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This 'discretion'  is the bane of all aliens in deportation proceedings.

 

 

In the criminal justice system, when the accused establishes that the prosecution has failed to prove his guilt beyond a reasonable doubt, the accused is entitled to be acquitted and released from jail if in custody. The judge cannot say “You may be entitled to an acquittal, but I will deny you acquittal and send you back to jail as a matter of discretion.” 

But in deportation proceedings, the alien may have established that such alien is statutorily eligible for relief from deportation such as cancellation of removal or waiver, meaning the alien has met all the requirements of the statute for the particular relief sought, but the Immigration Judge can still tell the alien “You may be eligible for relief but will I deny you relief as a matter of discretion and order you deported.” 

It is this “discretion” thing that is the bane of all aliens in deportation proceedings. As we have been saying, once you give an adjudicator discretion, it is susceptible to abuse.

We recently won three deportation cases in a row before the Board of Immigration Appeals which reversed an Immigration Judge’s decision ordering the deportation of three Filipinos because the Board agreed with our argument that the Judge abused his discretion. 

This “discretion” thing is not in the immigration law itself. The Board promulgated it. The Board, which reviews all decisions of Immigration Judges brought to it on appeal, held that in determining eligibility for deportation relief, the Immigration Judge should consider the positive and negative factors in the alien’s case and make a complete review of all the factors and balance them.

 

POSITIVE, NEGATIVE FACTORS

The positive factors to be considered are: (1) family ties within the U.S., (2) residency of long duration in this country, (3) evidence of hardship to the respondent and family if deportation occurs, (4) service in the Armed Forces, (5) history of employment, (6) existence of property or business ties,  (7) existence of value and service to the community, (8) proof of genuine rehabilitation if a criminal record exists, and (9) evidence attesting to the alien’s good character.

It is heartening to see the highest court in the land holding the government to a common-sense standard.  

 

 

The United States government is very unforgiving when it comes to drug convictions.  This is especially true for non-citizens.  What might be considered minor offenses, such as simple possession of a controlled substance, can result in an alien being inadmissible and deportable from the United States.  In most instances, there is no waiver available to overcome the banishment.  Therefore, many non-citizens with drug convictions are permanently banned from the United States.  

However, the Supreme Court recently issued a decision that ameliorates this draconian result for some immigrants.  Illicit trafficking in a controlled substance is an aggravated felony.  A noncitizen convicted of an aggravated felony is deportable.  He is not eligible for any discretionary relief which means he cannot get a waiver of that ground of deportability.  Noncitizens who have never had a green card may be eligible for some discretionary relief only if their aggravated felony conviction is non-drug-related.  In Moncrieffe v. Holder, the Supreme Court held that if a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration (money) or more than a small amount of marijuana, it is not an aggravated felony. 

In coming to this decision, the Court employed the categorical approach, which means that the statute defining the crime of conviction is examined to see whether it fits within the generic federal definition of a corresponding aggravated felony.  The state offense is a categorical match only if the conviction of that offense necessarily involved facts equating to the general federal offense.  The court presumes that the conviction rests upon nothing more than the least of the acts criminalized before determining whether those acts are encompassed by the generic federal offense.  It does not examine the facts underlying the case before it.  

Once you are convicted at a bench trial (no jury) or a jury trial, you have the right to appeal that conviction.  A Notice of Appeal must be filed with the court 30-60 days following the judgment. This timeframe and all the timeframes that govern the appeals process require strict compliance. A final judgment is a sentence, a final conviction or an order granting probation, an insanity commitment, a mentally disordered offender commitment or an addiction commitment. 

You may file a “general notice of appeal,” which does not require that you enumerate any specific issues. Other than sentencing and 4th Amendment issues, a guilty plea waives appellate review of issues except those affecting the legality of the plea or the trial court’s jurisdiction. But keep in mind, that the trial court must first issue a certificate of probable cause in order to prevent frivolous appeals.

A certificate of probable cause is a written statement executed under oath or penalty of perjury showing constitutional, jurisdictional or other legal grounds for appeal. This statement and the corresponding certificate of probable cause are only required in adult California appeals--misdemeanor or juvenile court proceedings require this. 

Capital cases (cases where the defendant is sentenced to death) are appealed automatically and do not require that the defendant and the defense attorney take any action. As with all appeals from the Superior Court, you must file the required statement within 60 days of the entry of judgment. Within 20 days, the trial court must grant or deny the request. Unless your statement is clearly frivolous and does not comply with applicable law, the court abuses its discretion if it fails to issue a certificate of probable cause.

What if you fail to meet the 60 day deadline for felony cases and 30 days for misdemeanor cases? If that occurs, you must ask the court to grant you relief from your default. There are primarily 2 grounds upon which the court will grant relief from late notices. The trial attorney failed to perform 1 or more duties relating to the appeal and the principle of constructive filing.

Yes! Any party, whether in a civil or a criminal case, in an application for an order has been made to a judge, or to a court, and refused in whole or in part…. may within 10 days after service upon the party, has a legal right to have that order reconsidered. In California, this is statutorily governed by Code of Civil Procedure, Section 1008. The motion for reconsideration must be filed within 10 days to the same judge or court who made the order and must be based upon new or different facts, circumstances, or law.

 

I had a client recently who had four prior petty theft criminal convictions. Three of the four judges or courts in four different Los Angeles Superior Court locations granted our motion to expunge the criminal conviction.  Based on new factual information, I filed a motion for the judge who denied our fourth motion to dismiss a prior conviction to reconsider his decision.

 

After a very detailed motion based on new factual and legal grounds and arguments from both the prosecution who still affirmed their prior objection and the defense, the judge after taking the matter into submission granted my client’s request to expunge his last remaining criminal conviction.  It was critical that my client’s criminal record be “cleaned,” since he was just recently terminated from his job.

 

Many of us are aware that employers have a legal duty to exercise due diligence in the hiring process.  That duty may be violated if an employer hires someone they knew or should have known in the exercise of reasonable care was dangerous or unfit for the job. Employers are well aware that they could be sued and that courts and jurors alike have awarded large monetary damages for “negligent hiring” in cases where the employer could have avoided the harm by a criminal record check.

 

Expungement/Dismissal

 

Benefits: Expungement is a general term to describe the removal of information from a criminal record by deleting or sealing the information.  It allows an individual to answer “no” to a potential employer or other background checks if he/she has been convicted of a felony; allowing eligibility for professional certificates and licenses; allowing eligibility for student loans or government assistance such as housing.

 

Who qualifies: Individuals who have been convicted of a misdemeanor or felony for more than one year (excludes sex offenders); those who have fulfilled their probation; those who have completed the terms and conditions of their probation; those found “not guilty” or had the charges against them dropped.   

 

In some situations, if you were convicted on a misdemeanor and are still on probation, an attorney may file with the court to request early termination and have the conviction dismissed.  If you were convicted of a felony and are still on probation, a petition should be filed with the court to request an early release from probation in addition to having the conviction reduced to misdemeanor and dismissed. 

 

What if you lied about your criminal record?  You have the job but let us assume management finds out you were less than truthful about a prior conviction or possibly losing your professional license because you failed to disclose a conviction.  An administrative hearing is the venue used. 

 

What should you do if an investigator from a state licensing agency or human resources representative contact you?  Investigators sometimes lull the employee into a false sense of security. Investigators call you in for an “informal” conference to get your side of the facts.  The “informal” conference may seem so easy that the employee feels that all he/she has to do is tell the truth and fails to consider bringing in an attorney in these types of investigatory settings.  But what you do not know is that a senior manager is conducting the meeting and the interview is recorded and a written report will be prepared.  

 

This scenario is similar to when a detective calls you in to the police station to tell your side of the story.  Feeling comfortable that you can handle it, you go in without an attorney.  The detective tells you all you have to do is be honest and before you know it – a criminal complaint has been filed against you.  I can not begin to tell you how many clients forget what they know about their “Miranda” rights.  Simply stated, their right to “shut up” and let your attorney do the talking.  Same idea works in the employment administrative scenario.  

 

The senior manager will then forward the case to legal counsel who will contact law enforcement.  Having an attorney attend the meeting reduces the chance that your comments may be misinterpreted. The best opportunity to resolve a case favorably comes at the investigative stage. More importantly, an attorney may point out mitigating factors that addresses your employer’s concerns.  

 

Individuals who have sealed or expunged their records have saved them from losing their jobs, to obtain professional licenses, or to honestly check the “no” box, in certain circumstances, when asked if they have been convicted of a crime. In a tough job market, any advantage to you brings you closer to getting a job.

 

This is a  motion that must be prepared, filed and served on all necessary parties within a very short amount of time, an experienced attorney in these  type of motions is required.