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.
Translation:
“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.
In Spanish, there is an expression: “Entre la espada y la pared,” which means: “Caught between the sword and the wall.” Recently we won a grant of asylum for a young man who witnessed members of the MS-13 gang as they chased down a Salvadoran military officer, moments before he was murdered. The gang members later threatened our client to remain silent.
A Salvadoran police officer, assigned to investigate the case, told our client’s friend, a neighbor who had actually witnessed the murder, not to say anything about what he had seen, to anyone. A few days later his friend was killed.
Members of the Salvadoran military stopped our client in public, beat him and accused him of willfully refusing to identify the gang members who killed the officer. They interrogated him, literally, with a cocked pistol at his temple. The soldiers believed he was helping MS-13 by not identifying the killers and threatened to kill him.
After our client was seen being questioned by the military, he learned MS-13 gang members had “green lighted” him to be killed by any gang member.
Many in the Salvadoran police are corrupt and have a history or working with MS-13. The military threatened to kill our client, and MS-13 was also looking to kill him. He fled to the U.S. for his life, and for safety. After hearing his testimony and reviewing the evidence which corroborated his claims, an Immigration Judge granted him asylum. While the Attorney General’s recent decision in Matter of A-B- will make it harder to win asylum in cases based upon fear of persecution by the MS-13 gang, deemed “private actors”, the persecution by the military distinguished our client’s claim. Let’s hope our country continues its proud tradition of lifting up its “lamp beside the golden door” and of offering refuge to those who flee persecution.
“Q. And toddlers?”
“A. And toddlers.”
Sometimes our government goes too far, and the fervor of the zealots leads them to engage in criminal conduct; to violate accepted, bedrock, principles of decency and international law. When Central American families come to our country seeking asylum because they are fleeing persecution, rape and murder at the hands of vicious gangs, such as MS-13, it is unlawful and immoral for our government to separate young children from their parents, and hold them in cells, like criminals. Our government is doing this today, in our names, and it is wrong. Organize; speak out; and commit yourself to prevent this continued, intentional, infliction of severe trauma on innocent, desperate, children.
From The New York Times:
Taking Migrant Children From Parents Is Illegal, U.N. Tells U.S.
The Trump administration treats all undocumented border crossing as a crime, jailing adults and splitting families. The U.N. says that violates the children’s rights.
https://www.nytimes.com/2018/06/05/world/americas/us-un-migrant-children-families.html
El perdón provisional fue puesto en regulación en el 2013 y el programa fue extendido para cubrir no solo a los familiares de estadounidenses sino también para familiares de residentes permanentes en Agosto del 2016. Las personas que entran a los Estados Unidos indocumentados, necesitan obtener un perdon antes de poder recibir su recidencia. Antes, estas personas tenian que salir del pais y aplicar para un perdon desde su pais natal, esto era un proceso largo y duraba muchos años y seperaba a las familias. Con el programa del perdon provisional, un inmigrante indocumentado que quiere aplicar para hacerse residente; quien entro a los Estados Unidos sin inspeccion y que tiene un familiar cercano que es estadounidenses o residentes permanente puede pedir este perdon mientras esta en los Estados Unidos. Al principio, el programa solamente estaba disponible para los familiares inmediatos de estadounidenses. Pero, ahora tambien incluye a familiares de residentes permanentes. El programa está diseñado para evitar el riesgo de que el individuo viaje a su entrevista en el consulado de su país natal y que no pueda regresar a los Estados Unidos. Ahora es posible que miles de personas puedan beneficiarse de este programa – especialmente aquellas personas que ahora se encuentran con la realidad de que su estatus de protección temporaria (TPS) será eliminada.
TODO APLICANTE PARA UN PERDON PROVISIONAL DEBE DE DEMOSTRAR QUE TIENE UN FAMILIAR CALIFICANTE (“Qualifying Relative”), POR EJEMPLO:
(Desafortunadamente, los hijos ciudadanos no pueden calificar)
Y ADEMAS, DEBE DE DEMOSTRAR QUE EL FAMILIAR CALIFICANTE TENDRA UN SUFRIMIENTO EXTREMEMO SI EL APLICANTE NO PUEDE PERMANECER EN LOS E.E.U.U. MIENTRAS ESPERA SU PROCESO CONSULAR. (Esto incluye mucha documentación)
Aunque este programa ha estado en efecto desde el 2013, todavía existen muchas personas que no saben que pueden utilizarlo para poder obtener su residencia permanente. Si usted tiene alguna pregunta sobre este programa puede llamar a nuestra oficina para hacer una cita y le podemos dar más detalles.
Las personas que van a perder su estatus protegido no pueden perder la esperanza – tienen que investigar las opciones para legalizarse. Y mas importante, no usar “notarios” ó supuestos “consultantes” – tienen que usar abogados con experiencia, para que nos los vayan a defraudar.
La información anterior incluye solamente los detalles básicos – cada caso es diferente y usted debe de hablar con un abogado con experiencia para poder asesorarse si usted puede calificar para este programa y también para estarse seguro de llenar todas las aplicaciones conectadas con un proceso consular y un perdón provisional correctamente. Llámenos para más información
Temporary Protected Status for Hondurans will not be renewed! Protected status will end in 18 months. If you or someone you know will be losing their TPS, contact us to schedule a consultation to see what options may be available.
https://www.cnn.com/2018/05/04/politics/immigration-tps-honduras/index.html
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).