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  • PLEASE HELP US

    Uncle facing deportation. Arrive in US in 1979 as Legal Immigrant. Convicted drug possesion with intent to sell in 1985, serve 3 months, finished his probation thereafter. Will be going to defered inspection with INS next week and most likely will recieve an NTA (Notice to Appear) and will face deportation. Has no other convictions, been an active member of community, family facing extreme hardship. Is there any relief at all?? I've been doing lots of research and all doors just seem to close on him. Will a post conviction relief work?

  • #2
    Uncle facing deportation. Arrive in US in 1979 as Legal Immigrant. Convicted drug possesion with intent to sell in 1985, serve 3 months, finished his probation thereafter. Will be going to defered inspection with INS next week and most likely will recieve an NTA (Notice to Appear) and will face deportation. Has no other convictions, been an active member of community, family facing extreme hardship. Is there any relief at all?? I've been doing lots of research and all doors just seem to close on him. Will a post conviction relief work?

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    • #3
      I don't know the answer to your question but what is your Uncle's current status

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      • #4
        Well, obviously we would need to know your uncle's current immigration status. However, anyone convicted of drug-related crimes seems to be in major trouble. Drug possession with intent to sell is a major "crime of moral turpitude" which seems to preclude your uncle from immigration benefits. I am not sure, but was the charge classified as a felony or misdemeanor?

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        • #5
          Any intent to sale is considered trafficing for commercial purposes and it's usually a felony. Any felony is automatically'n aggravated felony for immigration purposes and in essence there is not much remedy available. In fact the law states that agraFel's do not have the right to appeal.

          Now two things: it's an older conviction (pre- 1989 then the agra Fel was not defined in substance cases as it is today => try the re-opening route; since todays laws are mostly retroactive, many state courts allow you to re-open your case for new sentencing, wich can result in worse or better sentencing or even a dismissal.
          Try to obtain a executive pardon for the conviciton.

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          • #6
            Acelaw, what chance do you see for an executive pardon?

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            • #7
              You said he served 3 months, but was the sentence a year or more, becz I think that the sentence has to be a year in order to be inadmissable. Maybe you should ask that question to someone who knows.

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              • #8
                He was senteneced for 6 months. I've read about the pre-1989 or 1990 law. He was not adviced by his criminal lawyer at the time of the immigration consequences if he pleads guilty. Right now an executive pardon is all I can see unless we can find a lawyer that will reopen the case and just be at the mercy of the court.

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                • #9
                  Tish:

                  Based on what you said in your post, since your Uncle's "conviction" took place in 1985, he MAY be eligible for a section 212(c) waiver. (A guilty plea prior to April 1, 1997 is an eligibility element.) But there are other elements to be met.

                  Therefore, your uncle needs to find a GOOD immigration attorney - well versed in the immigration aspects of criminal convictions. Your uncle's case is complex and many questions need to be answered to determine what, if any, relief may be available.

                  What is the reason for the deferred inspection?

                  Okie Celt

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                  • #10
                    My uncle went home for my grandfather's funeral. He came back after 4 days and was detained by INS for questioning for 3 hours. Then they gave him a date for deferred inspection.BTW, according to this article I found,"9th Circuit Says Immigrants Cannot Be Deported For Expunged Drug Offenses 8/04/00...The appeals court ruled that immigrants convicted for the first time of minor drug crimes cannot be deported if their convictions have been expunged under the Federal First Offender Act, or a similar state expungement statute. For example, expungement is offered in California for first-time drug offenders who complete probation without violating its conditions, including passing random drug tests and drug rehabilitation."

                    Has any of you heard of this?

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                    • #11
                      NYCpara: I see very slight chance for an executive pardon for two reasons:
                      -it's not a favorable subject (substances, trafficking)
                      -statuary remedies are available (as Okie pointed out very accuratly).

                      Tish: yes, the federal first offender is a commonly used relief for minor drug offenders (but if it's drug trafficking, it will not apply to it, unless he can proof that it was for self-consumption in 1985). There is a partial overuling of the Roldan case, check that out. As you were advised, it's a too comlex case, you may need to involve an attorney!

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                      • #12
                        acelaw, what if the criminal case is vacated and they have to start all over again, do you know of any case where they lowered the conviction so that he will not be deportable? do you see any danger in this kind of move? and what normally are the chances of a criminal case being vacated (though he was not advised by his criminal attorney of the immigration consequences at the time he pled guilty).

                        Also, I understand that immigrants in this situation are really desperate for help. How can you tell if the lawyer is not taking advantage of the situation? These cases are not guaranteed because often times the person is at the mercy of the court or the judge.

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                        • #13
                          Does anyone here have a similar case?? Would certainly appreciate any advice from anyone who is familiar with this case.
                          -tish

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                          • #14
                            I just want to thank everyone who responded to my postings. Just want to let you know that my uncle has been given a second chance in this country. His case has been dropped and he is now processing his papers to file for citizenship. I pray for those who are going through the same ordeal that our family went through. Again, thank you for the support.

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