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.

Immigration Consequences of Driving Under the Influence

2015-09-15 in Blog, Crime and Immigration

Immigration Consequences of Driving Under the Influence

Driving under the influence of alcohol (“DUI”) convictions have varying degrees of severity for the non-citizen, depending upon the non-citizen’s status in the United States. There are four categories of non-citizens for purposes of considering the effects of a DUI conviction. This article will discuss the consequences, first, for someone here who entered without inspection, i.e., “illegally,” or “without papers.” Second, it will discuss a conviction for those who have overstayed their visas and are thus considered to be “overstays.” In the third category are those who may qualify for Deferred Action for Childhood Arrivals (“DACA”). And, fourth, there are those who have legal permanent residency status. At the end of this article we discuss the best course of action you can take to avoid a conviction for DUI

Without Inspection. For these persons the consequences can be grave. It is our experience that as a result of a DUI, especially someone who lives in the areas outside of Chicago, a person can find him or herself before an Immigration Judge facing removal proceedings as a result of a DUI arrest. The mere occurrence of an arrest is enough in some jurisdictions to get the attention of U.S. Immigration and Customs Enforcement (“USICE”) who process the person to be placed in proceedings before an Immigration Judge, called “removal” proceedings. In Chicago, this is typically not the case unless the person gets a sentence of confinement to jail.

Many people who have been here for a long time, in particular over 10 years, can request “Cancellation of Removal for non-Legal Permanent Residents” before the Immigration Court if he or she can show they have a U.S. citizen spouse, child, or parent who will suffer extreme and exceptional hardship if he or she is removed from the U.S. But a DUI conviction makes it very difficult to demonstrate the good moral character required before an Immigration Judge. In other words, an Immigration Judge is not likely going to take a risk that someone who has been caught drinking and driving will not stop doing so and, thus, will not continue put people’s lives in danger. A person in this situation, who has no status, may have a chance to get Cancellation of Removal if the DUI conviction is many years old and the hardship to the U.S. citizen is truly exceptional. Therefore, the lesson to learn here is that if you are in the U.S. without status you should do all that you can to contest the charges in order to get a finding of “not guilty” by the criminal judge or jury or have the case dismissed on a pretrial motion to suppress the arrest.

Many persons without inspection also qualify for the new “Provisional Waiver” program if he or she has a U.S. citizen wife or U.S. citizen son or daughter over 21 years of age to sponsor him or her. Again, a DUI conviction will make this process difficult if not impossible. U.S. Citizenship and Immigration Services (“USCIS”), which processes these waivers, will consider your conviction for a DUI disqualifying if it occurred in the last three years or permanently disqualifying if you have had more than one. USCIS and the U.S. Department of State (which processes the immigrant visas) will find such a person “inadmissible” under the Immigration and Nationality Act (“INA”) as a “habitual drunkard.” Again, the lesson here is that if you have a chance at obtaining status in the U.S. through the Provisional Waiver program you should not accept a plea of guilty to a DUI charge unless you and your attorney are fully convinced that you would never succeed at trial. It has been our experience that many persons have come to us seeking assistance either in Immigration Court or with consular processing only to have their chances ruined by having unwisely pleading guilty to a DUI charge. Again, the lesson is to not have a conviction for DUI.

It has been our experience that a DUI conviction will also make your chances at obtaining “prosecutorial discretion” very difficult if not impossible. Under a new initiative by President Obama several years ago, he authorized the government attorneys to close removal cases if the circumstances of the case indicated that the non-citizen has ties to the United States, e.g., family, business, home, and has a clean criminal record. Although technically a DUI is only a misdemeanor offense, it is enough to become a bar to obtaining prosecutorial discretion. Again, the lesson is to fight a DUI charge if you have entered the U.S. without inspection.

Overstays. For someone who entered the U.S. legally, but has overstayed his or her visa, he or she would likely be placed in proceedings for being out of status if he or she came to the attention by USICE as a result of a DUI arrest. Since persons who entered legally may be sponsored by a U.S. citizen spouse or son or daughter over 21 years of age, in this situation, they do not have the same difficult burden of proof for good moral character as required for someone who entered illegally. For instance, if a U.S. citizen spouse petitions for him or her, a DUI conviction has little consequence in the adjustment proceeding. But, lacking such a sponsor, e.g., not married any longer, then the person would be required to seek Cancellation of Removal for non-Legal Permanent Residents and would face the same burden of proof as a person who entered without inspection as discussed above.

Deferred Action for Childhood Arrivals (“DACA”). For a non-citizen who either entered without inspection or is an overstay, requesting DACA is always an option. The main requirements for DACA are that the non-citizen entered the U.S. prior to turning 16 years of age, was under the age of 31 as of June 15, 2012, and has at least a high school degree or GED. In addition, however, there are bars for criminal offenses. One of those is DUI, which is considered a “significant misdemeanor” barring the grant of DACA.

Legal Permanent Residents. For these persons, a conviction for DUI is really only an inconvenience if you have only one. A DUI conviction is not enough to warrant being placed in removal proceedings, unless there are other exacerbating circumstances, such as death, harm, or extensive property damage. A legal permanent resident can seek to be naturalized even with a DUI in his or her background and USCIS usually will grant Naturalization even if there is a recent DUI. At the same time, however, the grant of Naturalization is discretionary, so if the DUI is too recent, i.e., within the last year, or the person is still on probation or supervision, it is unlikely that the naturalization will be granted until that is completed. Further, if there is more than one DUI, the chances increase that the Naturalization will be denied if the application is within 5 years of the last conviction, but its not always the case if there are other positive factors. The period of time of having to fulfill the requirement for “good moral character” under the INA is 5 years. Thus, if you want to be certain that you will be granted Naturalization and you have more than one DUI, we recommend waiting out the 5 year period from the date of the order issuing the last DUI conviction.

What Can You Do if You Are Charged with DUI? The best course of action is to hire a good immigration attorney to give advice and guide you through the process if you are charged with a DUI, especially if you are not a legal permanent resident. We can recommend and work with good criminal defense lawyers who will be able to explain your chances of winning at trial after reviewing the evidence. There are a multitude of ways to contest a DUI charge, including contesting the accuracy of the breath test or blood test, the accuracy of the field tests, etc. Further, pursuant to our recommendations, the criminal defense attorney may also be able find a way to suppress the arrest for lack of a probable cause to arrest in the first place, e.g., you were not weaving, speeding, or doing anything wrong when you were pulled over.

Conclusion. It is our opinion that those without status, as opposed to those to are legal permanent residents, have too much to lose by improvidently pleading guilty to DUI cases. A plea should be avoided at all costs by hiring a good immigration attorney to work with a good reputable criminal defense lawyer.

We recognize that there is always the risk that by taking a case to trial, and losing, that a DUI defendant will face jail time and, by getting jail time, the defendant will then come to the attention of USICE. On the other hand, when a person pleas guilty and gets only probation the chances are better that it will not result in coming to the attention of USICE since there is no jail time involved. This is the way that prosecutors and criminal defense attorneys work to convince all defendants to plea guilty, i.e., by pointing out that jail time is possible or likely if you contest the case and lose. It is important to keep the following in mind: first, this is not always the case; it varies by jurisdiction and by judge and depends upon whether there is any previous criminal background. A good criminal defense attorney will be able to let you know what might happen in the event you lose after trial. And if the case is outside of Chicago it is likely that even before the DUI case is completed the person has already been placed in removal proceedings by USICE. Therefore, contesting the DUI case and getting jail time is of no consequence to being put in removal proceedings before an Immigration Judge – the worst has already happened, the person has already come to the attention of USICE. Therefore, the lesson to learn here is that a person who has no status should not be afraid to contest their case to the fullest extent possible, especially if he or she was arrested outside of Chicago, where he or she likely has come to the attention of USICE already. And, if in Chicago, the person ought to find out from the criminal defense attorney what may happen if there were a finding of guilty after contesting the case.

For most people, preserving the ability to obtain legal status in the U.S. with all its benefits, both financial and emotional, is worth the risk of few days in jail and would have taken this risk had they known the grave adverse consequences of a DUI conviction.

Tie Xia Chen v. Holder

2015-04-01 in Cases Won

Tie Xia Chen v. Holder
782 F.3d 373 (7th Cir. 2015)
Seventh Circuit Court of Appeals/h4>

On April 1, 2015, the Seventh Circuit Court of Appeals rendered a favorable decision on a Petition for Review for a Chinese citizen, represented by James C. Ten Broeck Jr. of Chicago Immigration Advocates Law Offices, whose claim of asylum was denied by the lower Immigration courts.

Chicago Immigration Advocates Law Offices, through Attorney James C. Ten Broeck Jr., was retained after Mr. Chen lost his case before both the Immigration Court and Board of Immigration Appeals. Mr. Ten Broeck filed a Motion to Reopen before the Board of Immigration Appeals asserting that numerous errors were committed by previous counsel which were relied upon by the Immigration Court to enter an order of removal against Mr. Chen. More specifically, Mr. Ten Broeck recounted that his previous attorneys (1) mistranslated important documents, (2) his attorney twice misadvised him to get a unauthentic birth certificate for the second child, and (3) his attorney inappropriately supplied a Spanish translation of his own birth certificate without adequate explanation, among other errors relied upon by the Immigration Court to deny Mr. Chen’s asylum claim.

The Seventh Circuit agreed, saying:

"The Board never evaluated Chen's argument that, but for his attorneys' failure to resolve the inconsistencies cited by the IJ, she would not have required corroboration or would have found the corroboration (beyond the birth certificates) sufficient. For example, “the most significant inconsistency,” according to the IJ, was that Chen asserted in his written application for asylum that his wife had been sterilized but testified that she was only threatened with sterilization. But in his motion Chen offered evidence that Ming had the application mistranslated and that attorney Zhang, who spoke Mandarin, carelessly left it mistranslated. Chen's motion also goes through every other supposed inconsistency or deficiency—the Spanish translation of his birth certificate, meeting Meredith, his daughter's age, his reasons for coming to the United States, and document authentication—and offers the resolution that his attorneys neglected to furnish. The Board addresses none of this evidence or its possible effect on the IJ's decision."

Chicago Immigration Advocates Law Offices continues to demonstrate, through the efforts of Mr. Ten Broeck, that no matter how grim things might look for your case, if any lawyers are going to win your case, it will be Chicago Immigration Advocates Law Offices.

In Re: Carlos, (Chicago Immigration Court, July 13, 2011)

2011-07-13 in Cases Won

Legal challenge:

Our client was charged with deportation for the commission of two crimes of moral turpitude after entering the United States. Action Taken: Chicago Immigration Advocates filed a motion to stay the removal proceedings on the grounds that his first conviction was not a crime of moral clumsiness and was also a protected expression under the First Amendment to the U.S. Constitution. .. Result: The Immigration Court agreed, found that our client’s first conviction was not a crime of moral clumsiness and ended the deportation case against our client. Our client remains in the United States to this day as a lawful permanent resident.

In Re: Carlos, (Chicago Immigration Court, July 13, 2011)

2011-07-13 in Cases Won

Legal challenge:

Our client was charged with deportation for the commission of two crimes of moral turpitude after entering the United States. Action Taken: Chicago Immigration Advocates filed a motion to stay the removal proceedings on the grounds that his first conviction was not a crime of moral clumsiness and was also a protected expression under the First Amendment to the U.S. Constitution. .. Result: The Immigration Court agreed, found that our client’s first conviction was not a crime of moral clumsiness and ended the deportation case against our client. Our client remains in the United States to this day as a lawful permanent resident.

In Re: Roman (United States Immigration Services, July 2011)

2011-07-09 in Cases Won

Legal challenge:

A conditional permanent resident submitted a request to remove the conditions of his residence with another attorney. The United States Immigration Services issued a notice of intent to deny the application and terminate his resident status on the grounds that his marriage was fraudulent. Action Taken: Chicago Immigration Advocates took over the case and filed a response to the intent to deny. The response refuted USCIS ‘allegations of marriage fraud and alleviated his concerns about the client’s marriage. Result: USCIS eliminated the conditions of our client’s residence and he is a permanent resident without conditions and plans to submit the application for naturalization.

In Re: R. and S. (5/31/2011)

2011-05-31 in Cases Won

In Re: -, R & S, (Chicago Immigration Court, May 31, 2011). Legal challenge:Our clients, husband and wife, were detained, paroled and released in the United States at the Canadian border, they stated fear of returning to their country of origin. ACTION TAKEN: Chicago Immigration Advocates filed applications for asylum, withholding of deportation, and deferral of deportation in accordance with the Convention Against Torture based on their fear of returning to their country on the basis of religious persecution. Result: The Immigration Court considered that our clients established that they were practicing Christianity, and that in the future, they will be persecuted by the government of their country in the Middle East. The Immigration Court also found that clients were previously persecuted due to their religious beliefs in their home country.