in Padilla v. Kentucky requires defense attorneys to ascertain and advise their non-citizen clients of the direct immigration consequences of any proposed plea agreement, or of conviction after trial.

Criminal convictions can result in: detention, loss of legal status, deportation and permanent separation from the client’s family.  Knowledge of the interplay between criminal and immigration law, and guidance from an experienced “crimmigration” attorney, can enable defense counsel to craft a plea agreement which avoids or minimizes adverse immigration consequences.  This permits the client to make an informed decision as to whether to accept a proposed plea agreement, or to exercise their right to go trial.

“V” is for Victory! Terezakis Firm Wins for July 2017

Withdrawal of Aggravated Felony Charge After 12 Years & 3 Appeals:

To win deportation-removal cases, you must be tenacious; have a legal theory supported by the law, and keep fighting, even if you lose initially. Our client, a long term lawful permanent resident was charged with being removable for having been convicted of an aggravated felony.  Unfortunately, the elements of the aggravated felony he was charged with were not defined under the immigration law. During the 12 years we litigated his case, he was ordered deported 3 times, and 3 times we appealed to the Board of Immigration Appeals: each time, due to errors by the court, his case was remanded. Finally, in a different case, the U.S. Supreme Court issued a decision which adopted the same arguments we had raised from the outset. Using that new precedent, we filed a fourth motion to terminate, and after 12 years the government finally conceded we were correct and withdrew the aggravated felony charge. When we shared the news with my client and his wife, he literally cried with joy.

GRANT OF N.A.C.A.R.A. RELIEF UNDER HEIGHTENED STANDARD

As a result of the settlement in the American Baptist Church class action lawsuit, Congress passed the Nicaraguan and Central American Relief Act, which sought to remedy I.N.S.’s history of unfairly denying Central American’s asylum claims. The N.A.C.A.R.A. made it easier for members of this class to gain status as lawful permanent residents, and also allowed members of the class with certain criminal convictions to still become residents, provided they were able to demonstrate a heightened standard of hardship, and to show ten years of good moral character.  After a successful appeal; the passage of the ten years necessary to demonstrate his good moral character and rehabilitation; we won his hearing and he was granted status as a lawful permanent resident.

TWO MOTIONS TO RE-OPEN DEPORTATION ORDERS GRANTED

Our client, a long term lawful permanent resident, was rendered deportable as the result of his conviction for possessing a controlled substance.  His previous attorney was relieved by the Court, and when he failed to appear in Court for his scheduled hearing, he was ordered deported in absentia, i.e., in his absence.  We were retained after he was picked up by I.C.E., and when his physical removal was imminent.  We were able to demonstrate, with medical records, that the client’s father had been hospitalized following surgery on the hearing date, and the notice of the removal order was defective.  We convinced the Judge to vacate the deportation order, and then we were able to have his proceedings terminated based upon a new decision by the 2nd Circuit regarding the government’s burden of proof in controlled substance cases.

CONVICTION VACATED: RELIEF FROM DEPORTATION NOW AVAILABLE

It’s been 7 years since the Supreme Court ruled, in Padilla v. Kentucky, that it is ineffective assistance for defense counsel to fail to warn their client of the adverse immigration consequences of a proposed guilty plea, and yet, such failures continue to take place with shocking frequency. Unfortunately, the first time many learn their seemingly favorable plea bargain subjects them to deportation – removal, is after they are taken into ICE custody and are facing deportation. Often, the only way for them to avoid being deported is to go back to criminal court and try to vacate their conviction.

This past Friday, our CPL 440.10 motion to vacate our client’s misdemeanor conviction was granted, based on ineffective assistance of counsel. We convinced the Judge and District Attorney’s Office that if prior counsel had been aware the plea he negotiated would subject his client to deportation, he could easily have negotiated an alternate, non-deportable plea.  We then negotiated a plea to a lesser offense, and our client is now eligible for cancellation of removal as a non-permanent resident.

In far too many cases, a plea blindly entered into, subjects a lawful permanent resident to deportation, or renders an undocumented client ineligible for cancellation of removal. A major part of our practice involves guiding defense counsel and their clients safely through the immigration minefield; other times, as here, our familiarity with criminal-immigration law enables us to vacate a conviction and so help our clients avoid being deported.

Luckiest Man Alive…Cancellation Granted for Firearm Conviction

When he was 8, he was in a horrific auto-crash: his father died, he survived.

When he was 9, he immigrated to the U.S..

At 25, he was broadsided by a car while riding his motorcycle. His femur was exposed, he had multiple fractures, and they had him on a slab in the hospital’s basement morgue: dead. His mom arrived at the hospital shortly after the call to view her son’s body; as she screamed in grief, our client’s brother noticed his finger twitching…a coma! He went on to a full recovery!

Yesterday, at the conclusion of his deportation hearing, an Immigration Judge granted our client cancellation of removal, as a lawful permanent resident, for his conviction for possessing a firearm – also from his early 20’s. Now a grown man in his 40’s, the Judge recognized our client’s rehabilitation, including: his owner-ship of two thriving businesses; real estate holdings; his history of paying taxes; exceptionally close family ties; community service and his support for his mother throughout his life. Here’s to second chances and to keeping families together!

Christmas comes Early!

Monday, after trial, we won a cancellation of removal hearing for our client, a long term permanent resident. Despite his 15 years as a union painter – his drug addiction drew him into a major drug conspiracy, resulting in a felony conviction for possession of a controlled substance. Now he has a second chance at life.

Thursday, after 32 years of fearing deportation as an undocumented immigrant, our client adjusted her status and became lawful permanent resident. She started crying after the interviewer approved her application, then her son started crying, and when we went outside and told her elderly parents, they started crying. Tears of joy.  Continue reading

Speaking for the Suffolk County Criminal Defense Bar

Last week, I was asked to speak at an event for the Criminal Defense Bar in Suffolk County. The lecture was on Strategies to Avoid Triggering Deportation for Non-citizen Defendants. Padilla v. Kentucky mandated defense attorneys advise their non-citizen clients of the adverse immigration consequences of a proposed plea bargain. How can they do it if they themselves don’t understand the complex interplay between criminal and immigration law? Always an honor to be asked to share my experience in this field with my fellow criminal defense attorneys.

Convictions Vacated to Avoid Deportation

In the past month, we successfully vacated two criminal convictions for our clients, and as a result, their deportation-removal proceedings will be terminated.

One client lost his Temporary Protected Status (“TPS”), because his defense attorney failed to warn him that pleading guilty to a second misdemeanor would render him removable. After pleading guilty, the client was placed into removal proceedings. After we filed a 440 Motion with the Criminal Court, the Judge granted our motion to vacate his conviction, finding that prior counsel’s failure to warn our client of the direct immigration consequences of his guilty plea, violated the Supreme Court’s decision in Padilla v. Kentucky, which requires defense attorneys to warn their clients of the immigration consequences of a proposed guilty plea. The Criminal Court Judge found defense counsel’s ineffective assistance prevented our client from making an informed decision on whether to plead guilty. Our client is now eligible to reapply for Temporary Protected Status, and we will be moving the Immigration Court to terminate his removal proceedings.  Continue reading

Aggravated Felony Win!

After being placed in deportation-removal proceedings due to her felony fraud conviction involving a $10,000.00 loss to the government, we were able to overcome the aggravated felony bar to cancellation of removal and win our lawful permanent resident a grant of cancellation of removal.
Our client, a single mother, pleaded guilty to felony larceny for under-reporting her income when renewing her public housing contract. She was ordered to pay $10,000.00 in restitution, and although a lawful permanent resident, she was placed into deportation-removal proceedings for having been convicted of a fraud aggravated felony. Several immigration attorneys advised her she had in fact been convicted of an aggravated felony, and would almost certainly be deported despite having lived in this country in excess of 20 years and despite having minor U.S. citizen children; they turned her away. Her two prior convictions for D.W.I. were more salt in the wound. She was referred to our firm.
                                      A Dollar’s Difference Spares Deportation!
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Winning Aggravated Felony Deportation-Removal Cases

Winston Churchill said we should “Never Surrender”, and he was right.

Too often attorneys see a non-citizen, especially a lawful permanent resident, who is charged with an aggravated felony conviction, and they simply turn the case away because they believe nothing can be done for the person, but that is often just not true. Sure, aggravated felony cases are the hardest to win, but the reality is they can be successfully defended, although we can’t win them all, we have saved many clients with seemingly hopeless deportation-removal cases.

We realize even good people sometimes make serious mistakes. Often they’ve accepted responsibility for what they’ve done. They’ve pled guilty to a felony, served a prison sentence, and in many instances have gone on to change their lives for the better. Then one day there’s a knock at the door, the person is taken into custody by I.C.E. and they face the true terror of deportation proceedings: mandatory detention, immigration court, and the threat of being deported and separated from their home and families. In many cases, the person came to the U.S. as a child. They have had no contact with their native country and have no prospects for employment. They face a life of misery and isolation if deported, and their families in the U.S. will also suffer. That is why it is so important to fight these cases, and to win. Here are some recent examples. Continue reading