After a trial before an Immigration Judge this week, our client, a Salvadoran national, was granted political asylum! Despite the Trump Administration’s efforts to gut the protections afforded to asylum seekers, there are still courageous Immigration Judges who follow the law. Not only will he never again be persecuted, but in a year, he will be able to apply to become a lawful permanent resident.
The 2nd Circuit Federal Court of Appeals has ruled that immigrants who missed the 30 day deadline for filing their notice of appeal from an Immigration Judge’s order of deportation, may be able to have that deadline equitably tolled, and to have their appeal heard on the merits, rather than have it dismissed. This decision offers hope to immigrants who have been ordered deported; who have otherwise meritorious appeals; and who missed the filing deadline despite their best efforts under the circumstances.
The Court’s decision in Attipoe v. Barr, involved an immigrant whose efforts to appeal his deportation order were frustrated by the Judge’s failure to provide him proper notice of his right to appeal; by the fact his detention by ICE limited his efforts to retain an attorney; and by his attorney’s failure to file his notice of appeal on time. The Court reversed the Board of Immigration Appeals’ determination that missing the 30 day filing deadline by even one day meant the appeal must be dismissed – even if the non-citizen had a winning legal argument, and even if the late filing was not the immigrant’s fault.
In Attipoe, the Court rejected the BIA’s use of such a strict deadline to dismiss an otherwise meritorious appeal. The Court directed the Board to formulate standards to determine when a late filed appeal should be subject to “equitable tolling”. The Court’s decision in Attipoe offers new hope for immigrants who diligently tried to appeal of their deportation order, but whose appeals were dismissed due to a missed deadline, and through no fault of their own.
If you, a family member, or a friend have been deprived of the chance to appeal a deportation order due to a missed filing deadline; and if the order was entered by a Judge sitting in an Immigration Court located in New York or Connecticut; then the Second Circuit’s decision in Attipoe may provide a way for that appeal to be heard, even if the filing deadline was missed, provided you can show the non-citizen act diligently in pursuing his rights during the 30 day period for filing the appeal, and in the period after the deadline and until actually filing a motion to accept a late filed notice of appeal. If you or someone you know has had their appeal dismissed through no fault of their own, contact our office to schedule a consultation so we may determine whether the protections of the Attipoe decision apply to you.
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?
Yesterday, one of my clients stopped by my office and presented me with a framed award she had made for me herself! When I met her, she was being held in detention and faced imminent deportation. First we were able to vacate her in absentia removal order; next we applied for an immigrant visa on her behalf through her U.S. citizen husband; then we had her deportation proceedings closed so we could apply for a provisional, 601(A), waiver of her unlawful presence in the U.S., required before she could become a lawful permanent resident. After showing her husband would suffer the requisite hardship, she was granted the waiver, and then we were able to terminate her deportation proceedings. We prepared her for her consular interview, and then she made the leap of faith and returned to El Salvador where, at the U.S. Embassy, she passed the final stage of the proceedings and was granted status as a lawful permanent resident. She was able to return to this country to live with her husband and children as a permanent resident. After many years of uncertainty and fear, she finally has peace of mind! Yesterday she stopped by our office, and she personally thanked me and the members of our office staff who made this possible for her. She presented me with this framed award she had made for me – words from her heart – the most meaningful award that I have ever received.
“Dear George A. Terezakis, I extend these words of gratitude for the excellent work, thanks to God, and to you my esteemed attorney George, who with the vocation, endeavor and the efforts made every day….in three years, you were able to stop the deportation order I had pending …..and you made my dream a reality: to remain with my family in the United States, and to achieve becoming a permanent resident of the United States, on September 14th, 2018. They say miracles can happen, and yes, they do! Without you we would not have succeeded.
My family and I will always be very grateful. May God bless you, your family, and your excellent staff who always treated me with great respect and always gave me the best answers to my concerns.
With great affection:
Elsy and Nelson”
Hope, effort and knowledge can change people’s lives. Our client’s husband came to us, desperate, several years ago. His wife had been picked up by ICE based upon an old deportation order. She faced imminent deportation. First we found defects in the Notice to Appear and had the old deportation order reopened. Next we obtained bond for her and brought her home to her family. We convinced DHS it was appropriate to administratively close her deportation-removal case, so she could apply for a 601A provisional waiver, which was needed before she could become a lawful permanent resident. We carefully documented the extreme hardship her husband and family would suffer if she were deported, and so USCIS granted her a provisional 601A waiver. Finally, we guided her through her Consular interview. Yesterday, after returning from her interview in El Salvador, she was lawfully admitted to the U.S. as a permanent resident, and called to thank us.
Another client of ours, despite his long marriage to a U.S. citizen, had been afraid to apply to become a legal resident due to several previous arrests and a misdemeanor conviction. He had been told his case was hopeless. We obtained medical reports documenting his wife’s serious medical conditions, and the extreme financial hardship she would suffer if her husband was denied a waiver. Our memorandum of law, submitted with his visa application, demonstrated that although he had been convicted of a single crime involving moral turpitude, he qualified for the “petty offense” exception to the general rule rendering individuals with such convictions inadmissible to the U.S.. Earlier this week, he too passed his Consular interview in Honduras. He called us after he returned to thank us and to tell us how much it meant for him to finally become a legal resident.
We keep up with the constant changes to our country’s complex immigration laws. We regularly attend Continuing Legal Education courses taught by the best attorneys in our field, often traveling across the country to do so. We are also called upon to teach these courses. Whether by attending a lecture, or by preparing to present a lecture, we gain a deeper understanding of, and greater insight into, our immigration laws. Our knowledge, expertise and experience become the sword we use to defend our clients, enabling us to continue to win even the most difficult cases. Through hope, effort and knowledge, our team has brought many clients back from the brink of deportation, back to their families. It’s the work we do, and it’s our passion.
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.
 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).
DHS announced on Monday that TPS for El Salvador will be terminated. This decision affects some 200,000 Salvadorans. If you or someone you know is impacted by this terrible announcement from DHS, please call us to make an appointment with one of our attorneys so we can explore any options for legalization. Our experienced attorneys are fluent in Spanish and we are here to help! Here are some other things to consider:
- The termination of El Salvador’s TPS will not be effective until September 9, 2019.
- Salvadorans with TPS can keep their status until September 9, 2019, but they must re-register. If you have any questions, call us we can help!
- Some Salvadorans with TPS may have other options for remaining in the United States. You should consult a reputable immigration attorney to explore these options.
SHOWING INEFFECTIVE ASSISTANCE OF COUNSEL VACATES DEPORTATION ORDER….
Clients are entitled to trust that their attorney will provide them effective and zealous representation in their deportation proceedings, because the outcome of those proceedings will determine the course of their life, and affect their entire family. Our clients’ children came to us after their father surrendered himself after learning he had been ordered deported in his absence. For two years, the attorney he retained had not moved to change venue in his case from the Immigration Court in Texas to the Immigration Court in New York where he was living. When he called his attorney several days before the hearing date, he was assured by the paralegal his case had been adjourned, and he would receive a new hearing date – that was not true: he was ordered deported and taken into custody.
Our client faced imminent deportation – within a week we had reviewed the file; obtained the requisite supporting documents; filed the required bar complaint against prior counsel; and prepared and submitted our motion to vacate our client’s deportation-removal order. We learned our client’s name was on the list for the next day’s flight. We obtained a stay of removal which stopped his deportation – he was the only one on the list not deported. Ultimately the I.J. found he had indeed been the victim of ineffective assistance, and he reopened his deportation order. He will now have his asylum claim determined on the merits.
EXPEDITED GRANT OF I-601 WAIVER
Our client, educated at one of America’s foremost University’s, returned to Pakistan to marry her childhood sweetheart. During the years she lived there following her marriage, she spoke out frequently and publicly against that country’s mistreatment of women and its rigid barriers preventing their full participation in society. As the result of her advocacy on behalf of women, she began receiving anonymous death threats, and then she and her family were fired upon while in their car. As a result of these threats, and her son’s medical condition, we were able to have her request for a waiver of inadmissibility for her husband expedited, and granted. She and her family will soon be safe in the U.S. and she will be able to have her young children – U.S. citizens – grow up with the freedom, security and opportunities available to them in the U.S.
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.
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.