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How Legal Problems Affect Your Green Card
Whether you are getting a green card, renewing it or have had one for many years, #publiccharge is not the only thing you may or may not need to consider. Immigration attorney, Andres Mejer, talks about three different individuals with charges and how they may be overcome so they can obtain the immigration benefit they want AND not be deported.
Andres Mejer :Good morning. Today, I want to talk about a scenario that we’re finding much more prevalent than it’s ever been before. Getting your Green Card has never been harder. It takes longer. There is more pitfalls. There’s a lot more roadblocks to you getting your Green Card today than there ever was before.
Andres Mejer :Now there’s a number of ways to get your Green Card. And in this radio program in Spanish, we’ve discussed it a number of different ways. A family based petition and employment based petition. Victim of violent crime or trafficking? So U visa an s visa, Vawa. Violence Against Women Act, special immigrant juvenile, asylum , cancelation of removal for those that don’t have a don’t have a Green Card.
Andres Mejer :So and a host of other employment related type visas, sports, authors, exceptional individuals. There’s many ways to get your Green Card. But once you have it, you have it. Now, historically, once you have it, you tend to keep it. And there are people that never become U.S. citizens that just stay as a green card holder. It is something I strongly encourage you not to do if you had your Green Card look for a way to get your citizenship as quickly as possible, because under this administration, they don’t want you to keep your Green Card. They don’t want to keep you as a green card holder. They all immigrants are a problem and all should be deported. That’s the mentality that we’re seeing. That’s the approach that we’re seeing. So if you have a means to become a U.S. citizen, do so.
Andres Mejer :I’m going to talk to you now about three different scenarios about how the government is trying to deport them. So let’s just get right to it. The first one is Jose Luis Garcia. He was picked up, called months ago, one of fifteen that were arrested in a three day ICE raid in California on public safety threats. Jose Luis Garcia was 62 years old. He’s a grandfather who left Mexico when he was 13. So almost 50 years ago, married U.S. citizen, wife, U.S. citizen kids, U.S. citizen grandkids’. I believe he’s now retired. He was arrested in 2001 for domestic violence. Now, it’s unclear whether he was convicted or not. I’m assuming that he was 17 years ago because of that conviction. He’s now picked up and awaiting his trial date.
Andres Mejer :Second example, Lucas Netsch. He came to the U.S. when he was five years old from Poland. His scenario is very similar to mine, except I’m not Polish, meaning I wasn’t born in Poland. I was born. Instead, what you like. His parents were both doctors. He became a lawful permanent resident in 1989, grew up in Michigan, went to high school here, went to college, went to medical school, is a medical doctor. He likely received his green card under President Reagan’s amnesty January nineteen ninety two. He was convicted of malicious destruction of property valued under one hundred dollars. There was a car accident. There were no people in the car. He got out. There was a fight. He was charged. He was underage. And he was a juvenile. And this was three years after he got his Green Card. Nineteen ninety two. He was convicted of receiving stolen property valued at over $100 again. He was a minor in immigration suspect is under 21, but I think he was even under 18 at the time. And the charge was expunged and teachable moment.
Andres Mejer :Big deal, if you’re an immigrant. There is no such thing as an expungement. Don’t ever expunge something if you’re not a U.S. citizen. It will not help you. There is no such thing as an expungement for immigration purposes. What happens is you make your attorney’s life miserable because now we can’t get police report. We can’t get a disposition. If you don’t have that information before you got the expungement, you can’t get it. Now, 2013, he was arrested for domestic violence. He did the smart thing. He fought it. He got an attorney. He went to trial. He won at trial. He was not convicted of domestic violence. So we got to 1990 to juvenile violations in a DUI. He’s a doctor. And yet, you know, he was detained in his home after his kids went off to school.
Andres Mejer :Third situation did foster Jamaican lawful permanent resident. He was picked up. He was one of the 105 immigrants that were picked up in New Jersey by ICE. The week after our attorney general said, you know what? We’re not going to play nice with ICE anymore. He entered the US as a lawful permanent resident in 1997. He’s married to a US citizen who’s a disabled military veteran. She was deployed abroad. She was injured when a mine went off or an IED and she’s disabled. Blew up her pelvis. She is. She can’t work legally disabled. He was convicted of simple possession of marijuana in New Jersey, in New Jersey to disorderly persons offense. It’s not even considered a crime. It would maybe be a misdemeanor. But us. But New Jersey does not have misdemeanors. No jail time? No. Did you do probation? And here’s the weird part, because in New Jersey, there’s a program called Conditional Discharge. It’s your one time. Get out of jail free card. If you’re charged with something like possession of marijuana. Well, you don’t plead guilty. You in for a judge. You could put in probation for twelve months. There’s some counseling. There’s drug tests. You pass it a year later. Probation is ends and the case is dismissed. But the point of this is why if he was only arrested once, why didn’t he apply for a conditional discharge? We don’t know when this happened. Maybe he had the conditional discharge and then was charged a second time after a probationary period. So we don’t have enough facts, but it’s bizarre enough from what his wife says. No probation, no other arrests. I don’t know if he had an attorney. It’s bizarre. Now, three scenarios, three different parts of the country, West Coast, mid, mid country and then East Coast.
Andres Mejer :Now there are two different solutions then we could look at to help these individual one is called post-conviction relief. That’s a scenario,. Now, that’s where you’re applying to the judge that that convicted you with trial or you pled guilty. It’s after the appeal. Time has lapsed. And you’re saying, your honor, there was a. I was I was deprived a fundamental constitutional right. And I’ll give you some examples of how we’ve done in the past. But it’s typically should be filed within five years. It’s much harder to do it after five years. We at this method define this in three different categories. First is we order the transcripts in in discovery and see, listen, was there a fundamental right that you were deprived? And if so, how? How can we argued? What’s your chances of success? Once we find a path is listen, I did. There was definitely a problem here. We filed a motion with the judge. We appear before the judge. We argue the motion. If the judge agrees and grants it now, the conviction is gone away. But we still have to defend you. So that’s a third part. So now we have to defend. So let’s say Dane Dane Foster situation. Let’s say he this was his first arrest and maybe he was arrested on a Sunday and convicted on a Tuesday. No attorney just paid the two. Two not fine. Have it all fine. Knows it. It’s actually close to 1000 dieter and it’s almost a thousand dollar fine. But let’s say that that is that is what happened. Well, we thought post commissioner leave would say this, and he had no counsel. He wasn’t aware of his rights. We ordered the transcript. Transcript probably shows that the judge didn’t inform him of of his rights, just took accepted his guilty plea. That sets it aside. Then he applies for this this charge. The moment he applies for conditional discharge, the crime will has already gone away because the moment the judge signs the post-conviction relief order, the conviction no longer exists. Now he’s just defending the charge. And that charge alone is not deportable offense. Assuming he wins it. So most common reasons for post-conviction relief are ineffective assistance of counsel. My attorney didn’t do X, Y and Z, which any normal attorney would have done in the circumstances, or the judge or the court didn’t probably inform me of my rights when I go in front of the judge and I plead guilty. Now I know that I’ll be asked a series of questions. Usually it’s done by my attorney. It might be done by the prosecutor. It might be done by the judge. But the judge has to inform me of certain rights, for example, that I’m entitled to evaluate my immigration consequences, that if I plead guilty, I may be deported. If I or if I want to apply for his job in the future, I may be denied or if I leave the U.S. and may be refused admittance because of this conviction. So the judge will ask me, did I speak to immigration counsel? If I say no, the judge will ask me, well, do you want an opportunity to speak to one now? And if I say yes, the case will be adjourned. I will speak to an attorney or I’ll have the opportunity if I come back and I don’t do it, that’s on me. So, Judge, the court did promptly inform me of my rights. 3 There wasn’t a translator V available. So my plea wasn’t knowing or voluntary. Let’s say Hozier louis’ the first example, the 62 year old grandfather, let’s say for purposes of conversation. He was arrested over the weekend to be able to once drink. Maybe not. I don’t know. The circumstances are. I just know that this is commun associated with alcohol. Shows up in court on Monday or Tuesday, just pleads guilty. There wasn’t a translator there. Let’s say back then his English wasn’t so good. Maybe that’s why he never became a citizen, because he was concerned about his language inability to pass the pass the test.
Andres Mejer :So there was no translator didn’t have an attorney, even if the judge gave me the instructions without a translator. He didn’t understand what those instructions were. So this plea was not knowing and was not voluntary. That’s a base to set aside the conviction. Last one is a little newer defense counsel then probably advise you of your immigration consequences to a plea or conviction, even if the judge says it. Even if the prosecutor says it. If your attorney tells us this, that that’s a formality. Don’t worry about it. That’s nonsense. You’re screwed. Just plead guilty and everything will get better and you’ll be released. And life would be good that, you know, the attorney could could have given you bad advice and you relied on that advice. It was incorrect advice. And because of that, you never would have entered into that plea voluntarily. But for the bad advice he gave you. By the way, that advice to most other attorneys would not also give you the standard of care is what does in your average attorney do not what does the best attorney in the country do best occur? Attorney The country is not is not the standard by which you’re judged by when they’re looking at this. So those are the sort of the most common circumstances in which we file and receive post-conviction relief motion. So now let’s look at closing Lewis again. I just gave you an example of how that could be done. We don’t have much information. It was 17 years ago was domestic violence for his wife. You know, did his wife want to press charges? Did he go to counseling? You know, in New Jersey, this happened in New Jersey. Again, quite often these convictions are happen really quickly. No time to speak to attorney, no translator. So let’s say here there was a dispute, maybe had too much to drink. Someone called the police. We don’t know if it’s a neighbor or the wife or him. Someone calls the police. Maybe he fell, but he was walking. He was inebriated, tripped over something, fell on top of her or near her, knocking her down. She falls, has a mark on her face. Police comes in, charges him with it, with domestic violence. Now, maybe it was an accident. Maybe it wasn’t. I don’t know. Again. I’m giving a scenario that I’ve seen too many times. She says she hasn’t played police charges. She says she’s not afraid of of him. But the police, he’s a mug. So they charge they charge. They arrest him and they charge him. He goes to court and he says, what happened? Well, you know, I fell. I fell on her. She was injured. Was she injured? Yes. OK. I’m sorry. I pled guilty. Pays the fine and leaves. Here we are 17 years ago. Now there’s consequences to that plea. We have to relook at it. Maybe we can reopen it. Maybe it was inappropriate. We have to see what the circumstances were. I’m giving you one scenario where but, you know, look, at the end of the day, one one charge for domestic violence should not be a basis to deport somebody particular. Someone’s been here 50 years. And that’s the only arrest he’s ever had. So he’s clearly been rehabilitated. Even if you made a mistake and that is not a hundred percent deportable offense. So that standing alone by itself, post-conviction motion is one avenue he should be eligible for a bond in front of an immigration judge. It’ll it’ll be high in this climate, but he’s eligible to request it. And he likely will have it. So he’ll post bail and then he’ll have his trial date in two or three years. And we’ll talk about the defense. Now, if the post-conviction relief motion is successful, if we turn aside that plea, you know, then his deportation proceedings are over. No conviction. He’s not deportable. Let’s talk about Lucas. So Lucas, 1990 to juvenile offense before before the 1997 law change. These aren’t really considered crimes. He was a juvenile. He was a minor even when it happened. Now, granted, it was within three years of him becoming Green Card older. That could very well be a problem. So we will evaluate what those options are. What? I mean, look, 1992. The problem is there may not be a transcript nowadays. There may not be a police report. And frequently in juvenile scenarios, it’s not worked up in the same way as an as an adult offense. The onus is on us now because the government is saying we’re deportable and we have to try to reopen it. We have to try to apply for a bond. We have to figure out, well, what can we do in Luka’s a situation. He is bond eligible because I’m going to take the position that those two incidences are not a crime. Well, turpitude. They’re not even crimes because he was a minor. Now you have to look at what the case law is. He’s in Michigan. Michigan is a different judicial federal circuit. Then in New Jersey, New Jersey went to the third circuit. So I had to see how what is the crime, how has it been interpreted by the federal courts in his area to make that argument in New Jersey? I can make that argument and I would likely win. No DUI. That and more the big one. That’s that’s a problem. But he’s going to get deported because of the why the domestic violence he wanted. It was dismissed. Excuse me. He was found not guilty at trial. So what are we we’re looking at is really a 2008 DUI more than 10 years ago. Clearly rehabilitated. If if the 9 2 violations are a crime. Well, turpitude, again, I’d argue it’s not a crime because he’s because he was a minor. If I win that argument, he gets bond and then we prepare his defense. Now, if we’re successful with the post-conviction relief motion, either in DUI or on those 19 to 1992 convictions, that he’s not the portable anymore, which is why I like the post-conviction relief motion so much, because if you’re successful cases over, then you don’t need to worry about a trial in front of a immigration judge where it’s. It’s unfortunate to say, but the outcome is arbitrary. For the simple reason is what judge you’re in front of makes a tremendous amount of difference. If you’re in at the Atlanta region or in the know in Georgia, you’re screwed. It almost doesn’t matter what judge you’re going to get. You’re not getting a fair shake. It’s just the reality of the circumstances. When you look at the denial, rates up in that jurisdiction are massive. Almost everybody gets tonight even with a good case. It’s unfortunate. It shouldn’t. It really shouldn’t be that subjective. A judge sitting in California vs. a judge sitting in Florida, Texas or New Jersey. You know, the outcomes should not be that much. It should be about the law. It shouldn’t be about the opinion of the judge, political or otherwise. That’s my opinion. I’ll get off my soapbox. But Lucas nineteen ninety two, I’ll likely argue that’s not a crime. While turpitude. I will get a bond. It’ll be high because of his 2008 DUI. You know, he’s probably looking at seventy five hundred ten thousand twelve between several hundred and twelve thousand five hundred depending on the judge. Dane Foster. That’s a that’s a bigger problem. He’s not bond eligible with a conviction for possession of marijuana. Now, I might ask for the governor to give him a bond. I might look at excuse me, a pardon. Governor Murphy Murphy. I might look at a look at post-conviction relief motion. I’ll see what happened. What was the arrest? What was the conviction for? We’ve been successful where, you know, there are two people in the car and none of them have attorneys. The marijuana is in the car. They both get charged and they both plead guilty to possession. When the reality is there was only one persons, not both. So we’ve been able to make that go away. Also, if he was only arrested once, why didn’t you apply? Why was an exception to the conditional discharge program? I would file post-conviction relief motion, probably argue ineffective counsel, apply for the conditional discharge. Once. Once that’s resolved, he can get bond. So he has avenues for relief, but he’s not going to be bond eligible with that conviction. So if it’s pardoned, it’s pardoned. Now we do have to see again what happened. Can we reopen it?
Andres Mejer :So let’s talk about the the other defense strategy called cancelation of removal for those that have a Green Card. Now, there’s cancelation move for those other non Green Card holders in Spanish in slang, they call it “La Ley de Diez Anos” the ten year law. There is no real ten year law, but there is a defense to deportation. There are two more to be there, two principal distinctions. One is if you have a green card holder, it’s easier to apply and receive it. If you don’t have a green card, you got to show you have longer and the hardships are higher. Both in all three of these individuals can apply for this defense for requirements. Must be a green card holder at least five years. That’s a no brainer for any of them. They’ve did they they’ve almost all of them had it for 20 or in some cases 40 or almost 50 years to lived in the U.S. for at least seven years with some current legal status. They both got that three not convicted of an aggravated felony. No, none of these were convicted of an aggravated felony, or though possession is close, but possession is not a negative felony. However, possession with intent to distribute. That’s drug trafficking. And that is an aggravated felony. Aggravated felony. Doesn’t have to be aggravated or even a felony. It’s definition by statute. And when did that come into play? Before 1997. But after 1997, it immensely expanded the crimes that are now considered by it, by immigration as an aggravated felony. Last criteria is really do they deserve discretion in this case? Put another way, how will deportation affect their family? Who are U.S. citizens? Green Card holders in the event of deportation? Well, let’s look at Hosie Luis. Yeah. I mean, five years he’s been in the U.S., almost 50 years, been a Green Card holder. We don’t know how long, but a long damn time. This should be an easy case to prove. He has a wife with. He has he has kids. He has grandkids. So. Been here a long time. Only one arrest. You know, good moral character. Shouldn’t be a hard to prove. Really? Hardships here. We don’t have the details, but there’s more than enough information to present to work up an appropriate cancelation of removal case. Lucas Netsch, also easy case to prove for cancelation of removal in the U.S. 40 years. He’s a doctor of internal medicine. Good reputation, U.S. citizen, wife, two kids who would be harmed if he’s deported. You know, it is offensive to as juvenile and won a DUI. He’s not gonna get deported for just DUI. When you look at the factors and you look at who he is and the impact that he does and the good things that that he does in his community, those far outweigh a DUI. Done 10 years ago. So rehabilitation huge here. No, repeat. He’s not a repeat offender. So I’m not. Let’s not forget he was licensed by a medical board. That is hard to do with criminal conduct. So not a bad guy on paper. Easy case to make for cancelation of removal. Dane Foster. Well, I mean, his wife is a disabled military veteran. They have four U.S. kids. He’s the sole breadwinner for the family again. Hardships are massive here. Not hard to prove. And if we make the if we make the simple possession charge go away. Well, so does his removal. So the reason I typically go about this, I look at the post habitual leave motion first for the simple reason is if they’re detained and they’re not bond eligible. If I get the matter reopened, they now become bond. But they get a detention, too. If I’m successful and they change the outcome, they’re also no longer deportable. So that may, depending on the circumstances, be a cheaper remedy, maybe a faster remedy to get them out of detention and also to stay in the country now. But that’s because I do criminal and I do immigration. Now, let immigration do that. So most immigration attorneys will like to go for the cancelation of removal. That’s what they’re more comfortable with. They know that in each of these cases they can prove these scenarios and they’ll be successful. But the problem is in some of these, they’re going to be detained for three, four, five, six, seven months. And that’s unfortunate when perhaps with the post-conviction relief motion, we can get them out after two or three months.
Andres Mejer :Please share this video if it was helpful. Thank you for your time. This is on this mcare signing off.