Removal/Deportation Defense ~ Post Conviction Relief ~ Adjustment of Status
Naturalization and Citizenship ~ Asylum Relief

 


Immigration and Criminal Defense – San Francisco

The complexities of representing non-citizens today require lawyers to be competent in both criminal and immigration law. By combining both areas of law, such an attorney can more effectively represent non-citizens facing removal, those charged in the criminal courts, those wishing to become lawful permanent residents, and those wishing to become U.S. citizens through naturalization.

Removal/Deportation Defense:


Individuals facing removal or (deportation or exclusion) in the immigration courts must be familiar with both immigration and criminal law. An experienced immigration and criminal defense attorney will consider filing in the criminal courts one of more of the motions below in addition to the common defenses available in the immigration court. For example:

  • A Motion to Terminate Immigration removal proceedings can be filed and granted by the Immigration Judge when the criminal conviction(s) that provide the basis for the immigration deportation (removal) proceedings, were vacated, dismissed, or modified. That means the removal case is over and the respondent can remain in the U.S. without being removed, can keep his or her green card, and can travel in and out of the U.S. thereafter without fear of being removed.
  • Cancellation of Removal is an important legal remedy for both permanent and non-permanent residents who are in immigration court removal (deportation or exclusion) proceedings. This form of relief is available for aliens who have resided continuously in the U.S. for at least five (5) years as lawful permanent residents and have resided continuously in the U.S. after lawful admission for at least seven (7) years. In addition, a lawful permanent resident must not have been convicted of an aggravated felony. If granted by the Immigration Judge, then that person can remain in the U.S., keep their green card, and travel in and out of the U.S.

  • If you are not a permanent resident, then cancellation of removal as a non-permanent resident may be available to you. This form of relief allows aliens who have entered the U.S. illegally (without inspection) to adjust their status to become U.S. permanent residents in Immigration Court removal proceedings. In order to qualify, a non-resident alien must have resided in the U.S. continuously for ten (10) years in any capacity. You must establish good moral character during that 10-year period, which includes a strong work history in the U.S. during those years. You must also demonstrate that your removal would result in exceptional and extremely unusual hardship to your qualifying relatives residing in the U.S. While these hardship requirements are very substantial, aliens who have U.S.C. spouses, children and parents residing in the U.S. may qualify as hardship relative.
  • Use of waivers is a powerful tool against excludability, inadmissibility, and deportability (removability). Those waivers include: 212(c) for aggravated felonies, 212(h)- for extreme hardship, and 212(i) for fraud. Section 212(c) of the I.N.A. provides for extraordinary relief even from aggravated felony convictions, which occurred prior to April 1996. This all important waiver is available to eliminate deportation for even aggravated felony conviction(s) if: 1) The conviction(s) was sustained (plea of guilty or no contest) before April 24, 1996 2) You were a lawful permanent resident at the time of the guilty or nolo plea 3) You did not serve more than five (5) years in state prison for any one conviction, and 4) You have at least seven (7) years of continuous lawful residence in the U.S. from the date the removal proceedings commenced (receipt of the Notice to Appear in immigration court).

    Post-Conviction Relief:


    1. Motions to Reduce Felony Convictions to Misdemeanors are very effective for citizens and non-citizens. These motions can eliminate the adverse consequences of felony convictions for all purposes. If granted, winning such a motion sometimes eliminates the need to report the conviction when applying for jobs. Reduction can sometimes eliminate the adverse immigration consequences of felony convictions that could have been used for removal/deportation purposes.

    2. Motions to Modify Conviction(s) are brought for non-citizens whenever their prior criminal conviction(s) are classified by the U.S.C.I.S. as “aggravated felonies”. Such convictions may result in permanent removal (deportation) from the U.S. By modifying the sentence, for example, from one year to 364 days, we can change the classification from an aggravated felony to a simple felony, thereby making the person eligible for cancellation of removal and other forms of relief in the Immigration Court.

    3.A Motion to Expunge Prior Convictionsis important to citizens and non-citizens alike. Motions to expunge criminal convictions can be granted only after successful completion of probation. When granted by the court, the conviction does not have to be disclosed when asked in employment applications: ..."Have you ever been convicted of any crimes?" You can answer "no" to this question. However, the conviction does remain on your criminal record and does not eliminate all adverse immigration consequences. These motions are effective in establishing the requirements of good moral character and rehabilitation for those aliens petitioning for lawful permanent residency and applying for naturalization. Expungements differ significantly from motions granted because a person was found to be factually innocent of the charge(s) they were arrested for or motions to vacate (see below).

    4. A Motion to Destroy Records of Persons Factually Innocentmay be brought in any case where a person has been arrested and/or prosecuted but where no conviction occurred. This motion requests the court to make a finding that the person is factually innocent of the charges for which he or she was arrested. If granted by the court, then the court orders that any reference to the arrest record shall bear the notation “Exonerated” and shall not be admissible as evidence in any action. In addition, destruction of all entries and notations pertaining to the arrest record shall be accomplished by permanent obliteration. The record shall be prepared again so that it appears that the arrest never occurred. If there are no other entries contained in that person’s criminal history record other than the arrest, then the entire record shall be physically destroyed. This motion is different from an expungement of your criminal conviction following successful completion of probation. Here, the actual record of the arrest itself is physically obliterated from all government’s records so that it appears the arrest never occurred and therefore, cannot be used against you. This motion is particularly helpful for non-citizens seeking to adjust their status, defend themselves in removal proceedings, and to establish good moral character when applying for a visa, lawful permanent residency and naturalization.
    Once the criminal court judge has found the person factually innocent, then the record of his or her arrest is destroyed and the arrest shall be deemed not to have occurred and that person may answer accordingly any question relating to its occurrence.

    5. Motions to Vacate: The filing of a motion to vacate criminal conviction(s) is among the most important and effective ‘tools’ an experienced immigration and criminal defense attorney has to defend a non-citizen in immigration court removal (deportation) proceedings. This motion to vacate is filed in the California state court where the criminal conviction occurred. The grounds for filing this motion arise when the non-citizen was not adequately informed by the judge about the adverse immigration consequences of being convicted of the crime for which the non-citizen has pled guilty or no contest. This motion can be brought even many years after the non-citizen was sentenced. If the criminal conviction(s) are vacated, then the underlying immigration removal proceeding can be terminated (closed) because there would no longer be criminal conviction(s) upon which the government could rely to deport that person. In addition if conviction(s) are vacated, then that person can become eligible for lawful permanent residency and naturalization.

Adjustment of Status:


Adjustment of status refers to the process of becoming a lawful permanent resident. The most popular form of adjustment is family based. You as the beneficiary must have a qualifying relationship with a U.S. citizen or lawful permanent resident.

To promote family unity, immigration law allows U.S. citizens to petition for certain qualified relatives to come and live permanently in the United States. Eligible immediate relatives include the U.S. citizen’s:

Spouse

Unmarried child under the age of 21

Parent (if the U.S. citizen is over the age of 21)


Immediate relatives have special immigration priority and do not have to wait in line for a visa number to become available for them to immigrate because there are an unlimited number of visas for their particular categories.

Eligibility in most cases requires that you have entered the U.S. lawfully. That is, you had a valid visa and were inspected and admitted at a point of entry upon arrival into the U.S. The most common family based categories or relationships are spousal and parent-child. If a U.S. citizen spouse or parent sponsors you, then you may qualify as an immediate relative for whom a visa is immediately available.

Adjustment of status is accomplished when the sponsor files an immediate relative petition (Form I-130) and an application for adjustment of status (Form I-485) with the immigration service (U.S.C.I.S. formerly the I.N.S.) for a beneficiary who is then currently residing in the U.S. The petition and application require various supporting documents and records to prove the relationship and to establish eligibility. The Forms I-130 and I-485 may be filed together as an ‘adjustment package’. This process is now taking approximately 4-6 months in most straightforward cases.

Importantly, adjustment of status can also be applied for during removal (deportation) proceedings as a defense in those proceedings. You must qualify and be otherwise eligible as discussed above. You must have entered the U.S. legally unless you qualified for amnesty and timely filed for permanent residency (245i). When an application for adjustment is filed in removal proceedings, the Immigration Judge (I.J.) and not the immigration service will decide whether or not to grant your adjustment. Your attorney in the removal proceedings will prepare and file your adjustment package in immigration court. The attorney will then present evidence to the IJ at your individual calendar hearing in support of your eligibility. If the I.J. should approve your adjustment, then you will become a lawful permanent resident and the removal proceedings will be terminated.

Naturalization and Citizenship:

Naturalization is the process whereby a lawful permanent resident who has resided in the U.S. for five (5) or three (3) years in the case of marriage to a U.S. citizen, applies for citizenship.

Many legal residents have decided not to apply for citizenship even though they are eligible. Those permanent residents who have not yet applied for citizenship even though eligible, should carefully consider that in today’s world, loss of their permanent residency and removal from the U.S. is much easier and more likely to occur than ever before. Therefore, if you are a permanent resident, you should consult with a competent immigration lawyer to discuss your individual case in order to determine if you are eligible.

In addition to the residency requirements, there is also the requirement that a resident seeking to become a U.S. citizen must demonstrate good moral character. In the case of a resident immigrant with prior criminal conviction(s), establishing good moral character can be difficult. A knowledgeable immigration attorney and criminal defense attorney will file motions in the criminal courts to vacate, modify, or expunge those prior conviction(s) so they no longer can be used by the immigration service to deny naturalization on lack of good moral character grounds.

If a non-citizen is convicted of crime(s), then a criminal and immigration attorney can review those convictions to determine if the client is eligible to apply. If not, then such an experienced attorney can obtain post conviction relief of those conviction(s) in the criminal court thus making the client eligible to apply for naturalization with USCIS.

Asylum Relief:

Asylum is an important available defense in removal or deportation proceedings for aliens inside of the U.S. who have suffered from persecution or torture in their home countries. In many cases, aliens who have been ordered into removal proceedings may have had their asylum applications previously denied by the U.S.C.I.S. (United States Citizenship and Immigration Services).

An individual who has been previously denied asylum and placed in removal proceedings, however, can file another application for asylum in immigration court through a competent immigration attorney. If the application is granted by the immigration judge ( IJ ), then that person will be granted relief and allowed to remain in the U.S.

A person granted asylum is entitled to obtain an employment authorization document (E.A.D.) and may even be able to adjust status to permanent residency after one year of being granted asylum. Obtaining asylum relief is the easiest of the three forms of asylum relief.

It is important to have a competent immigration asylum and removal attorney to represent you in such matters. An experienced attorney will be able to prepare and present your case by establishing each of the required elements with competent corroborating evidence for the particular type of relief sought. The attorney will also assist in establishing the alien's credibility, an important factor in an immigration judge's decision as to whether or not to grant asylum relief.


Stephen Eckdish is an active member in the following organizations:
American Immigration Lawyers Association (A.I.L.A.)
Association of Trial Lawyers of America (A.T.L.A.)
California Attorneys for Criminal Justice (C.A.C.J.)

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E-mail:Stephen Eckdish
649 Mission Street
5th Floor
San Francisco, CA 94105
Telephone: (415) 776-1633
Fax: (415) 974-6745


The responses and information are intended to be general and should not be relied upon for any specific situation. For legal advice, consult an experienced attorney. Nothing on this or associated pages, documents, comments, answers, e-mail, articles or other communications should be taken as legal advice for any individual case or situation. All contents copyright © © Stephen Eckdish, Attorney at Law 2014. All rights reserved.