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How Being Charged with a Crime May Impact Your Green Card Application
In this short video, immigration attorney, Andres Mejer, talks about how being charged with a crime might affect your green card application. Andres tells you what your options are if you have a conviction.
Andres Mejer: Now we’re going to talk about the second subject of today’s program, how crimes can disqualify you from a Green Card and can it be waived? Now, last week we spoke of how to overcome an order of removal and still get a Green Card. Today, we’re going to discuss how criminal convictions can affect you and be overcome. Now, if you remember last week, we said, listen, you can either waive it or you can try to reopen the order. Guess what? It ain’t that different. If you have a conviction, you can either try to waive it or you can try to reopen it. Now, before we accept any client, we first analyze three things. One, do you have a path to legal status if you don’t stop there. 2, Is there something in your past that can disqualify you? And 3, can we overcome that issue? So here we’re going to be talking about to either what’s called a post conviction relief motion, which is we’re reopening the conviction or we’re asking for a waiver. We’re asking for immigration to forgive us for the following reasons. So talk about criminal convictions. George is married to a U.S. citizen, Maria. Maria is going to apply for him, but he has a criminal past. So let’s say George was convicted of a DUI. Now, that automatically disqualifies him from DACA, Deferred Action for Childhood Arrivals. He, lets say he’s a Green Card holder and his conviction was within the last three or five years. Well, that could prevent him from becoming a U.S. citizen until three or five years pass after his conviction. But it might not prevent him from getting his Green Card when Maria is applying for him. So it really depends. What’s the path we’re talking about? What’s the crime? Incredibly important, it is fact specific case by case. Let’s say George was convicted of domestic violence. Well, that might disqualify him from a Green Card depending on when it happened and what would happen if he was convicted 20 years ago. You could say he’s been rehabilitated. If it was last week to his wife who’s applying for his Green Card, well, now he might have a problem. It’s very fact specific. Let’s imagine George applying for a U visa and he’s convicted of domestic violence. So now we have to look at totality of the circumstances. Immigration is going to say, hey, with what crime did George help us out? Let’s say it was murder. Let’s say was something significant. What was he convicted of? Well, simple assault. But we have documentation from his wife that he’s reconciled, that they living together, that he’s seen anger management. He’s rehabilitated. He made a mistake and he realizes. OK, there he might get approved. But let’s say he’s applying for a U visa because he was a victim of of robbery and he was convicted of domestic violence where broke his girlfriend’s nose, split her eye. She had stitches. She has a permanent scar. And he was convicted and went to jail for three years. You know what? Now he’s likely to get denied. So it is very fact specific. Let’s say if he’s filing for VAWA. Violence Against Women Act, remember, it’s not limited to just women. Now, here again, he might have a problem because he needs to show that he’s suffered extreme cruelty from a bonafide relationship in, let’s say, to to to a spouse to Maria who is a U.S. citizen. But now he’s been shown to be the abuser. But here he’s saying that he suffered extreme cruelty, that she was abusing him, but he was convicted of abusing her. That could be a problem. Maybe it was a prior relationship. Maybe it was a long time he was rehabilitated. Or maybe he has four restraining orders against wife to be called the police multiple times. And in this one instance, he reacted poorly and he was convicted also. Again, totality of the circumstances. It really depends. But what’s the path to legal status, number one? Second. What’s the crime? What’s the issue that that that that disqualifies you in three? How can we overcome it? We’ve probably discussed waivers. This one is no different. Jorge needs to show that his spouse or parents who are U.S. citizens over a lawful permanent residents would suffer extreme hardship if the waiver is granted. Problem comes in. What happens if Jorge doesn’t have a qualifying relative? Let’s say it’s his son who’s applying from because his son is a U.S. citizen and over 21. He doesn’t have a qualifying relative, doesn’t have a parents or spouse.
Andres Mejer :Let’s say they live far away. So his parents live in California and he can’t move there and they can’t move here. Well, he’s going to have a hard time showing that they’re going to suffer extremely if they live so far away or they don’t have extreme hardship.
Andres Mejer :We’ve we’ve gone extraordinary lengths to prove extreme hardship, but some. But sometimes when it’s not there, it’s not there. So there we have to we have to consider something else like post conviction relief. This isn’t an appeal. A PCR motion can be filed much after a criminal appeal. Let’s say I was convicted of a DUI. God forbid. I have anywhere from 30 to 90 days to file for my appeal, depending on where it is and what the surface of the state is in this bill. I have a certain period of time. Once that time passes, that’s it. I can’t appeal anymore. So a PCR is a central way to challenge a conviction. You can file a PCR motion in Jersey within five years of the conviction after five years. You have to show exceptional circumstances. Why you didn’t file it sooner. That can be hard. But again, it’s fact specific. I filed it more than 20 years after the fact and I’ve gotten them approved. It’s a case by case analysis. Most common reasons for PCR number one, ineffective assistance of counsel. Here you have to show that your attorney made a significant mistake and that mistake prejudiced your case. You’re not entitled to the best attorney in the world. You’re only entitled to a reasonable attorney. And when a reasonable attorney would do so, if a reasonable attorney would have done it correctly, would have filed that notice of appeal. We’d have advised you that that is the wrong course of conduct. So think about it in a medical malpractise case. Well, if if a doctor is meant to operate on your right leg and he operates on your left leg. No reasonable doctor would operate on the wrong leg. Well, in the immigration attorney. In consequences, your immigration or your criminal attorney devised a defense strategy that no reasonable attorney would do. So it has to be a significant mistake and that it prejudiced you. 2, another reason is the judge didn’t give the appropriate warnings or instructions, for example, that their convictions could have immigration consequences. That this is a big deal because so let’s say I’m a Chilean citizen. I’m visiting from Chile and visiting relatives and I get accused of a crime. Now I have a plane ticket. I’m flying back next week. I don’t have a whole lot of time to defend this.
Andres Mejer :And, you know, an attorney tells me, no problem. You pay a fine. It’ll go away. OK, great. So I plead guilty to my DUI. I pay my nine hundred dollar fine. I pay my attorney the well, the attorney that told me that likely is cheap because a good attorney will never to do that for a DUI. But let’s say I do. I do it with an attorney or without an attorney because I can’t stay or I don’t want to stay. I don’t want to deal with it. I’m not aware that it can have immigration consequences. And then when I want to come back for work and when I use my tourist visa, they say, oh, you’re disqualified because Europe, you’re a criminal. You were convicted of a DUI. Your visa is null and void. Now you’re like, wait a minute. I did know I was charged on Friday. I went to court on Monday. My plea was not knowing involuntary. There was no translator. I didn’t have an attorney. The judge didn’t inform me. I had no idea. Tell me. Paid a hundred bucks in Europe and you’re set. And I did. That’s the third reason. If you didn’t if the plea was not knowing involuntary Now. Usually it’s I didn’t have a translator, but sometimes if I didn’t have a translator and I didn’t have an attorney.
Andres Mejer :Those are the three most common reasons for PCR. PCR is can be fantastic, but they don’t always work. For example, we have a client who pled guilty to sex abuse of a minor. He was a green card holder. He was picked up by ICE. We review. We are the transcript. We are the discovery. His only shot at staying in the United States. His only shot to stay in United States was try to undo that conviction. And when we review the transcript and the discovery, you know what? We did find a way to reopen it. Not every case has a fundamental mistake. We can overcome. We can’t always undo what was done.
Andres Mejer :Sometimes we can. Often we can, but not always. Let me give you an example. Let’s say he was found on on camera doing what he shouldn’t have done. I if I can’t get that video thrown out of court or inadmissible supports called suppressed, it’s going to be really hard to win a case where the video shows that you did the crime you’re accused of. So thank you for listening. I’m on this method and I’m at your service.