Andres Mejer: Welcome to the English version of our weekly live program. Para Ser Legal to be legal. So big changes. USCIS is making it harder than ever to prove the your a good moral person. On October 25th, 2019, Attorney General decided two cases that will affect every single type of application either in immigration courts or in USCIS, the agency that adjudicates, for example, Green Card applications. So the first case is matter of Castillo Perez, where the attorney general decided. If you have two or more, DUI’s? There is a rebuttable presumption that you aren’t a good moral person. Now nearly every petition has a good moral person requirement. I don’t care if it’s a Green Card. I don’t care if it’s asylum. I don’t care what it is in almost everyone. Either you have to prove that you deserve to get it, or that the government has to exercise discretion to grant it to you. So it’s either directly stated or it’s indirect. But in every scenario, if you have negative factors like criminal convictions, you can be disqualified. We’re hearing the attorney general have said two or more. Do you guys rebuttable presumption that you’re not a good guy and you don’t deserve it? The second case is the matter of Thomas and Thomson, which tries to limit post conviction relief. So here what is post conviction relief? The post conviction relief is where you’re. You’ve passed the time to appeal a criminal conviction and you’re going back to court and saying, listen, there was a problem. And because of that problem, I should never have been convicted. That’s in simple terms. So what was the attorney general saying is, look, that term of imprisonment or sentence generally refers to the aliens with the immigrants original sentence, irrespective of later changes. So post sentencing orders are only relevant if they are based on substance defects in the criminal proceedings. So you were convicted of a crime, had immigration consequences. You went later on, found counsel re-opened. It made those, made the conviction go away. Well, attorney general is saying it doesn’t actually go away unless it was a subsative defect. So you can’t and it doesn’t define the immigration consequences as a subsative. Now, this is where creative lawyers matter because a creative attorney will we’ll take a look at situation and we’ll find a subsutive defect. Look, not every case can you reopen, but let me give an example. You first come to the country, you don’t speak English. You go to a Wal-Mart, you get accused of shoplifting. They say you bought some things and you didn’t buy other things. You go to court, you’re not sure what’s going on. There’s no translator. You don’t have an attorney. You don’t even know you have the right to an attorney.
Andres Mejer :But somebody tells you, hey, it’s 100 bucks. You pay 100 dollars for the fine and don’t worry about it. It goes away you go. You plead guilty. You don’t go to you don’t get you don’t go to jail. You know, you pled guilty. You paid 100 dollars. You know, can think, oh, my God, I don’t I don’t have a problem.
Andres Mejer :We’ll leave it years later. You married a U.S. citizen. You want to apply for legal status and you’re told her shoplifting is a crime of Moral turpitude, that’s that’s a big deal. What do you mean you didn’t know? So you get an attorney and attorney goes, reopens it and makes the makes the conviction go away? Well, because you initially pled guilty and if the in if the reopening wasn’t for a substance defect, then you’re still convicted for immigration purposes.
Andres Mejer :Now, in the example I provided, you didn’t have an attorney and you never translator. So your plea. Was that knowing and voluntary because you didn’t understand what was going on and we’ve done a fair number of those and we’ve been successful in most of them, not in every one. Because sometimes the facts are not the way the client calls it. So first we ordered the discovery, we ordered the transcript and we review it. We asked the client what happened. They would review the facts and see if those things match. And in the transcript we usually show was air translator or not. Was there an attorney or not? You know,. was he arrested on Friday? Pled guilty on Monday? OK. That’s a presumption that there wasn’t an attorney because it doesn’t happen that quickly. It just means that it’s more important than ever to have a good attorney. If you’re considering reopening a conviction, make sure you have an attorney filling both immigration and criminal law. Call us if you have any questions. We’ll give you a no cost consultation. We’ll evaluate your options. You’ll at least walk away knowing more than what you did before you walked in.
Andres Mejer :Let me give you an application of this problem so we could talk about George. George is not his real name. He came to the United States in 2007. He met Maria in 2009. They’ve been living together ever since. They’re not married, but they have three children born in United States, ages 10, 6 and 3. So the two youngest have severe disabilities. It’s three. Three daughters. The middle child has had two surgeries in years. She’s had tubes placed in and she’s had constant ear infections. She has ear loss. She’s allergic to eggs, Tylenol, pollen and a host of other stuff. She gets help at school from a team of doctors and therapists trying to help her. You know, her hearing loss affects her ability to speak and her allergies. Well, there could be life threatening and almost were. Now, the youngest daughter, who’s three, unfortunately doesn’t speak. She only has about two words, mama and papa. In July, George was accused of sexual molesting a 13 year old girl, specifically of just touching her inappropriately. There’s no penetration, but still, the touching is bad enough in and of itself. He was arrested. The charges were second degree, first degree, third degree. I mean, U.S looking at 20 years jail time or more. But within days it became clear that the government was having problems with its case. He had alibis for each. Well, not each. There was only one incident that the girl alleged he was not at the time and place that she said he was at with her. The government could not prove its charges. Now, given the severity of these charges, it’s difficult to get in criminal court to call it bail in immigration and call it bond. But the idea is the same. Pays some amount of money or security in exchange for freedom. If he doesn’t show, he loses the money paid or the security that was paid for it. Now, in these type of cases, it’s not uncommon to get bail or bond in the in the criminal context for hundreds of thousands of hours or do not get any bail at all. George was released on his own recognizance, meaning he had no bail whatsoever. The judge was not concerned about him being a danger to the community, the state felt that the prosecution would likely not be able to prove its case. And the prosecution did not object. He was ROR. But he didn’t get released. No, he got picked up by ICE. They don’t care about the facts. They don’t care about what the proofs are or not. They care. Are there allegations that he did horrible things? There are. Because of those allegations alone. He was found to be a danger to the community and not released under any circumstances. Forget high bond, no bond whatsoever. In the meantime, criminal charges continue. So remember, he was arrested in July. Here we are now in December. He’s in ICE custody, but he’s facing charges in criminal court. So ICE has to transfer him to court. Well, they failed to do that. And because of that, his case was adjourned for a month. Now, given the weaknesses of the government’s case.
Andres Mejer :Normally his criminal defense attorney, we would have advised don’t plead guilty. Matter of fact, don’t plead to anything. Don’t take any alternative position. Insist I’m going to try. If the state can’t prove it, they’re going to have an obligation to withdraw it or you file a motion to dismiss. And you make the charges go away. But that would take months and months and months, potentially six months or longer, during which he still had to have a trial in immigration and facing the the accusations. Well, just because he was accused of a crime, he was not released now because there’s a good moral component of every defense strategy like this to you. But as you know, the cancelation of removal, if he didn’t apply for PTI, he might become he might be deported. He might be found to not be a good moral person. So he applied for PTI. He was approved to PTI, but it hadn’t been adjudicated yet because the government didn’t present it. We filed for a bond motion. We appear judge calls out sick. They give us a new judge who happens to be the supervising judge, the immigration courts supervising. I think she’s younger than I am. She did review the file. She didn’t look at the application.
Andres Mejer :She just flat out denied it. Oh, he was charged with sex abuse. Not a good moral person. Police reports are inherently reliable. Her words and because of that, he’s a danger to the community. And we’ll throw in. He doesn’t have much likelihood of success on the merits again, because she didn’t review a single document, even though we talked about the damage. You know, the hardship to two children who have disabilities. She ignored all that and said he doesn’t have much like a success on the merits is likely. She said that because of the crime. She didn’t care that he was there was even in PTI. She just felt like he was charged with the crime. That’s all that matters and gave him a trial date in less than two weeks. That’s the ridiculous part.
Andres Mejer :I mean, if not releasing them under any condition, was it ridiculous enough giving the trial date in less than two weeks and having to prepare all the proofs, the briefs, preparing witnesses, prepared trial briefs? It’s and emotions eliminate the need to be filed. It was just an abuse of power. No question it violated his due process rights. No question that George was prejudiced for the lack of time. Yeah. This wasn’t the judge’s case. She didn’t know anything about it and she promised to keep the case. So there we go. Two weeks later, actually, less than two weeks. 13 days later, we’re back in front of a courtroom. And she tells, you know, she had denied our motion to continue. That we made early two weeks before, almost two weeks before she had our written motion, which we created a record. I told her flat out I was going to appeal her decision. I was looking forward to that appeal, in fact, because it is an indefensible position that she took. And I made a strong oral argument before I wrote the motion. But she took great joy in telling me, Counselor. I denied your motion today. So you’re going to go to trial, but not with me. She transferred back to the original judge. We were before the judge. She had looked at some of the evidence and just said, Counselor, although I’m not going to prejudge your case, I haven’t heard any testimony.
Andres Mejer : I just perused the voluminous documents you provided with a very short period of time, said, I will commend you because there are attorneys that have a year and don’t put together as much as you did in less than than two weeks. But here’s the issue I’m going to have with your case. It appears like he’s may be in your 10 years. It appears like this that there is hardship to the children that might pass the threshold. It appears he’s not convicted of a disqualifying crime. But how am I going to exercise my discretion when I’m only supposed to do it? First of all, in a limited amount of time and there’s only 4000 of these a year and it’s supposed to be granted sparingly. How am I going to approve a case where somebody was charged with sexual abuse of a child? I said, well, your honor, those charges have been amended to child endangerment in the fourth degree.
Andres Mejer :And he did not plead guilty. He was not indicted. And he’s been approved to the pretrial intervention program, which means in a year those charges will be dismissed as long as he completes the program. She said, but, counselor, how can I approve it? When I’m supposed to use my discretion sparingly. When he was charged with a felony involving children. And our response was, your honor, you can release him. Bond him out, a year later, he finishes probation and the charges are dismissed. And then you no longer have that problem.
Andres Mejer :Well, the judge didn’t like my response, but it was going to this good moral character component. So what William Barr did is say here are examples where. If you find he’s convicted of two or more, DUI’s, he is de facto not a good moral person and you should not approve his case. And that some that is an unfortunate scenario, but that’s what’s going on. Now, George. Well, George is a trial date in March. Before then, he’s going to be accepted into the PTI program. We’re going to make another bond application. And the hope is he’s going to be released. And by the time he gets his trial, there won’t be March because the moment he gets released, he goes into the non detained docket his PTI would have completed and he will have been approved. Now, if he’s not released, then we’ll go we’ll have a trial date. He’ll already be in the PTI program. And if the judge denies him, because he’s not a good moral person because of the allegation. Well, we have a really good appealable issue.
Andres Mejer :Thank you very much. I’m Andrés Mejer.Thank you for joining us. Please subscribe to our channel if you have any questions. Give us a call. We’re here for you.