Tandap v. Barr

2020-09-08 in Cases Won

Tandap v. Barr
825 Fed.Appx. 391 (7th Cir., 2020)
Seventh Circuit Court of Appeals

On September 8, 2020, the Seventh Circuit Court of Appeals rendered a favorable decision on a Petition for Review for a Cameroonian citizen, represented by Christine P. Varghese of Chicago Immigration Advocates Law Offices, whose claim to seek asylum, withholding of removal, and and protection under the U.N. Convention Against Torture was denied by the lower court.

Ms. Varghese was hired after Mr. Tandap was ordered removed by the Immigration Court and Board of Immigration Appeals. Ms. Varghese filed a motion to reopen his immigration proceedings before the Board of Immigration Appeals in order to apply for asylum, withholding of removal, and protection under the U.N. Convention Against Torture (“CAT”) based on the Cameroonian government’s growing mistreatment of the Anglophone minority group to which he belonged. Attorney Varghese successfully persuaded the Court that the Board of Immigration Appeals made serious reversible errors in its decision – namely that the Board improperly used the incorrect standard of proof and improperly ignored the expert report as well the client’s arguments for CAT protection.

Among other reasons for reversing the Board of Immigration Appeals, the Court said in conclusion:

"the Board erred by ignoring Tandap's claim for relief under the Convention Against Torture. In his motion to reopen, Tandap highlighted this claim as the “first and foremost” form of relief upon which he sought reopening. A motion to reopen under the Convention “is distinct from an asylum claim and deserves independent substantive consideration.” * * * The failure to provide any rational explanation for denying this claim is an abuse of discretion."

Chicago Immigration Advocates Law Offices continues to demonstrate, through the efforts of Ms. Varghese, that no matter how complex your case might appear to be, if any lawyers are going to win your case, it will be Chicago Immigration Advocates Law Offices.

Jimenez-Aguilar v. Barr

2020-07-31 in Cases Won

Jimenez-Aguilar v. Barr
977 F.3d 603 (7th Cir. 2020)
Seventh Circuit Court of Appeals
*Precedential Case

On July 31, 2020, the Seventh Circuit Court of Appeals ordered that a new hearing be held for a Honduran citizen, represented by Carla I. Espinoza of Chicago Immigration Advocates Law Offices, whose motion to for a new hearing was denied by the Board of Immigration Appeals.

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Jimenez after the Board of Immigration Appeals denied his motion for a new hearing. Ms. Espinoza filed a Petition for Review with the Seventh Circuit Court of Appeals, asserting that his prior counsel rendered “ineffective assistance of counsel” when he discouraged Mr. Jimenez to seek asylum, despite the fact that his mother previously had been granted asylum. Ms. Espinoza argued that not only was Mr. Jimenez’ prior attorney ineffective, but also that the Immigration Court failed to notify Mr. Jimenez that asylum or withholding were potential benefits under the regulations when he expressed that he would be harmed if returned to Honduras. He asserted that he feared gang violence because his mother received death threats from gangs as a result of her position on a community council.

Ms. Espinoza persuaded the Seventh Circuit that where someone like Mr. Jimenez articulates a recognizable basis for asylum, (1) Immigration Judges have a mandatory duty to advise non-citizens of the availability of asylum and withholding of removal; and (2) where the Immigration Judge fails to do so, the non-citizen is entitled to a new hearing.

The Court said as follows:

"If Jimenez-Aguilar had expressed only a fear of generalized violence in Honduras, as the Board believed, the IJ would not have needed to notify him about the possibility of asylum. But Jimenez-Aguilar told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, who had received asylum based on these threats. The IJ accordingly should have given the regulatory advice, which could have led to further evidence on topics such as whether the government is complicit in private violence."

Ms. Espinoza’s work creates an important legal precedent which has impacted how immigration courts as well as circuit courts throughout the country will adjudicate cases of non-citizens seeking asylum and withholding protection by clarifying the correct legal standards to be applied.

* The case is, first, a published decision (many decisions of the court are not important enough to be published), and, second, its statement of the law is so important that future parties rely upon it in their arguments in their cases before the courts.

New Illinois Marijuana Law Helps Non-Citizens

2019-12-15 in Blog, Crime and Immigration

New Illinois Marijuana Law Helps Non-Citizens

 In Illinois, starting January 1, 2020, the recreational use of marijuana becomes legal. Under Federal immigration laws, however, its use remains prohibited. Even though the Illinois law does not expressly provide relief for non-citizens, a relatively unmentioned provision provides a notable benefit to those non-citizens who have disqualifying marijuana convictions in their backgrounds. This short article will discuss, first, what the pitfalls are in seeking any benefit such as legal permanent residency or naturalization from United States Citizenship and Immigration Services (“USCIS”) in relation to use of marijuana and, second, how the new Illinois law opens the door to vacate all disqualifying marijuana convictions, whether for possession or delivery.

Pertinent Federal laws regarding possession of Marijuana. Under federal law the possession of marijuana remains illegal. Under Title 21, Chapter 841, the federal statute simply provides as follows:

(a) Unlawful acts: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

(21 U.S.C. §841) (West, 2019). Marijuana, or “cannabis,” is considered a “controlled substance” under schedule I of the Act. 21 C.F.R. 1308.11(d)(23).

Under the Immigration and Nationality Act (“INA”), possession of marijuana is a disqualifying offense for those who seek permanent residency as well as those who seek naturalization. For those seeking permanent residency, not only a conviction, but also any “admission” to using marijuana could result in a denial. Likewise, for those seeking naturalization, not only a conviction, but also any “admission” could result in being denied naturalization as a failure to have “good moral character” under the INA.

 Legalization of Possession of Marijuana, New Illinois Law P.A. 101-27 (eff. 6-25-19). Illinois prosecutors do not make a distinction between those who are citizens and non-citizens and, therefore, it is unlikely that anyone, whether a citizen or not, will receive a “conviction” for possession of marijuana in Illinois so long as it is less than 30 grams for Illinois residents, and less than 15 grams for non-residents of Illinois. It is also worth noting that not all use of marijuana is legal: (a) it must not be smoked in public, (b) if transporting it in a vehicle, it must be inaccessible during transport, i.e., in the trunk, and in a sealed container, and (c) one cannot be under the influence while driving.

 The problem for non-citizens is that for any arrest USCIS many times requests a copy of the police report even if there was no conviction. USCIS may require an explanation of what happened during the arrest, usually looking for any clues for whether any violence, drugs, or weapons were involved. If USCIS sees in the police report that marijuana was involved and, at the interview, the non-citizen admits to the USCIS officer having used marijuana, although never charged and convicted for it, it would be a basis to deny relief and, depending upon the circumstances, place the non-citizen into removal proceedings. Thus, it is advisable to retain counsel for any applications for permanent residency or naturalization when there is any arrest for marijuana, despite the recent change in Illinois law.

Time to Commence Post-Conviction Proceedings, P.A. 101-27. Under the new Illinois law, those with marijuana convictions for possession under Section 4 or Section 5 of the Cannabis Control Act, may seek to vacate their convictions, apparently regardless of the date of conviction.

The law states very simply:

Any individual may file a motion to vacate and expunge a conviction for a misdemeanor or Class 4 felony violation of Section 4 or Section 5 of the Cannabis Control Act.

20 ILCS 2630/5.2(i)(3). P.A. 101-27. This provision not only allows for the vacature of possession convictions, but also convictions for delivery under Section 5 of the Cannabis Control Act. It is important for non-citizens to understand that mere expungement is insufficient under Federal immigration law – a complete vacature of the conviction, meeting the requirements under Board of Immigration Appeals case law is required to completely erase any conviction, including controlled substance convictions for marijuana possession and/or delivery. Despite the difficulty in meeting these requirements, the most difficult requirement we have encountered is that the person has allowed more than three (3) years to pass from the date of conviction, which subjects the petition to immediate dismissal in the criminal court. Now, however, the new Illinois legalization law has commenced the clock again for criminal judges to review and vacate these convictions. If you are a non-citizen who has a conviction for marijuana possession or delivery in your background, now is the time to discuss with counsel whether you may qualify to vacate the conviction and proceed to ask for either permanent residency or naturalization with USCIS. Depending upon your circumstances, you may have a very short time to do so, but in most cases it would be about 2 years, until the end of 2021.

Related Link

Andreica v. McAleenan

2019-08-12 in Cases Won

Andreica v. McAleenan,Acting Secretary, Dept. of Homeland Security17 CV 9254Order Compelling Discovery of Notes, PhotographsAugust 12, 2019

The Plaintiff and his wife retained Carla I. Espinoza of Chicago Immigration Advocates Law Offices, to file suit against United States Citizenship and Immigration Services (“USCIS”) for its delays and eventual denial of an Adjustment of Status application, based upon marriage, filed in 2011.

The Plaintiffs were subjected to two interviews, two investigatory visits to their home, two appeals to the Board of Immigration Appeals, and then two denials of their petition. USCIS denied the claim in both instances because it believed that Plaintiff’s wife was still residing with her ex-husband. While the case was pending before the Board, Carla I. Espinoza provided overwhelming evidence that the marriage was in good faith including not only joint utility bills, bank statements, and property ownership records, but also several affidavits from friends and family attesting to the good faith marriage. Despite this, the Board remained steadfast in supporting the improvident decision of USCIS.

The federal lawsuit asserted, first, that USCIS was withholding information from the record when the case was before the Board. Second, and most troubling, USCIS created a memo after the lawsuit upon which it sought to rely to summarize evidence and continue to deny the petition. Federal District Court Judge Joan B. Gottschall found both problems troubling, requiring USCIS to turn over its records by court order, dated August 12, 2019.

In her decision she said:

"To sum up, plaintiffs have made the required strong showing that the record is incomplete and that additional information is needed to facilitate meaningful judicial review. The additional information needed includes an explanation of the date appearing on the FDNS memo, A.R. 54–55. To complete the record, defendants must also add any investigative materials, such as notes, photos, an insurance claim, and the purchase agreement, considered by the Director or the BIA. If no such additional materials exist, defendants must supplement the administrative record with an appropriate affidavit so stating and indicating whether any such documents previously existed and, if so, why they cannot be added to the record."

Regarding the memo created during the litigation, Judge Gottschall said

"The court’s review of the record raises serious concerns about the good faith of the underlying investigation and proceedings. The timing of the FDNS memo’s introduction into the record (so plaintiffs never could present an argument to the Director about it) makes it appear to have been manufactured for litigation purposes (supplementation will clarify this issue)."

If your case was improperly denied, or the Government is taking an inordinate amount of time to decide your case, you may have a claim under the Administrative Procedure Act (“APA”). Give Chicago Immigration Advocates Law Offices a call to discuss your case.

DACA and Adjustment of Status

2018-11-18 in Blog, Family-Based Immigration

DACA and Adjustment of Status

Several people we have spoken to over the last few weeks have inquired concerning their eligibility for Adjustment of Status based upon marriage to a U.S. Citizen if they have received Deferred Action for Child Arrivals (“DACA”). It has been widely discussed that DACA was not meant to be a “path to citizenship.” In some instances, however, it might be, but it is our interpretation that it is limited to those with particular circumstances.

We will start out discussing some concepts in immigration law. First, “Adjustment of Status” is the term for receiving legal permanent residence within the borders of the U.S. In order to be eligible for Adjustment of Status, the person must enter the U.S. legally, i.e., with inspection by a border officer. This is in distinction to “consular processing” where a person obtains legal permanent residency through an immigrant visa obtained outside the U.S. Those who entered without inspection are required to leave the U.S. in order to obtain an immigrant visa and are subject to a 10 year bar when they leave because they have been in the U.S. illegally for over 1 year (a waiver or the “provisional” waiver forgives this illegal presence; if someone elects to do consular processing by the use of the provisional waiver, they need not leave the U.S. for more than a day or two.) The issuance of DACA, in and of itself, is not an admission that can be used for adjustment of status and, therefore, consular processing with either a regular waiver or provisional waiver is a very good option if they have a U.S. citizen spouse. It is important to keep in mind that DACA is merely a directive from the President which permits those who meet its requirements to remain here with work authorization so that they can further their education as well as work, despite having entered illegally and was carefully crafted so as not to confer any status.

Therefore, as discussed above, people with an illegal entry in most instances cannot adjust status. One exception to the legal entry requirement, however, is the amnesty of 2001 where if someone filed an application for an applicant prior to April 30, 2001, they need only pay a $1,000 penalty and they can adjust status despite having entered the U.S. illegally. Therefore, this discussion applies to DACA recipients who (a) entered illegally; (b) are married to a U.S. citizen; (c) never had a work or family petition filed for them or a parent prior to April 30, 2001, and (d) after being here for their first year, did not leave and return to the U.S.

In order for DACA recipients to be eligible to adjust status, they must have obtained “advance parole” to leave the U.S. and, in fact, left the U.S. and returned. Advance parole is a process by which USCIS gives a person permission to re-enter the U.S. for specific reasons. And the entry upon returning creates the “admission” which is required for adjustment of status. USCIS will grant advance parole to people, however, only in limited circumstances enumerated on the website, including humanitarian reasons, i.e., visiting a sick relative, educational purposes, i.e., study-abroad program, or employment purposes, i.e., work conferences. See http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.

Following the 2012 Board of Immigration Appeals decision, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 221, the Department of Homeland Security expressed its intent to adopt the interpretation that leaving the country pursuant to a grant of Advance Parole is not considered a “departure” which triggers the 3- and 10-year bar to re-entry. See, Memo, Jeh Johnson, Secretary, U.S. Dept. Of Homeland Security, “Directive to Provide Consistency Regarding Advance Parole” (Nov. 20, 2014). Therefore, DACA recipients who are granted parole into the U.S. after their travel abroad, who are beneficiaries of a visa petition, and a visa is immediately available, i.e., a U.S. citizen spouse petitioned for them, should be eligible to apply for residency while remaining in the U.S. without having to deal with this particular “bar” under the Immigration Act.

Despite this, it is our opinion that DACA recipients should use the advance parole process carefully. First, there must be a legitimate reason for requesting permission to leave the U.S. and not merely the intent to qualify for adjustment of status. Most importantly, it must be supported by sufficient documentation. Secondly, a person should not seek to use advance parole if he or she left and returned to the U.S. after having originally entered, i.e., you came to the U.S. twice or more. The reason for this is that the person could trigger a different and more strict 10 year bar (different from the one mentioned above) for having illegally remained in the U.S. for more than one year and then left and re-entered or attempted to re-enter. It is our experience that, even in this circumstance, USCIS may still issue an advance parole document and when you attempt to enter on it, U.S. Customs and Border Protection (“USCBP”), will deny entry for having violated this provision. It seems to make sense that USCIS would not issue the document if you are not entitled to return, but that is not the case.

It is important to note that most DACA recipients who are married to U.S. citizens also qualify for the provisional waiver and that should be considered as a good alternative if there are not legitimate reasons to leave the U.S. Further, there may be questions from either USCIS or USCBP concerning one’s marital status. If it is disclosed that one is married to a U.S. citizen, it is likely that the request for advance parole will be scrutinized carefully and, perhaps, denied. And, further, once the advance parole is granted by USCIS, you will also be scrutinized by USCBP upon entry, which has discretion to deny entry. It is possible that USCBP officers could inquire one’s intention to marry after entering the U.S. or whether one intends to adjust status after entering if already married, in which case, could form the basis for a denial of entry. We believe, therefore, that if one is married to a U.S. citizen and is a DACA recipient, one’s reasons for leaving the U.S. under advanced parole must be strong, along with sufficient supporting documentation. Further, if one is not yet married, one should refrain from marrying until after having left and returned on advance parole. In either case, if one’s reasons for leaving are weak, then either USCIS or USCBP will suspect an intent to avoid the immigration laws and will either deny the advance parole request or, worse, deny entry at the border once you have left.

Rivas-Pena v. Sessions

2018-08-21 in Cases Won

Rivas-Pena v. Sessions
900 F.3d 947 (7th Cir. 2018)
Seventh Circuit Court of Appeals/h4>

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Rivas before the Immigration Court as well as at the Court of Appeals on a Petition for Review. Mr. Rivas sought protection under CAT to avoid being killed by one of the Mexican drug cartels if he were removed to Mexico. The Immigration Court said that Mr. Rivas’ claim was merely “speculative” and summarily dismissed his case. The Petition for Review prepared by Ms. Espinoza argued that an Immigration Judge’s mere assertion of “speculation” does not meet the standard under CAT and that the regulation requires any decision must to be supported by “substantial evidence.” The Court found that the evidence, supported by expert testimony from a university professor who studies Mexican drug gangs, was that Mr. Rivas’ loss of nearly $900,000 in contraband would have resulted in his death by the gang if he were returned to Mexico and, thus, reversed the decision of the Immigration Court.

Ms. Espinoza’s work creates important legal precedent which impacts how immigration courts as well as circuit courts throughout the country will adjudicate cases for non-citizens seeking CAT protection by clarifying the correct legal standards to be applied.

Victory at the Seventh Circuit Court of Appeals

2017-08-09 in Cases Won

On April 1, 2015, the attorneys at Chicago Immigration Advocates obtained a ruling from the Seventh Circuit Court of Appeals reversing the Board of Immigration Appeals (“Board”) and ordering that the Board review the case again in light of the errors committed by the Respondent’s previous two attorneys. Tie Xia Chen v. Holder, 782 F.3d 373 (7th Cir. 2015). The Respondent hired two attorneys for his trial hearing who committed a multitude of errors, including, mistranslating an affidavit, recommending the Respondent to get documents he could not obtain, failing correct the record regarding the birth date of his child, among other mistakes.

According to the Seventh Circuit, the Board committed error when it refused to properly review the errors committed by the previous attorneys. The Court said “[t]he Board should determine if Chen’s attorneys incompetently neglected to offer evidence and arguments that might have resolved the inconsistencies identified by the IJ.” Id. at 377. In its opinion the Seventh Circuit acknowledged the strength of our argument when it said “[i]n a detailed brief, Chen methodically argued that each inconsistency or deficiency identified by the IJ could be attributed to counsel’s incompetence.” Id.

The case has been remanded to the Board and we are still awaiting its ruling.

James C. Ten Broeck Jr., the principal attorney, along with his associate attorneys, first filed a Motion to Reopen with the Board, in which these errors were pointed out and requested that the Board send the matter back to the Immigration Court. As required by rule, two complaints were filed with the Attorney Registration and Disciplinary Commission of Illinois (“ARDC”) against the ineffective attorneys.  When the Board denied the Motion, Chicago Immigration Advocates attorneys filed an appeal to the Seventh Circuit Court of Appeals.  After two rounds of briefing and oral argument, the Seventh Circuit Court of Appeals agreed that the case should be reversed.

We are very happy for our client that we were able to get this hard-fought result. We are confident that our Client will have an opportunity to present his case again and, this time, have the opportunity to present all of his evidence in a favorable light.

Rodriguez-Molinero v. Lynch

2015-12-17 in Cases Won

Rodriguez-Molinero v. Lynch,
808 F.3d 1134 (7th Cir. 2015)
Seventh Circuit Court of Appeals
Precedential Case*

On December 17, 2015 the Seventh Circuit Court of Appeals (“7th Circuit”) rendered a precedential decision aimed to protect the rights of non-citizens seeking protection under the U.N. Convention Against Torture (“CAT”) and, in this case, a Mexican national.

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Rodriguez-Molinero before the Immigration Courts as well as at the Court of Appeals on a Petition for Review. Mr. Rodriguez-Molinero was seeking protection under CAT to avoid certain death if he were removed to Mexico. While in removal proceedings the Immigration Court found that Mr. Rodriguez-Molinero suffered past torture by the Zetas, the most powerful Mexican cartel, that Mr. Rodriguez-Molinero owed this cartel a substantial drug debt, and that he had given information about this cartel to American law enforcement authorities, yet the Immigration Court still denied him CAT protection. The Petition for Review prepared by Ms. Espinoza argued that the denial of CAT protection was predicated on a misapplication of the law surrounding the principle of official acquiescence to the torture and misapplication of the legal standard to evaluating the evidence.

More specifically, Ms. Espinoza persuaded the 7th Circuit that: (1) the “more likely than not” burden of proof should not be interpreted literally to require a numerical probability of torture, but rather should be interpreted as a “substantial risk” that the torture will occur if the non-citizen is removed; (2) the law surrounding official acquiescence or consent requires only that a single public official, and not the entire Mexican government, consent in torture; and (3) any unsuccessful efforts by the Mexican government to combat the cartels should not be construed to impact the unlikelihood of torture.

“it is success rather that effort that bears on the likelihood of the petitioner’s being killed or torture if removed to Mexico.”

*The case is, first, a published decision (many decisions of the court are not important enough to be published), and, second, its statement of the law is so important that future parties rely upon it in their arguments in their cases before the courts.

Illegal Re-Entry Prosecution – Sentence Reduction

2015-10-02 in Blog, Client Success Stories

Illegal Re-Entry Prosecution – Sentence Reduction

Since 2013, our Client was facing criminal charges in the Northern District of Illinois, Eastern Division, for illegally re-entering the U.S. after having committed an aggravated felony. Illegal re-entry can carry a sentence of up to 20 years imprisonment. Under the sentencing guidelines, as calculated by the U.S. Probation Department, our Client was facing 46 – 57 months in federal prison. On September 17, 2015, the Judge sentenced the Defendant to only 15 months. Through several motions and arguments challenging the government’s assertions, the Judge agreed with defense counsel that a guidelines sentence would be unfair. Defense counsel for the Defendant were Carla I. Espinoza and James C. Ten Broeck Jr. from Chicago Immigration Advocates Law Offices.

This was a hard-fought and lengthy case since we had originally challenged the validity of our Client’s deportation orders uncovering a number of irregularities with his 1993 and 1994 deportation hearings, including a misleading translation. This was an important litigation strategy because it exposed the unfairness many immigrants face during deportation proceedings and allowed the Judge to consider it in favor of our Client. While the Judge ultimately decided that the deportation orders were valid, he acknowledged that defense counsel had challenged him to consider aspects of the law that were new to him. Having carefully weighed all possible defenses after this ruling, we advised our Client that his chances to prevail at trial were low and that he would benefit more by accepting a conditional plea of guilty so that we could focus on sentence reductions.

After the plea, adverse facts were brought to the Judge’s attention by the probation department in preparing its pre-sentence memorandum asserting that criminal history points ought to apply – when, in fact, none were added by the U.S. Attorneys’ Office – because the Defendant had allegedly re-entered the U.S. at a point in time much closer to when he committed the aggravated felony. Attorneys at Chicago Immigration Advocates argued that reliance on that factor would violate due process of law and confidentiality principles and, consequently, we were able to reduce the sentencing guideline calculation by 5 months and then persuade the Judge that an even lower sentence was appropriate.

The biggest part of this case was that the Judge was persuaded to go lower than what the sentencing guidelines recommended by at least 31 months. At oral arguments Attorney Carla I. Espinoza persuaded the Judge to reduce the sentence in light of Defendant’s motivations in returning to the U.S., acceptance of responsibility and rehabilitation, family ties to the U.S., and attempts to secure legal status in the U.S. The Judge agreed that a sentence within the guidelines range would be unfair to the Defendant in light of the totality of the circumstances. At the conclusion of the hearing the Judge told the Defendant: “[t]he attorneys have done a remarkable job – they had me think about things I had never thought of before.”

We are happy to share this success story with you because it demonstrates the importance of having good attorneys to represent you in any legal proceeding, but especially in illegal re-entry proceedings where the stakes are high. For this Client, our diligent representation meant the difference of serving 31 months (2 years, 7 months) less in federal prison than he would have likely served if his previous attorney continued to represent him.

Success in Federal Court – Defending Illegal Re-entry

2015-10-02 in Cases Won

Since 2013, our Client was facing criminal charges in the Northern District of Illinois, Eastern Division, for illegally re-entering the U.S. after having committed an aggravated felony. Illegal re-entry can carry a sentence of up to 20 years imprisonment. Under the sentencing guidelines, as calculated by the U.S. Probation Department, our Client was facing 46 – 57 months in federal prison. On September 17, 2015, the Judge sentenced the Defendant to only 15 months. Through several motions and arguments challenging the government’s assertions, the Judge agreed with defense counsel that a guidelines sentence would be unfair. Defense counsel for the Defendant were Carla I. Espinoza and James C. Ten Broeck Jr. from Chicago Immigration Advocates Law Offices.

This was a hard-fought and lengthy case since we had originally challenged the validity of our Client’s deportation orders uncovering a number of irregularities with his 1993 and 1994 deportation hearings, including a misleading translation. This was an important litigation strategy because it exposed the unfairness many immigrants face during deportation proceedings and allowed the Judge to consider it in favor of our Client. While the Judge ultimately decided that the deportation orders were valid, he acknowledged that defense counsel had challenged him to consider aspects of the law that were new to him. Having carefully weighed all possible defenses after this ruling, we advised our Client that his chances to prevail at trial were low and that he would benefit more by accepting a conditional plea of guilty so that we could focus on sentence reductions.

After the plea, adverse facts were brought to the Judge’s attention by the probation department in preparing its pre-sentence memorandum asserting that criminal history points ought to apply – when, in fact, none were added by the U.S. Attorneys’ Office – because the Defendant had allegedly re-entered the U.S. at a point in time much closer to when he committed the aggravated felony. Attorneys at Chicago Immigration Advocates argued that reliance on that factor would violate due process of law and confidentiality principles and, consequently, we were able to reduce the sentencing guideline calculation by 5 months and then persuade the Judge that an even lower sentence was appropriate.

The biggest part of this case was that the Judge was persuaded to go lower than what the sentencing guidelines recommended by at least 31 months. At oral arguments Attorney Carla I. Espinoza persuaded the Judge to reduce the sentence in light of Defendant’s motivations in returning to the U.S., acceptance of responsibility and rehabilitation, family ties to the U.S., and attempts to secure legal status in the U.S. The Judge agreed that a sentence within the guidelines range would be unfair to the Defendant in light of the totality of the circumstances. At the conclusion of the hearing the Judge told the Defendant: “[t]he attorneys have done a remarkable job – they had me think about things I had never thought of before.”

We are happy to share this success story with you because it demonstrates the importance of having good attorneys to represent you in any legal proceeding, but especially in illegal re-entry proceedings where the stakes are high. For this Client, our diligent representation meant the difference of serving 31 months (2 years, 7 months) less in federal prison than he would have likely served if his previous attorney continued to represent him.