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.

Asylum Win for Honduran Youth Persecuted by MS-13 Gang

People in the U.S. have heard that Central American gangs, like MS-13 and the 18th Street gang, are seizing control of the poorer neighborhoods in their countries. They terrorize the residents, forcing them to make regular extortion payments, which they call “rent”. They rob and kill; they traffic in drugs and rape; they forcibly recruit young people into their gang – all with virtual impunity. Those who do not comply, or seek help from the police, are routinely subjected to vicious beatings, and are often killed.

Our client, then a 15 year old Honduran, refused to join the MS-13 gang, despite threats of retaliation. One day while walking home from school, he could not pay the MS-13 members the money demanded of him, so they beat him to the ground, and began kicking him in the ribs and face. He lay on the ground, looking up as a gang member pointed a pistol at his face, and then heard it fire… He woke up in a hospital: he’d been shot twice, at point blank range – in the neck and through his collarbone. Months later, after recovering, he fled to the safety of the U.S..

Earlier this week, at the conclusion of our trial, a courageous Immigration Judge granted our client asylum. For many young Central Americans, asylum cases rooted in gang persecution are almost impossible to win – but if you present a compelling, well documented case, you show your client’s humanity, and help the Judge feel the terror he experienced looking into the barrel of that pistol – you can beat the odds. As an attorney, when you turn the cogs and work the levers on the machine so that it actually dispenses justice, and provides safety for the vulnerable – it is a great feeling.

Winning is a Team Effort!

As a practicing lawyer for 30 years, I have learned that winning at trial or putting together a winning waiver application takes more than expertise in the law, and compelling, well-reasoned arguments: it takes a committed and knowledgeable support staff. While the lawyer may craft the arguments, it is our experienced support staff that lays the foundation for our victories. Our paralegals and clerks follow up with family, friends, physicians and expert witnesses; they obtain the medical records and psychological evaluations we rely upon; the photographs and the documentary evidence – and then they put it all together in a well-organized submission. In this way, Immigration Judges or U.S.C.IS. adjudicators are often moved to want to help our clients after having reviewed our submissions – even before having heard testimony. After many hearings or trials, I have received complements from Judges and U.S.C.I.S. adjudicators about how well documented and organized our submissions were – and this is testimony to the experience and dedication of our support staff. When litigating, a team effort is the key to success.

Notable Decisions: April 2017

Deportation Order Vacated & New Proceedings Ordered After Winning Appeal before the Board of Immigration Appeals

Our client was ordered deported-removed based upon his convictions charged by I.C.E. as involving moral turpitude. Since they were committed within several years of his admission, he was ineligible for cancellation of removal. His prior attorney, although promising to file the paperwork necessary to apply to readjust his status as a lawful permanent resident, failed to do so, and the Immigration Judge ordered his deportation.
We were retained for his appeal, and complied with the requirements of Matter of Lozada, in order to raise a claim of ineffective assistance by our client’s trial counsel. We also argued the Immigration Judge’s decision, sustaining the criminal grounds of deportability-removability, was erroneous because she failed to utilize a recent, controlling, B.I.A. precedent decision for analyzing crimes involving moral turpitude, including Matter of Silva Trevino III. The B.I.A. reversed our client’s deportation order, and sent his case back to the Judge for new proceedings. She must now reconsider her initial, threshold, determination of whether our client’s convictions actually render him deportable. Even if she makes such a finding, we have already filed the paperwork necessary for him to apply to readjust his status, based upon his marriage to a U.S. citizen, in conjunction with a waiver of inadmissibility. Clear, well researched, legal argument, combined with sympathetic facts – our client’s wife and children ended up in a homeless shelter while represented by prior counsel – can and will win the day!

Grant of Cancellation of Removal for Non-Permanent Resident: Documenting “Exceptional and Extremely Unusual Hardship”, Rehabilitation for Criminal Convictions, & Favorable Exercise of Discretion Warranted

Among the most difficult burdens to carry in a deportation-removal proceeding, is showing that a client’s permanent resident, or U.S. citizen, qualifying relative would suffer: “exceptional and extremely unusual hardship” if the client is deported. The standard was carefully constructed to limit this relief to a handful of cases nationally every year. Our client’s daughter had suffered from seizures, but it was unclear whether these were only febrile seizures, attributable to her young age, since she had not had any for years. In addition to obtaining hospital records documenting her seizure history, and the records of her speech therapy, we also assisted her parents in obtaining neurological evaluations which revealed speech processing disabilities and previously undiagnosed learning disabilities. Independent psychological examinations and reports reinforced the diagnosis, as did testimony from the child’s teachers. We also showed the devastating impact on the young girl which her father’s deportation would have.

After clearing the hurdle of demonstrating “exceptional and extremely unusual hardship”, we also needed to convince the Judge our client deserved a favorable exercise of discretion. Through testimony we established our client was truly remorseful for his prior criminal convictions; had genuinely rehabilitated himself; gained insight into his prior misconduct; that he had a solid work ethic and that he deserved a favorable exercise of discretion. By winning his case, we not only avoided his deportation, but helped him to gain status as a lawful permanent resident.

Motion to Reopen Denial of Temporary Protected Status Granted

Our client, a Salvadoran national, enjoyed a grant of temporary protected status following the 2001 earthquake in that country. For years he enjoyed the right to remain lawfully in this country, and was granted employment authorizations. Unfortunately, he was eventually denied his T.P.S. renewal, due to his “criminal convictions”. Years later, fearing detention and deportation by I.C.E., he sought our assistance. Our review of his criminal history revealed the U.S.C.I.S. adjudicator had mistakenly read our client’s record, and that our client was in fact eligible for protected status. Our motion to reopen was granted, our client has been reissued his employment authorization card, and no longer fears being deported.

Federal Court Hearing Granted: Motion to Vacate Aggravated Felony Conviction

Our client, a lawful permanent resident, was found removable for having been convicted of an “alien smuggling” aggravated felony. He maintained his prior criminal defense attorney had told him his guilty plea would not trigger his deportation. We obtained our client’s release from custody following a Lora bond hearing, and have worked with an experienced federal criminal defense attorney in bringing a motion to vacate the conviction: we provided criminal-immigration expertise by writing sections of the motion dealing with the aggravated felony, and ineffective assistance of counsel, arguments. Our client was granted a hearing on his motion to vacate his conviction, when such motions are simply, routinely, denied. The hearing was commenced, testimony taken, and we are still litigating this matter.

Three, I.N.A. §601(a), Provisional Waivers of Inadmissibility Granted

A non-citizen who enters the U.S. without inspection, or who overstays a lawful admission after his visa has expired, and who remains in the U.S. for a year or longer in that undocumented status, is rendered inadmissible to the U.S. for a ten (10) year period. Even if the person has a family member who can petition for him to gain status as a lawful permanent resident, historically, he or she must first leave the U.S., and then if they are eligible, apply for an I.N.A. §601 waiver of their inadmissibility, as part of the consular processing of their petition for an immigrant visa, or “green card”. This process divides families by requiring the non-citizen to apply from outside the U.S. – a process that often takes years.

President Obama acted to ease this suffering by enabling certain non-citizens to apply for an I.N.A. § 601(a) provisional waiver of inadmissibility from within the United States. The person must demonstrate the denial of a provisional waiver will cause their lawful permanent resident, or U.S. citizen, parent or spouse, to suffer extreme hardship, which is a difficult standard to meet.

This past month, two of our clients, for whom we previously obtained § 601(a) provisional waivers, just received their green cards after successfully completing their Consular interview in their native country; and a third client just had his provisional waiver approved. We are consistently successful with these cases because we carefully document the financial, psychological, and emotional hardship our clients’ family members will suffer if denied a waiver. We carefully collect, index and submit: medical records and reports; psychological evaluations; financial and tax records; employment records; and our clients’ children’s educational and special educational records. These records are in turn supported by the carefully prepared affidavits of our clients, their family and friends. We ensure the applications we submit are easy to read, well organized, and present the hardship in a compelling manner. While time consuming, we believe it is important to build a stronger bridge to ensure our clients get across safely.

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!

Motion to Reopen In Absentia Deportation Order Granted: Undiagnosed Mental Illness

Negotiating the intricacies of the deportation-removal process is extremely difficult for most immigrants, however, undiagnosed mental illness can make it virtually impossible. Our client, a Salvadoran national, was taken into custody shortly after entering the U.S. without inspection at the Texas-Mexico border. He was placed into custody, and promptly exhibited classic symptoms of paranoia and schizophrenia, including hallucinations and fearful behavior. After being released from custody, his mental condition continued to deteriorate; he missed his hearing in the Immigration Court and was ordered deported-removed. After years of suffering, and several hospitalizations, his condition was diagnosed and he was stabilized through medication.

We obtained, summarized, and presented his medical records demonstrating that his mental illness prevented him from appearing for his removal hearing. We convinced D.H.S. to consent to our motion to reopen his deportation order. On November 22, 2016, an Immigration Judge granted our motion to reopen the deportation order, and also terminated the proceedings against our client. For the first time in 18 years, our client is free of the fear of deportation and we are in the process of legalizing his immigration status. Meticulous preparation, including obtaining and reviewing the records of our client’s mental health treatment corroborated our defense of mental incapacity, and proved essential to winning this motion to reopen.

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

AILA Annual Conference on Immigration Law 2016

TRAINING NEW ATTORNEYS IN IMMIGRATION COURT PROCEDURES AT THE AMERICAN IMMIGRATION LAWYERS’ 2016 CONFERENCE

With over 14,000 members, the American Immigration Lawyers Association is by far the largest bar association of immigration lawyers in the country. Every year at their national conference, many thousands of dedicated immigration practitioners gather to review the most recent developments in immigration law, and to discuss cutting edge legal theories relating to defending clients who are facing deportation-removal from the United States. This Friday, June 23rd, 2016, at AILA’s annual conference, held at the Cosmopolitan Hotel in Las Vegas, I will be part of a panel teaching newer practitioners the best practices and procedures for defending non-citizens facing deportation in our nation’s Immigration Courts. When the outcome of a hearing determines the course of someone’s life, it is critical defense counsel be familiar with required courtroom procedures and best practices for organizing and presenting evidence to support the client’s claims for relief! I am looking forward to using my 25 years of litigation experience to help train the next generation of immigration advocates.

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