By Attorneys Gregory J. Boult & Nancy E. Miller

Yogi Berra once said “it ain’t over till it’s over”. The truth is, even then, it may not be over.  Many non-citizens have been placed into removal proceedings as a result of a criminal conviction.  If the Department of Homeland Security said their conviction was a crime of violence as defined under a specific code section and they were sentenced to a year or more, they heard the dreaded words “aggravated felony” leave the immigration judge’s mouth.  Those words were probably followed by an order of removal – especially if the non-citizen had previously been admitted to the United States as a lawful permanent resident.  They may have appealed that decision and lost.  They may have appealed in federal court and not succeeded because the law was against them.  They may have spent years going from lawyer to lawyer hoping to hear that there was something that could be done.  Sadly, the answer was usually that there was not.  It was over.  But, now, thanks to a new decision from the Ninth Circuit Court of Appeals, it’s not over.  In fact, for many people, the new fight may have just begun.

The court challenge which led to this dramatic legal change stems from the case of a Filipino national who had been twice convicted of burglary after being granted lawful permanent resident status.  As a result, he was sentenced to two years in prison for each of his two felony convictions.  Due to these convictions, he was placed into removal (deportation) proceedings where he was charged with having been convicted of two crimes of violence, and thus of two aggravated felonies which warranted the loss of his green card and his deportation.  Subsequently, the Immigration Judge ordered him deported for having been convicted of two crimes of violence, and this order was upheld on appeal by the Board of Immigration Appeals.  This decision, however, was appealed to the Ninth Circuit Court of Appeals.

On appeal, the Ninth Circuit Court of Appeals took issue with the vague definition of what exactly constituted a crime of violence under the immigration laws.  Specifically, the Court expressed concern that the law was so vague that an individual could not necessarily know what conduct would be deemed a crime of violence, and that Immigration Judges were being placed into a precarious position where they were often compelled to speculate as to whether a particular conviction in a particular case actually qualified as a crime of violence.  The Court ultimately concluded that this vagueness was legally improper and contrary to the Constitution, and therefore found that the definition of a crime of violence was unconstitutionally vague.

This finding by the Ninth Circuit Court of Appeals has a profound and dramatic impact as many individuals who have been previously ordered deported from the United States might now be able to seek the reopening of their immigration cases and be legally permitted to remain in the United States.  Even if the non-citizen was ordered deported years or decades ago, it may be possible to reopen their court case as a result of this change of law.  Once the case is reopened and the deportation order vacated, the alien may no longer be subject to removal.  In a different scenario, the alien may now be eligible for a waiver of their removability.  Depending on the potential waiver, the alien will have to show that they are rehabilitated and deserving of a favorable exercise of discretion. They may have to show that their U.S. citizen or lawful permanent resident parent, spouse or son or daughter would suffer extreme hardship if the alien were forced to leave the U.S.

Those currently in removal proceedings who had no hope of relief may now have a fighting chance to keep their green cards.  Upon a successful fight in Immigration Court, they may even be eligible to apply for citizenship.

Those currently in criminal court should hire a lawyer experienced in criminally-related immigration matters to consult with their criminal defense lawyer to try to fashion a plea agreement that will not result in their being ordered removed.

Anyone who has be ordered deported from the United States because of a criminal conviction, or told that they cannot immigrate to the United States because of a criminal conviction, should consult with an experienced and knowledgeable immigration attorney to determine how this case, and other recent legal developments regarding criminal convictions and the immigration laws, might affect their current or future immigration status in the United States.

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