- Deportation & Removal
- Lawful Permanent Residence
- Removal of Condition (I-751)
- Consular Processing
Deportation from the United States is the harshest immigration punishment an immigrant can suffer. Deportation results from violation of the immigration laws and certain criminal convictions. Deportation or removal proceeding against an immigrant can be triggered by a variety of reasons. One of the most common is conviction for certain criminal offenses. Too often, many immigrants do not realize that what they believe to be a minor criminal offense can trigger removal where “more serious” offenses may not! Therefore, do not make the mistake of assuming that only felony convictions lead to removal, as nothing can be further from the truth. The intersection of criminal and immigration laws is very complex area. Any immigrant who is facing any type of criminal charge or who has any type of criminal record should consult an experienced immigration attorney before pleading guilty or agreeing to any pre-trial disposition. An immigrant who has any kind of criminal record should also consult an experienced attorney before applying for any immigration benefit.
Immigration and Customs Enforcement (ICE) usually starts the deportation process by issuing a Notice to Appear (NTA) to the alien. The NTA outlines the charges and grounds of removal against the alien and command the alien to come to immigration court. Removal hearings are civil proceedings in nature, but carries severe consequences for the alien if ordered removed from the US. An immigration judge conducts the removal hearing in the immigration court. There are approximately 200 immigration judges in the United States. Immigration courts do not follow strict rules of evidence, therefore, the Immigration Judge is able to consider evidence that otherwise could be excluded under the Federal Rules of Evidence. One of the consequences of the loosened evidence rule in Immigration court is that the immigration judge has wide latitude and discretion in denying or granting relief. The alien is entitled to be represented by an attorney of his or her choosing, at the alien’s expense. There are no free lawyers in removal hearings. An immigration judge’s decision may be appealed to the Board of Immigration Appeal (BIA) by the alien or by the government. The decision of the BIA may be appealed to a circuit court of appeal by either party. A vast majority of immigration cases end at the circuit court level, since the next appellate court is the US Supreme Court hears approximately only 90 cases per year.
There are approximately 200 immigration judges in the United States. There are three judges in the immigration court in Seattle. There are also two judges at the immigration court at the Tacoma Detention Center. The Immigration Court Practice Manual and 8 CFR 1003.0 govern the operation of the immigration courts. However, the immigration judge has wide latitude and discretion in conducting deportation hearings. Therefore, it is important to engage an attorney who has trial experience before the judges. This is because an attorney who is familiar with the immigration judge has a more clear understanding of the judge’s style, expectations and attitude towards cases. We have been practicing before the Seattle Immigration Court since 1998. We are familiar with all the judges in Seattle and Tacoma.
Detention and Bond and Detention Before the Seattle Immigration Court and the Northwest Detention Center (Tacoma Detention Center)
Immigration and Custom Enforcement (ICE) and Department of Homeland Security (DHS) place the highest priority on the removal or deportation of criminal aliens. To apprehend criminal aliens ICE and DHS employ what is called a “Detainer” pursuant to Section 236(d) of the Act. Under the detainer program, ICE and DHS send agents to state, county and municipal jails to check the jail roster for immigrants in custody. If a non-citizen (whether a lawful permanent, asylee, or non-immigrants) ICE will place a detainer or instruction to the jail to release the inmate to ICE custody where it would instituted removal proceeding. Even in cases where a non-citizen criminal defendant is on probation, work-release or a similar court ordered post conviction program, ICE has been known to apprehend the immigrant in his or her probation officer’s office. Essentially, any criminal alien that ICE comes in contact with
8 U.S.C. 1226, Section 236 of the Immigration and Nationality Act authorizes “mandatory detention” of aliens who have been convicted of classes of crimes called “aggravated felony” or other sets of crimes defined under section 212(a)(2), §237(a)(2)(A)(ii), A(iii), (B), (C) or (D) of the Act. In lay man’s terms these crimes include, controlled substance possession, drug trafficking, multiple conviction for crimes involving moral turpitude, certain firearms offenses, conspiracy or attempt to violate any offense relating to espionage, sabotage, treason, or the Military Selective Service Act, promotion of prostitution, human trafficking, money laundering, any crime of violence where the sentence imposed is 1 year or more. For additional information regarding whether a particular conviction constitutes aggravated felony, please consult a criminal immigration. Any alien who has been convicted of any of the offenses above is subject to mandatory detention and is ineligible for bond, which means that the criminal alien must be detained in immigration jail until his or her case is decided.
Are about aliens who are convicted of criminal offenses that do not qualify as “aggravated felony” eligible for bond? The answer is that it depends, as this issue is a subject of great importance and debate. In the case of a criminal alien who is convicted of a non-mandatory detention crime, the alien must demonstrate that he is not a threat to national security, that his release would not pose a danger to property or persons, and that he is likely to appear for future proceedings. Matter of Guerrra, 24 I & N Dec. 37 (BIA 2006). This means that in non-mandatory detention cases, the immigration judge has the authority to release on bond of not less than $1500, or to continue to detain pending the final determination of his or her case.
Are Non-criminal aliens entitled to Bond?
Neither the Immigration and Nationality Act nor any applicable regulation confers on the alien the right to release on bond. However, in general, aliens arrested by immigration for non-criminal violation of the immigration laws are usually granted bond. Usually, in all bond cases except in mandatory detention and where the judge has ordered detention pending the outcome of the case, the judge usually weighs the risk posed by the alien to the safety of the community and the risk of flight against unnecessary and the cost of detaining the alien, especially given the lack of space in detention centers. Therefore, to obtain a reasonable and affordable bond, the immigration judge will consider factors such as family ties to citizens and lawful permanent residents, employment history, assets possessed, the nature and extent of criminal history, how long ago the alien committed the offense and evidence of rehabilitation, ties to community groups such as the church, volunteer or other non-profit organizations.
How Can I stop Deportation?
If you or a loved one is subject to deportation or removal, depending on the specific facts of your case, you may be eligible for relief from deportation by applying for applicable waivers or other forms of relief. Some of the forms of relief that may be available to an alien in removal proceeding include, but may not be limited to the following:
- Cancellation of Removal (available to some lawful permanent residents and non-permanent residents)
- Waivers under 212(c) for individuals who meet the requirement
- Waiver under 212(h) and 212(i) (usually for fraud)
- Voluntary Departure
- Adjustment of Status
- Asylum, Withholding of Removal, and protection against torture under Article 3 of the United Nations Convention Against Torture.
- Motions to Terminate Proceeding (usually based on substantive and procedural charging errors)
- Post-conviction relief (alien attempts to amend sentence or withdraw the underlying guilty plea before the criminal court).
What Do I Need to Do to Win?
No attorney can guarantee that you will be successful in your deportation case, and you must be suspicious of any deportation attorney who guarantees a “win”. Your task is to find competent legal representation, period. The immigration judge will consider many factors in allowing you to stay in the United States. A competent deportation attorney after evaluating the specific facts of your case, should be able to educate you on those favorable factors that improve your chance of “winning” your case.
In waiver cases, documentation and preparation are key. Documentation that support your favorable factors greatly increases the chance that the immigration judge will grant your application. The immigration judge usually considers the following equities:
- Length of residency in the US;
- Family relationship and the immigration status of family members;
- Employment history and tax filing and payment (very important!)
- Proof that you will not be a public charge
- Your involvement in positive community activities (church, volunteer work, etc)
- Your criminal history and past violation of immigration laws
- Demonstration of rehabilitation
- Hardship to be suffered by your family members in the US if you were to be removed or deported from the US.
Essentially, the immigration judge must balance your equities (positive attributes) against your negative factors. If the alien’s equities outweigh their negatives factors, the immigration judge generally grants relief, but if the negative outweighs the equities, the judge may order deportation or removal. The immigration judge usually designates the country the alien is removed to.
We represent aliens in removal proceeding before the immigration court in Seattle and Tacoma Detention Center. There are three immigration judges in Seattle Immigration Court and two other immigration judges at the Tacoma Detention Center. We are familiar with all the immigration judges in Washington State, which can be very helpful in representing immigrants facing removal. If you have any more questions or wish to contact us, please email firstname.lastname@example.org.
In some cases aliens who are facing deportation as a result of criminal conviction(s) may not have any available relief or waivers under the Immigration and Nationality Act. This especially true for aliens convicted of aggravated felony under Section 212(a) or §237 of the INA, or aliens who have not accrued sufficient time, or do not have family ties or other equities necessary for cancellation of removal relief. Conviction of an aggravated felony carries the maximum penalty for an alien who is not a U.S. citizen. The penalty is automatic deportation, no matter the equities such as family ties, length of residence in the U.S., hardship in the alien’s native country. In fact, any alien who is convicted of an aggravated felony and apprehended by ICE is subject to mandatory detention, meaning that the alien would never be released from ICE custody unless the immigration judge ultimately terminates proceeding against the alien. Furthermore, some aliens who are not convicted of an aggravated felony may nevertheless be deportable under non-aggravated ground of deportability. There are waivers such as cancellation of removal and 212(c) waivers available to aliens who have accrued sufficient time for continuous residency and may have qualifying relatives. Unfortunately, for some aliens who have criminal convictions and are in deportation proceeding prior to acquiring sufficient time for continuous residency, the only defense available to them may be to seek post-conviction relief, such as withdrawal of guilty pleas and/or amendment of sentence imposed, nunc pro tunc (meaning dating back to the original date of sentencing).
To be clear, only a guilty plea can be withdrawn and a guilty finding reached after trial cannot be withdrawn. The most common circumstance is that an alien entered a guilty plea on advice of his or her criminal lawyer who did not understand or misunderstood the immigration consequences for the alien defendant for entering the guilty plea. The other scenario is that the alien’s criminal lawyer never asked the criminal court judge to impose a sentence of 364 days instead of the standard sentence of 365 days for most misdemeanors. Some criminal lawyers do not know that a simple misdemeanor can become an aggravated felony for immigration law purposes since the common meaning of a felony is a crime that carries over 1 year in jail. Therefore, these criminal lawyers assume that “aggravated felony” must be a regular felony accompanied by aggravating circumstances. Nothing can be further from the truth.
For instance, INS §101(a)(43)(F) defines as “aggravated felony” “a crime of violence for which the term of imprisonment is at least a year. The standard sentence for simple assault or domestic violence is 365-day sentence. Similarly, INS §101(a)(43)(G) also defines “aggravated felony” as a theft or burglary offense for which the term of imprisonment is at least a year. First degree theft is the stealing of another person’s property that is worth more than $1,500, and second degree theft is the stealing property of another worth between $250 and $1499. Shoplifting which is equivalent of third degree theft is the stealing of another person’s property worth $250 or less. Most theft offenses except for shoplifting carry sentence of at least 1 year or more, unless the court is specifically moved to impose a sentence of 364 days.
How to Withdraw a Guilty Plea or Amend Sentence Nunc Pro Tunc.
Our post-conviction practice is limited to King, Pierce and Snohomish counties. We usually start by consulting with the alien to discuss all representations or warnings regarding the consequences of the plea provided by the former defense counsel and/or the court at the time when the alien plead guilty. From experience, we have found that some defense counsel simply do not inquire about the immigration status of the alien (maybe assumes alien is a U.S. citizen) and therefore fail to warn the alien to seek the opinion of an immigration attorney; some defense counsel just take the alien client’s word that he or she is “legal” without inquiring further as to whether they are citizens, lawful permanent residents or other immigration status; some defense counsel misrepresent the immigration consequences of the plea to the client because they do not have accurate information or are over-worked and just want to get the case over with.
In our experience, the criminal court will ordinarily review any motion for withdrawal of plea or sentence amendment on the criminal rule CrR 7.8. It is essential for motion for plea withdrawal or sentence amendment to be thoroughly briefed and strongly supported by evidence, as the criminal court on the CrR 7.8 (c)(2) may deny the motion without a hearing if the fact alleged in the affidavits do not establish grounds for relief. In this jurisdiction, there are generally issues and factors that enhance the success or failure of motion of post-conviction relief. These factors are:
Jurisdiction of the court to amend after the one-year time limit mandated by RCW 10.73.090. The initial huddle anyone seeking post-conviction relief faces in Washington is that RCW 10.73.090 imposes one-year time limit for collateral attacks on a judgment that is valid on its face. However, one-year time limit may be equitably tolled on the State v. Littlefair, 112 Wn.App. 749 (2002). A defendant moving to withdraw his guilty plea must show by a preponderance of the evidence that he was not properly advised of the immigration consequences. State v. Holley, 75 Wn.App. 191, 876 P.2d 973 (1994). To establish that criminal counsel was ineffective is assisting or advising the defendant to plead guilty, it must be shown that defense counsel actually and substantially assisted his client in deciding whether to plead guilty. State v. Malik, 37 Wn.App, 414 (1984). The court will allow withdrawal of plea when the defendant can show that defense attorney affirmatively misrepresented consequences of pleading guilty to the defendant.
The Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. ______, 130 S. Ct. 1473 (2010), clears the confusion generated by the line of court opinions dealing with collateral challenges (challenge of a judgment valid on its face). The Supreme Court basically has imposed the duty on the defense attorney, that he must advise a client whether his plea carries a risk of deportation where the risk of deportation is clear. However, in those cases where the risk of deportation is not so clear, the defense attorney must advise the client to consult an immigration attorney. The result of the Padilla case is that more cases where guilty pleas were entered are now subject to challenges. Therefore, if you are facing deportation as a result of criminal conviction, and you are ineligible for waivers or other relief, withdrawal of your guilty plea is now a viable means to fight your deportation problem and stay in the United States.
RCW 10.40.200 creates a statutory right to be advised of the immigration consequences entering plea. Almost every court in Washington states is aware of this provision and has amended their Statement on Plea of Guilty form to contain this immigration advisory. Therefore in the event that you enter your guilty plea without the court advising you of the immigration consequences that may be a viable ground to withdraw your plea.
Discretion of the criminal court judge to vacate. From experience, the criminal court judge generally grants the motion to vacate or withdraw or amend the guilty plea and all sentences if the judge is sympathetic to the alliance situation. Factors that may influence the chance of success of whether the court would grants the motion to withdraw include the alien’s criminal history, rehabilitation, compliance with sentence and parole requirements, and hardship to the family in event of deportation. By far, the most important factor criminal court weighs in granting motion to withdraw plea, the judge’s impression of the alien defendant during the course of his or her case before that judge. An example of this situation occurred in one of our cases, where we filed a motion to withdraw a plea. In this particular case our client had a lot of equities such as strong family ties to the United States, long residency, etc. The judge however, was unsympathetic to our client situation because the judge recalled that our client missed his court hearings and the judge had to issue warrants for his arrest. The judge also recalled that on the occasions where our client appeared for his court hearings, he was always late. Therefore, an alien defendant who has a history of dilatory or uncooperative behavior may not be as successful in withdrawing a plea or amending a sentence to avoid immigration consequences.