Case approved in immigration court for 17-year green card holder with felony drug conviction

Our office recently worked on a case for a client that was detained in the custody of the Texas Department of Homeland Security (TDCJ) serving a 13-year sentence for a controlled substance offense that happened to be a Lawful Permanent Resident (LPR).

Many people come to our office thinking that LPRs cannot be deported or that the sympathetic facts of a case can stop deportation. Unfortunately, the harsh reality is that an LPR can be subject to deportation for any number of reasons (for being convicted for a specific type of crime, for abandoning their status in the United States after living abroad, for having obtained lawful status fraudulently, etc.) and unless then qualify for a specific form of relief from removal, they can be deported. In this particular case, we had a LPR client that had obtained status since 2001 but had several offenses relating to driving while under the influence of alcohol (DWIs) from 1993-2008 and a particularly serious offense for possession of cocaine from 2008 (reduced from a drug trafficking offense).

Given that the client had a conviction for a drug related crime (other than possession of marijuana of 30 grams or less), he was considered deportable and could be removed if he didn’t qualify for any relief from deportation. Fortunately enough, in this case, the client met the strict requirements for cancellation of removal for lawful permanent residents (COR). To give you an idea of what this is all about, LPR Cancellation basically allows a green card holder to remain in the U.S. if they can show: 1) that they have resided lawfully in the U.S. for at least 7 years after being admitted in any status, 2) they have had a green card lawfully for at least 5 years, and 3) they have not been convicted of an aggravated felony. In addition to these legal requirements, the client must also show that they deserve a chance to remain in the U.S. as a matter of discretion (Here the immigration judge will look at things like how long the alien has lived in the U.S., family ties, property ties, efforts to rehabilitate, community service, gainful employment, hardship if deported, country conditions in the client’s home country, etc.)--this is where those sympathetic factors come into play, but only after the initial criteria are met.

The difficulties that arise in these types of cases mostly involve the specific facts of the criminal charges, the dates when the criminal activity occurred, and what steps the client has taken to rehabilitate. For example, in showing the 7 years continuous residence in the U.S. (mentioned above), many times a client will not qualify because they have committed a crime within that time frame and their time is “cut off.” Known as the “stop-time” rule in deportation proceedings, in certain cases, a client’s time needed to qualify for cancellation of removal will be cut off if they have a crime related to a controlled substance, a crime of “moral turpitude,” etc. In this case, there was a stop-time issue because the drug charge fell within the first seven years of the client having obtained LPR status, but we were able to use his previous lawful admission in B-2 visitor status (before he obtained his green card) to qualify.

In this particular situation, it was a very tough battle with TDCJ and the Government for this case to be approved. First, the client had a lengthy and complicated criminal history, which included several years in which the client was considered to have been a fugitive of justice. On the other, the client was actually serving his criminal sentence in TDCJ while the deportation proceedings began (and he was even paroled while the case was being completed in immigration court!) In some deportation cases, the Government attorney at trial will agree to grant particularly sympathetic cases; however, because of the specific details in this case, we had to fight until the very end.

After several hearings and a trial that lasted a full day and a half, we have been able to achieve a favorable result for this client, but not every case is the same. For one, these cases require diligent and zealous advocacy from the attorney to prepare the client and witnesses for not just the questions that he or she will ask, but also the tough questions that they will be asked by the judge and the Government attorney as well. Credibility is incredibly important in immigration court, as facts and consistency can either make or break a case. In this case, many hours were devoted to make sure that the client and his family understood that testimony was going to cover difficult topics and that the Government’s job would be to undermine all the client’s efforts to change his life for the better. Since no two cases are the same, for these types of complicated cases it is always a good idea to consult with a reputable and diligent immigration attorney. This is not rocket science but it does require hard work, patience and close attention to detail (a working knowledge of both the law and the regulations). After almost a year of hard work I am so happy as both an advocate and a human being that my client has now been given a second chance to make his life in the U.S. and if you are reading this and in a similar situation, I hope the same for you as well.

PLEASE NOTE THAT THIS POST IS FOR ILLUSTRATIVE PURPOSES ONLY AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE NOR TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP.