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).

 

More Notable Wins for the Terezakis Law Firm for July 2017

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.

“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.

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.