Reopening Your Criminal Case: Post Conviction Petitions

2021-03-09 in Crime and Immigration

Many criminal convictions, and some not serious, render a non-citizen ineligible for any benefit or relief under the Immigration Act, making re-opening the criminal case necessary. It has been our experience that non-citizens have improperly pled guilty to removable offenses without first obtaining the advice of a knowledgeable immigration deportation lawyer. As a result, it may be necessary to file either a “post-conviction” petition or motion to vacate the plea in the criminal proceedings. The most prevalent reason for vacating a conviction, whether by plea or after trial, is that the criminal defense attorney rendered ineffective assistance of counsel, for example, by rendering bad advice or failing to obtain crucial evidence.

Under Illinois law, a defendant usually must file the post-conviction petition within the time that the defendant is incarcerated, on probation, or on supervision. If the defendant is outside of these time periods, then the post-conviction petition will likely be dismissed. There are, however, exceptions and, therefore, cases of this importance should be evaluated by us on a case-by-case basis to determine if there is an exception in the event that these time periods have expired.

Defendants are permitted to vacate their convictions but, it should be emphasized, only in the most extenuating circumstances. If a defendant is fortunate enough to vacate a conviction, it enables the defendant to withdraw his or her plea of guilty, thus placing the defendant at the place in time before accepting the plea of guilty. The defendant usually must thereafter stand trial for the offense after vacating the plea. The very important thing to understand is that courts strongly resist re-visiting a previously made judgment of guilt. Consequently, there are presumptions against a defendant that he or she has a good reason to vacate a plea and re-open a criminal case. Therefore, the reason for reopening a criminal case must be of constitutional importance.

Do Not Plead Guilty Without Immigration Advice

At Chicago Immigration Advocates, we have encountered many instances in which clients have been persuaded, improperly, to plea guilty to a case by their criminal defense attorney. In only rare instances, however, should a non-citizen plea guilty to a criminal offense, especially if he or she is uncertain whether it will result in deportation. In many instances, we have recommended a plea of guilty to our clients, but a plea should not be entered without consulting with an experienced immigration attorney. At Chicago Immigration Advocates, we frequently conduct legal research and render written opinions concerning whether a non-citizen should plea guilty to a criminal offense.

Gun Offenses

2021-03-09 in Crime and Immigration

A gun offense can result in removal proceedings but will not result in inadmissibility proceedings. The inadmissibility provisions of the Immigration and Nationality Act do not contain any prohibitions against guns. Therefore, if a non-citizen who is not already residing in the U.S. is seeking to enter the U.S. and has committed a gun offense of some kind, he or she cannot be deported. However, if a non-citizen is already residing in the U.S, she or he can be deported for committing a gun crime.

Drug Offenses

2021-03-09 in Crime and Immigration

A person can be deported for all drug offenses, whether possession or delivery, for the smallest amounts of narcotics, unless it is a single offense of marijuana possession for less than 30 grams. It should be noted that for drug offenses, they are not waivable by USCIS if you are seeking re-admission into the United States at a later time.

Sentencing and Deportation

2021-03-09 in Crime and Immigration

For crimes involving moral turpitude, or “CIMTs,” a person can be deported under the inadmissibility provisions of the Act if he or she commits a single offense and is sentenced to more than 6 months incarceration. Typically, a criminal court will not sentence a person to jail when a person commits a misdemeanor as a “first time offense” – he or she will likely receive supervision or probation. In first time offense cases, the Act provides an exception if the person was not sentenced to more than 180 days in jail. If the removal provisions apply, then the offense would have to be a felony. See, Inadmissibility vs. Removability [Link]. But, if the person commits two or more crimes of moral turpitude, deportation proceedings will result even if she or he was not sentenced to prison for any of the crimes.

With respect to other types of offenses the length of the sentence can determine whether you will be deported. For instance, under the “aggravated felony” provision, a felony theft offense for which the person is sentenced to 1 year or longer will have committed an aggravated felony. This is the case whether or not the person actually serves the year in prison. For these types of cases, it is critical to have an experienced immigration attorney evaluate the offense.

Crimes of Moral Turpitude and Deportation

2021-03-09 in Crime and Immigration

In many cases, misdemeanors as well as felonies which are not “aggravated felonies” may be “crimes of moral turpitude” which can result in deportation. A “crime of moral turpitude” is a crime during which a person shows that he or she is willing to act in an immoral or cruel way towards another person, e.g. theft, fraud, battery with serious injury, etc. Determining if a particular offense is, indeed, a crime of moral turpitude requires a case-by-case evaluation. As in most immigration cases, winning the case will depend entirely on the skilled legal research done by an immigration deportation lawyer.

USICE will usually not charge the person with committing a crime of moral turpitude unless that crime was also a felony. At the same time, two crimes of moral turpitude, no matter what sentences were given, can form the basis for removal. On the other hand, if the inadmissibility provisions of the Act apply, a single crime of moral turpitude for which there was a sentence of 6 months or longer, even if only a misdemeanor, is a basis for an inadmissibility proceeding.

Aggravated Felonies and Deportation

2021-03-09 in Crime and Immigration

USICE can deport a non-citizen from the U.S. for committing what it calls an “aggravated felony.” According to the Immigration and Nationality Act (hereinafter “the Act” or “Immigration and Nationality Act”) which authorizes the USICE to deport non-citizens, the definition of this charge can be quite complicated. For instance, “a crime of violence” will be counted as an aggravated felony, but only if the person was sentenced to a prison term of over one year. “Crimes of violence” usually include crimes such as robbery or battery. If a person committed one of these crimes but was not sentenced to prison and only received probation, the crime would not be counted as aggravated felony. In this instance, however, it could be classified as a “crime against moral turpitude” which is also a deportable offense but with less legal restrictions.

It is important to determine whether the commission of a crime is an aggravated felony under the Act before conceding the charges in Immigration Court. This is especially important if you are eligible to apply for a waiver. It is also important to understand the difference between “removable” offenses and “inadmissible” offenses for the remainder of this discussion of deportation. See, Inadmissibility vs. Removability.

Pleas of Guilty

2021-03-09 in Crime and Immigration

You should never accept a plea of guilty to a criminal offense unless you know whether or not it will result in deportation. It is important to understand that Illinois offers “supervision” for many misdemeanor offenses which, under Illinois law, do not constitute a conviction, but do constitute convictions under Immigration law. If you are presently facing criminal charges, you should obtain an opinion letter from Chicago Immigration Advocates Law Offices so that you will know whether your plea of guilty will result in deportation proceedings – in many instances, we can recommend alternative charges and/or sentences which will not result in deportation.

Crimes and Immigration

2021-03-09 in Crime and Immigration

Ninety percent of our clients find themselves in Immigration Court removal proceedings because they committed a crime. Even for legal permanent residents, crimes as small as two retail thefts can result in being placed into removal proceedings while for someone who has no status, i.e., they entered illegally, a single driving under the influence of alcohol can result in removal from the United States. It should also be noted that the Federal Government’s tough stance on illegal drugs also results in removal and, even if you are a legal permanent resident, possession of marijuana, greater than 30 grams, will get you removed.

As discussed in Pleas of Guilty, a non-citizen ought never to plea guilty to any offense without consulting a reputable Immigration Attorney. In many instances, we have been able to suggest alternative offenses or alternative sentences which do not result in removal. Supervision and no sentence time does not mean, under Federal Immigration law, that you were not convicted. Immigration law interprets the word conviction differently than Illinois law and, thus, you need to be careful of accepting any plea of guilty in the Illinois criminal courts.

Even if you have plead guilty, in many instances, we have been able to file a Petition for Post Conviction relief in which we have persuaded Illinois criminal courts to vacate previously entered pleas of guilty based upon ineffective assistance of counsel. See, Reopening your Case: Post Conviction Petitions.

New Illinois Law Offers Immigrants Opportunity to Void Marijuana Convictions

2021-03-05 in Helpful Tips

Effective January 1, 2020, recreational use of marijuana in Illinois becomes legal.

However, under Federal Immigration laws, its use is still prohibited. Although Illinois law does not expressly provide relief for non-citizens, a relatively unspoken provision provides a notable benefit for those non-citizens who have a criminal record of disqualification for marijuana. This short blog post will first discuss what the requirements are in pursuit of any benefits, such as legal permanent residence or United States Citizenship and Immigration (“USCIS”) in relation to the use of marijuana and, second, how the new Illinois law opens the door to overturn all marijuana disqualification convictions,

Relevant Federal Laws Regarding Possession of Marijuana.

Under federal law, possession of marijuana remains illegal. Under Title 21, Chapter 841, federal statute simply states the following:
(a) Unlawful acts
Except as authorized by this subchapter, it will be illegal for any person willfully or intentionally:
(1) manufacture, distribute or dispense, or possess with the intent to manufacture, distribute or dispense, a controlled substance;
(21 USC§841) (West, 2019). Marijuana, or “cannabis,” is considered a “controlled substance” under Annex I of the Act. 21 CFR 1308.11 (d) (23).
Under the Immigration and Nationality Act (“INA”), possession of marijuana is a disqualifying offense for those seeking permanent residence and for those seeking citizenship. For those seeking permanent residency, not just a conviction, but also any “admission” to the use of marijuana could result in a denial. Similarly, for those seeking citizenship, not just a conviction, but also any “admission” could result in being denied citizenship for not having “good moral character” under the INA.
Legalization of possession of marijuana, New Illinois Law PA 101-27 (ef. 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 as long as they are under the age of 30. grams for Illinois residents, and less than 15 grams for non-Illinois residents. It is also worth noting that not all use of marijuana is legal: (a) it must not be smoked in public, (b) if it is transported in a vehicle, it must be inaccessible during transport, that is, 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 often requests a copy of the police report, even if there was no conviction. The USCIS may require an explanation of what happened during the arrest, usually looking for clues as to whether there was violence, drugs, or weapons. If USCIS sees in the police report that marijuana was involved and, in the interview, the non-citizen admits to the USCIS officer using marijuana, even though he was never charged and convicted of it, it would be a basis for denying relief and, It depends on the circumstances, they put the non-citizen in deportation proceedings. Therefore, it is advisable to retain an attorney for any application for permanent residence or naturalization when there is a marijuana arrest, despite the recent change in Illinois law.
Time to begin Post Conviction Procedures, PA 101-27.
Under the new Illinois law, those with marijuana possession convictions for possession under Section 4 or Section 5 of the Cannabis Control Act, can attempt to vacate their convictions, apparently regardless of the date of conviction. The law states very simply:
Anyone can 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). PA 101-27. This provision not only allows for the voiding of convictions for possession, but also convictions for surrender under Section 5 of the Cannabis Control Act. It is important for non-citizens to understand that expungement is insufficient under federal immigration law – a full conviction expungement meeting the Board of Immigration Appeals requirements is required to fully expunge any convictions, including convictions for controlled substances for marijuana possession and / or surrender. Despite the difficulty of 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 criminal court. Now, however, the new Illinois legalization law has started again for criminal judges to review and overturn these convictions. If you are a non-citizen who has a conviction for possession or delivery of marijuana in your past, now is the time to consult with an attorney if you may qualify to have the conviction dismissed and proceed to apply for permanent residence or citizenship with USCIS. Depending on your circumstances, you may have little time to do this, but in most cases it would be around 2 years, until the end of 2021. If you are a non-citizen who has a conviction for possession or delivery of marijuana in your past, now is the time to consult with an attorney if you may qualify to have the conviction dismissed and proceed to apply for permanent residence or citizenship with USCIS. Depending on your circumstances, you may have little time to do this, but in most cases it would be around 2 years, until the end of 2021. If you are a non-citizen who has a conviction for possession or delivery of marijuana in your past, now is the time to consult with an attorney if you may qualify to have the conviction dismissed and proceed to apply for permanent residence or citizenship with USCIS. Depending on your circumstances, you may have little time to do this, but in most cases it would be around 2 years, until the end of 2021.

Chicago Immigration Advocates Gets Another Win at the 7th Circuit Court of Appeals

2021-03-05 in Cases Won
Chicago Immigration Advocates’ Attorney Christine P. Varghese on September 8, 2020 won a Petition for Review before the Seventh Circuit Court of Appeals for a Cameroonian citizen whose claim of withholding of removal was denied by the lower Immigration courts . Tandap v. Barr, 2020 WL 5405603 (7th Circuit).
Our client, who had a previous deportation order, hired Ms. Varghese 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 argued that the Government 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. The Seventh Circuit vacated the Board’s decision remanding it to the Board to correct its errors.
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.