Deportation

My fiancee was arrested 2 weeks with a final deportation order from the BIA. He is currently being detained at a local county INS detention center. Initially we appealed the IJ's order of deportation, appeal denied. My boyfriend is being deported only on a 237 (a)(2)(A)(i) charge. Which to my knowledge is being convicted of an 'aggravated felony' in which a sentence of a year or longer is imposed. He plead guilty under the ill advice of his court appointed attorney and District Court judge, who never disclosed the potential ramifications it could cause with immigration, automatic deportation proceedings. He was sentenced to 6 months, 59 days were served. The balance was suspended. He was placed on 1 year probation, which was completed successfully. He has been in the US since 1989, legal through a previous marriage in 1994 (conditions lifted in 1996). He has a US citizen child to which he pays $500/month in child support. With the exception of the conviction, he has always been a law abiding resident, working for a Fortune 500 company for the past 1.5 years. Does the clause in 237 not relate to persons who plead guilty? Are there any loop holes in the law that I could possibly be missing? Could a 'Writ of Corum Nobis' have any effect in this case? Could I have this taken to Federal Court. I have seeked the advice of several Immigration Lawyers, all of them have told me that nothing can be done. I believe this advice to be wrong.

The crime in which he plead guilty to was Malicious Destruction of Property over $250.00 (a car in which he owned to the time).

Thanks in advance for your advice and comments.

Andrea

My fiancee was arrested 2 weeks with a final deportation order from the BIA. He is currently being detained at a local county INS detention center. Initially we appealed the IJ's order of deportation, appeal denied. My boyfriend is being deported only on a 237 (a)(2)(A)(i) charge. Which to my knowledge is being convicted of an 'aggravated felony' in which a sentence of a year or longer is imposed. He plead guilty under the ill advice of his court appointed attorney and District Court judge, who never disclosed the potential ramifications it could cause with immigration, automatic deportation proceedings. He was sentenced to 6 months, 59 days were served. The balance was suspended. He was placed on 1 year probation, which was completed successfully. He has been in the US since 1989, legal through a previous marriage in 1994 (conditions lifted in 1996). He has a US citizen child to which he pays $500/month in child support. With the exception of the conviction, he has always been a law abiding resident, working for a Fortune 500 company for the past 1.5 years. Does the clause in 237 not relate to persons who plead guilty? Are there any loop holes in the law that I could possibly be missing? Could a 'Writ of Corum Nobis' have any effect in this case? Could I have this taken to Federal Court. I have seeked the advice of several Immigration Lawyers, all of them have told me that nothing can be done. I believe this advice to be wrong.

The crime in which he plead guilty to was Malicious Destruction of Property over $250.00 (a car in which he owned to the time).

Thanks in advance for your advice and comments.

Andrea

I would need to know more info(date of conviction, reason why case was denied etc.) to determine if there is anything that could be done.
Contact

tdixon@lawyer.com

td, are you a lawyer ??? I just need some advice...
Thank you..

I don't see how one can be charged to committing a malicious crime to one's own property (a car, as you stated!) There must be some other issues to be incarcarated to 6 months...

Unless, money for a good attorney is available andor the crime took place before 1996, there is little that can be done to the final order of BIA. Good luck!

Write to your congressman. I have done this in serious situations, my father did it as an army serviceman years ago, and believe me, you get quick responses. Send it registered mail so that official has to sign for it. This always gets their attention. Be as brief as possible, and very honest, and if you don't hear back within three days, start calling their office(s). This really can make a huge difference.

237 (a)(2)(A)(i) describes crime involving moral turpitude rather than felony. You said he's sentenced to 6 months but what is the maximum possible sentence of the crime and when was the crime committed? Depending on that, he might be able to apply for AOS and try to get through but it's a really really long shot if he's already on a final order of deportation.

Yo-

He is already a Legal Permanent Resident. Could a AOS apply at this point?

Thanks-

is he under active removal process ??? if it's the case than you cannot apply for AOS...
IF the judge has not order him to leave the country yet, yes you can still apply for AOS..
Good luck

Immigration courts generally do NOT consider the following crimes to involve moral turpitude:

~ involuntary manslaughter
~ carrying a concealed weapon
~ libel
~ mailing an obscene letter
~ riot
~ simple assault and battery
~ attempted suicide
~ vagrancy
~ possession of a sawed-off shotgun
~ maintaining a nuisance
~ breaking and entering
~ failing to pay ship fare
~ loan sharking
~ unlawful entry
~ possession of stolen property
~ damaging private property
~ joyriding (when permanent taking is not involved)
~ failing to report for induction
~ desertion
~ false statements not amounting to perjury
~ violations of regulatory laws such as gambling or drunk driving
~ escaping from prison.

The concept of moral turpitude is an ever-evolving concept. Unfortunately, it seems to be evolving in the direction of making more and more offenses equivalent to moral turpitude offenses.

Immigration courts generally *consider* the following crimes to involve moral turpitude:

~ murder
~ voluntary manslaughter
~ manslaughter involving recklessness
~ kidnapping
~ arson
~ blackmail
~ mayhem
~ attempted murder
~ assault with intent to rob or kill or commit abortion or rape
~ rape (both common law and statutory
~ abandonment of a minor child (if the offense entails willfulness of the parent and destitution of the child)
~ assault with a deadly weapon
~ adultery
~ larceny (both grand and petty)
~ receiving stolen goods with knowledge
~ robbery
~ transporting stolen property
~ malicious destruction of property
~ false pretenses
~ bigamy
~ prostitution
~ lewdness
~ gross indecency
~ incest (if resulting from an improper sexual relationship, but not when it emerges solely from a marital status prohibited by law)
~ forgery
~ knowingly harboring a fugitive from justice
~ wilfully or knowingly harboring or smuggling an illegal alien
~ interfering with a law enforcement officer through the use of a deadly weapon
~ burglary
~ extortion
~ embezzlement
~ counterfeiting
~ perjury
~ willful tax evasion
~ bribery
~ using mails to defraud
~ theft
~ any crime involving fraud.

An alien convicted of a crime involving moral turpitude committed within 5 years after the date of the alien's admission (or applying for admission) to the United States and for which a sentence of 1 year or longer may be imposed is deportable. [(INA) Section 237(a)(2)(A)(i) (1996), 8 U.S.C. S. 1227(a)(2)(A)(i)]

- An alien who at any time after admission to the United States is convicted of two crimes of moral turpitude not arising out of a single scheme of criminal misconduct is deportable. [INA Section 237(a)(2)(A)(ii), 8 U.S.C. S 1227(a)(2)(A)(ii)]

- An alien convicted of, or who admits having committed, a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime) is inadmissible to the United States. [INA ' 212(a)(2)(A)(i)(I), 8 U.S.C. S. 1182(a)(2)(A)(i)(I)] However, this bar of admissibility does not apply if the alien committed only one crime involving moral turpitude and
(1) the crime was committed when the alien was under 18 and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(2) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). [INA Section 212(a)(2)(A)(ii), 8 U.S.C. S. 1182(a)(2)(A)(ii)]

An alien who receives deferred adjudication is usually considered to have a conviction for immigration purposes. However, a special rule exists for crimes involving moral turpitude. An alien who is discharged and released from all disabilities of his conviction following completion of the terms of probation is considered to have had his conviction expunged. Matter of Gutnick, 13 I. & N. Dec. 672, 672- 73 (BIA 1971). An alien who has had a conviction for a crime involving moral turpitude expunged may not be deported based on having been convicted of a crime of moral turpitude. Matter of Ozkok, 19 I. & N. Dec. 546, 552 (BIA 1988).

It seems however that "Malicious destruction of property" can be a felony:

Charge Elements: The elements of this offense are:

1. The defendant injured or destroyed, or attempted to injure or destroy, property, that is a door, house, garage, etc.;
2. The property was not the defendant's property;
3. The defendant acted voluntarily and on purpose, not by mistake or accident;
4. The defendant acted either with the intent to injure or destroy the property or with a conscious disregard of known and substantial risks of harm that were likely to result to the property from his or her actions;
5. The value of the injured property was $200 or over; and
6. The defendant acted without mitigation.


or a midemeanor:

Charge Elements: The elements of this offense are:

1. The defendant injured or destroyed, or attempted to injure or destroy, property, that is a door, house, garage, etc.;
2. The property was not the defendant's property;
3. The defendant acted voluntarily and on purpose, not by mistake or accident;
4. The defendant acted either with the intent to injure or destroy the property or with a conscious disregard of known and substantial risks of harm that were likely to result to the property from his or her actions;
5. The value of the injured property was under $200; and
6. The defendant acted without mitigation.

Now if the property he has damaged was *his*, it is impossible that he'd get this charge.

And yes, this offense may be an "aggravated felony" as well, not just a "crime involving moral turpitude", given the fact that may be considered as a "crime of violence".

Matter of Ozkok, 19 I. & N. Dec. 546, 552 (BIA 1988). has been since long overruled by Matter of
In re Mauro ROLDAN-Santayo, (Interim Dec. #3377,
March 3th, 1999)....

Being placed on court supervision (deferred judgement) does count as a conviction for INS purposes. The only chance you may get is for *drug convictions* according to these guidelines:

-- Counsel can agree with prosecution and court to defer one or more of the statutory elements required to constitute a "conviction" under the new immigration-law definition:


a) "Deferred prosecution" or "deferred plea" involves an agreement to postpone the entry of a guilty or not contest plea in the criminal case for some length of time, for example, six months or a year, so that the plea is not entered until this time has passed. If the defendant has no new arrests, satisfactorily completes drug counseling, and meets whatever other conditions are stated as part of the agreement, then the charges will be dismissed at the end of the deferral period. This arrangement does not constitute a "conviction" under the new definition, since no plea of guilty or no contest has been entered at any point, the noncitizen has admitted no facts, and no one has found him or her guilty of any offense.


b) "Deferred verdict" involves an agreement in which the defendant waives his or her right to confront witnesses and right to a jury trial, and agrees to submit the case to a court trial on the basis of certain papers such as the police report or preliminary hearing transcript. Under this agreement, the court would defer rendering a verdict until some length of time has passed, for example, six months or a year. If the defendant meets whatever conditions are stated in the agreement, suffers no new arrests, satisfactorily attends drug counseling, and the like, then the charges will be dismissed at the end of the deferral period. Again, this arrangement does not meet the new statutory definition of "conviction" since no one has found the noncitizen guilty, no plea of guilty or no contest has been entered at any point, and the defendant has not admitted any facts, much less sufficient facts to warrant a finding of guilty.


c) "Deferred sentence" involves entry of a plea of guilty or no contest, but deferral of sentence. In order to constitute a conviction, the new definition requires a plea of guilty or no contest, or a verdict of guilty, and also requires that "the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed." 4 If the court defers making any such order imposing punishment or restraint on liberty, until after an agreed deferral period of time has passed, and then dismisses all charges, without ever imposing punishment or restraint, no "conviction" would have occurred at any time under the new definition. Note that any conditions of this arrangement that involve any "restraint on the alien's liberty" could not be imposed by court order; they may be included in a private agreement between prosecution and defense, however, as long as the court does not order them. When they have been satisfied, prosecution and defense could jointly move the court to dismiss all charges.


3. Counsel can attempt to construct a disposition of the case that fits within a federal definition that is not considered a conviction.


a) For example, if the state defendant obtains an "expungement" of the state conviction for successful completion of probation, under circumstances analogous to the Federal First Offender Act, 5 there is an Equal Protection argument that the expunged state conviction should receive the same treatment (Congress does not consider it a conviction for any purpose) that it would have received if a federal expungement had been granted in federal court. 6 Since this is a constitutional argument, Congress is not free to alter this result by legislation, so the federal courts should construe the new definition of conviction to harmonize with this result, give effect to both statutes, and consider that the state analogue to the federal expungement does not constitute a conviction under the new definition.


b) Counsel can attempt to construct a disposition that could only be a juvenile disposition, if prosecuted in federal court. 7 The same Equal Protection argument can then be effective to force the INS to consider this arrangement not to be a conviction for immigration purposes. A uniform federal definition of conviction is necessary to avoid arbitrary results; the federal statutory scheme should therefore be used not only for federal outcomes, but also for analogous state outcomes.

c) Counsel can attempt to analogize to expungement statutes in force in the District of Columbia, and make the same argument.

You really know about Immigration laws,I hope all of this information help her in this matter. thanks for to gave us information about,, no matter thats not my case..

Was it a car that he truly *owned* (not mortgaged) and paid for in full? Or was he making payments on the car to a bank (in which case he did not yet *own* the car)?