Claudio accepted an Order of Deportation from a New York Immigration Judge. It didn’t have to happen. Here are the facts:
- He is married to a U.S. citizen wife, who is pregnant with their first child.
- He has a five-year-old son from a prior relationship.
- He has been in the U.S. for over 12 years; having entered as a tourist and overstayed his visa, which entitled him to adjust his status in the U.S.
So what went wrong?
In 2004, Claudio broke up a fight in New York between a relative and another person. When the police arrived all three were arrested. He paid bail, went to court several times than failed to appear. Ten years later he was arrested at work and taken to New York to face the assault charge and bond jumping. He didn’t hire private counsel but the public defender appointed to him. This attorney didn’t do much for him. She got the assault charge reduced to disorderly conduct (good result) but plead him guilty to bond jumping, a felony. She said this is the best she could do and if he went to trial it would be a lot worse.
If you are a U.S. citizen, 11 days in jail for these New York offenses might be a good result. However, for a non-U.S. citizen, bond jumping can be an Aggravated Felony under certain circumstances. Immigration Customs Enforcement (ICE) took custody of him after his criminal matter was resolved and put him into removal proceedings (deportation).
What happened in Immigration Court?
For two months we fought for his release. We got zero assistance from his family. His wife who lived in a different state was in a difficult financial situation and had to move in with her family. His brothers never returned a single phone call. His family provided very little documentation to support his continued stay in the U.S. His wife never signed the immediate relative petition (Form I-130) to get his green card nor provided us with her family background necessary for the Form G-325. Nor did she provide us with the information to file for Cancellation of Removal, form EOIR42B. They also didn’t pay us to anything more than visit him in jail once..
We don’t normally take on cases where the client or his family hasn’t paid us. However, we have known Claudio for several years. We couldn’t just sit back and do nothing. So we appeared in his deportation proceeding to try and get him out on an immigration bond (bail). No one paid us to appear in New York court for him twice or to file the two motions that we prepared and argued. Claudio really deserved better than the way his family treated him. He truly is an exceptional person; we don’t do this for just anybody.
What did we do?
We filed a bond re-determination with an Immigration Judge. Since ICE didn’t set an immigration bond, we asked that an Immigration Judge do so. We knew that if Claudio got out of jail, he can work and pay us for the work we did, even if his family didn’t want to help.
What was the Government’s position?
The trial attorney, the government’s attorney, argued that the bond jumping was an Aggravated Felony. Truthfully, it could have been if the government had the necessary evidence. They didn’t. They didn’t have a court order requiring Claudio’s appearance in 2004. There is a Court of Appeals decision, from another jurisdiction, that said so in detail. The trial attorney had no documentation at all to present. Despite this, the Immigration Judge didn’t care. He felt that even if Claudio’s bond jumping was not an Aggravated Felony, his failure to appear for 10 years was enough to show he was a flight risk. Here, is where the Claudio’s family would have made all the difference. Despite that, we did show he had long ties to the U.S.
The Immigration Judge found it was an Aggravated Felony and even it wasn’t, the Judge felt Claudio was a flight risk. The Judge was wrong on the Aggravated Felony and he didn’t substantiate his decision on why Claudio was not entitled to a bond. This was a clear abuse of discretion.
How did Claudio React?
I was looking forward to this appeal. Unfortunately, Claudio didn’t want to appeal. He didn’t want to fight. He just wanted to get out of jail. After five months, and seeing that not one family member came to his hearing he gave up. Claudio couldn’t bear facing another six months in jail. He accepted a final order of deportation, against our advice.
How could the Deportation Be Avoided?
Here is how it could have been avoided:
- Before we file any immigration petition, we get a criminal background for every beneficiary. However, he hadn’t yet retained us for this process so we wouldn’t have ordered. Despite that, he had known us for a year and we helped him get divorced so that he could remarry and his new wife and she would petition for him. It took many months, but we got the divorce. He never told us about his New York matter.
- He could have hired a criminal defense attorney and fought the bond jumping. Even after the conviction, he could have hired an attorney to do a Post-Conviction Relief. This was his only barrier to relief.
- His family should have rallied to his defense. We needed birth certificates, letters of support, and ties to the community. They needed to be at the hearing to testify. In short, we needed evidence that he was neither a flight risk nor a threat to the community. We needed information to file immigration petitions and they needed to pay for the filing fees. They did nothing.
- He should have appealed the Immigration’s Decision denying his Immigration Bond.
Don’t let this happen to you. Be prepared. If you qualify for an immigration benefit, meet with an immigration attorney and explore that possibility today. Make sure you are 100% honest about any arrest history you may have.
Call 888-695-6169 to speak to our knowledgeable staff today.