CANCELLATION OF REMOVAL: TWO TRIALS, TWO SECOND CHANCES!

For lawful “permanent” residents, a criminal conviction often means deportation, banishment from this country and permanent separation from their family and friends. Fortunately, the immigration laws provide the opportunity to seek a  “second chance” for long term permanent residents with certain convictions.  The first battle is to demonstrate our client’s eligibility for this relief; once that battle is won,  the client must have a trial: referred to as an “individual” or a “merits” hearing, before an Immigration Judge, with a prosecutor who represents ICE.

With certain narrow exceptions, a conviction for any controlled substance offense renders a non-citizen deportable.  As a result of the opioid epidemic, and the widespread use of marijuana, many permanent residents will be placed into deportation-removal proceedings as the result of mistakes made, often many years in their past.

It is important to have an experienced criminal-immigration attorney defending these types of cases. Many immigration attorneys know how to prepare family based petitions, but lack trial experience. They feel nervous in the courtroom and are unfamiliar with how to try a case.  Others may have experience in Immigration Court, but have no foundation in criminal law and so do not understand the complex interplay between criminal and immigration law. Only an advocate experienced in both criminal and immigration law can guide you through these troubled waters. The Terezakis Law Firm has this expertise. Last week we won 2 trials in 3 days and brought our clients home.  Most importantly, we convinced the government to accept the Judges’ decisions as final, and so our clients were spared the expense and uncertainty of an appeal.

In the first case, our client stumbled into a major narcotics conspiracy after doing a friend “a favor” by buying him some cocaine.  He was one of 20 persons named in a  36 count indictment, which appeared to charge each defendant as a “Major Narcotics Trafficker”.  Careful review of the 100 paragraphs which described the criminal conduct in the single count which named our client, revealed he was never charged as a “Major Trafficker”, and  that only 2 paragraphs even referenced him: one involved his call to arrange the purchase, and the other, the purchase.   Had we not clarified the minor and tangential involvement of our client at the outset of the hearing,  it is unlikely the Judge would have ever considered the favorable evidence: our client’s history of working on the books and paying his taxes; his close and supportive relationship with his U.S. citizen children; his ties to his community; his modest lifestyle; his good moral character and his genuine remorse for his misconduct.

Our second client, also a permanent resident, was nearly rendered ineligible for cancellation of removal after his prior attorney negotiated a plea to an offense which would have been classified as a drug trafficking aggravated felony. Our client sought our counsel after pleading guilty to possession of a controlled substance, because he feared he might be deported.  He had pleaded guilty to possessing cocaine, but was advised the specific subdivision involved possession with intent to sell – which would be considered a drug trafficking aggravated felony. Our review of his plea minutes established he never admitted any intent to sell, and so we were able to vacate his guilty plea.  Our client ultimately re-pleaded to simple possession, as a felony, which preserved his eligibility for cancellation of removal.

By the time of his deportation hearing, 10 years had passed since his misconduct, and he never again violated the law.  We submitted proof of his successful completion of a drug treatment program shortly after his arrest, as well as the results of six months of recent drug testing which confirmed he had indeed stopped using any drugs.  We also documented his severe disability, due to a work related accident, with medical records and post-operative reports. In the end, his extensive family ties, the evidence of his rehabilitation, the severity of his disability, and his continued need for medical treatment in the U.S., tipped the balance and convinced the Judge and government attorney he deserved a grant of cancellation of removal. If his initial plea had not been vacated, however, he certainly would have been deported.

In each case, our client accepted responsibility for his actions; he pleaded guilty and served his sentence. Most importantly, we were able to demonstrate that on balance, our client deserved a second chance. At the Terezakis Law Firm,  our experience in criminal-immigration law, and in trying these hardest of cases, ensures our clients have the best possible chance of being granted a second chance to remain in the United States. After all, what is more American than a second chance for someone who deserves it?

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.

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

Criminal Immigration Update!!

Conviction for Endangering the Welfare of a Child Triggers

Deportability-Removability for Lawful Permanent Residents

 

Yesterday, February 9th, 2016, the Board of Immigration Appeals issued a precedent decision in the Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016), holding that a conviction for endangering the welfare of a child, pursuant to N.Y.S. P.L. §260.10(1), is categorically, a conviction for a “crime of child abuse, child neglect or child abandonment” as that term is used at Immigration and Nationality Act (“INA”) §237(a)(2)(E)(i). Under that immigration statute, a conviction for a “crime of child abuse, child neglect or child abandonment” renders a lawful permanent resident subject to deportation. Under certain circumstances, a lawful permanent resident who has committed a deportable offense, and who satisfies other conditions, may be eligible for discretionary relief from deportation in the form of cancellation of removal. Continue reading

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

Conviction Vacated

Our client, a Salvadoran male, had been living in the U.S. since 1992.  In 2001 he qualified for, and received, a grant of Temporary Protected Status (“T.P.S.”).  In 2009, he was arrested for a serious felony.  His  defense attorney had him pleadguilty to a lesser felony, and obtained a sentence of probation, but failed to warn his client that by pleading guilty  to a felony, he would lose his T.P.S..   His defense attorney wasn’t familiar with immigration law: he had no idea a conviction for a felony would automatically cost his client his T.P.S.. Continue reading