Immigration Lawyer in a Difficult Time
Immigration laws are constantly changing and so is case precedent and standards of review promulgated by the Attorney General. Very little is certain especially when it comes to removal (i.e. deportation) of individuals from the United States based on prior (sometimes very old) convictions.
A woman called me back in March because her boyfriend, who is the father of their two young children, a boy and a girl, had been suddenly detained by Immigration and Customs Enforcement (“ICE”) upon the family’s return from a vacation to the Dominican Republic. The man was detained because of a guilty plea nine years ago to the crime of assault and battery on a child with injury.
I consulted with him and it became clear that he denied the allegations against him. It was also clear that he did not understand exactly the charge he had plead to back in 2010, but more importantly, it was clear that his counsel at the time did not tell him that if were to plead guilty to such a charge that his removal from the United States would be “mandatory”. In March of that year the U.S. Supreme Court held that if it is clear that a guilty finding in criminal court would render a person to be a “mandatory removal”, that counsel must advise the client of the same. In short, it must be crystal clear to a person pleading guilty that deportation would be the end result of having a finding of guilt on their record. Failing to advise in such a way would be a depravation of the individual’s Sixth Amendment rights.
With my client facing imminent removal we went to the Haverhill District Court and argued ineffective counsel based on the failure of plea counsel to properly advise him of the immigration consequences of his guilty plea.
The Haverhill District Court (see attached) granted our motion for new trial based on ineffective assistance of counsel. The Court consulted numerous factors, including the fact that my client testified (via affidavit) that he would have taken the 2010 to trial no matter the odds if it meant avoiding a guilty finding and the deportation that would follow. It seems like the Court gave significant weight to the fact that even a “Hail Mary” chance of succeeding at trial and avoiding a judgment of guilt was enough.
Our next move is to reopen EOIR proceedings to stay removal and terminate proceedings because the underlying finding of guilty has been vacated. My client still has to fight the 2010 charges, but the removal that is based on the finding of guilt must now in all likelihood be terminated.