Last Updated on: 24th October 2023, 05:18 pm

How Lawyers Defend Clients Facing Deportation After a Conviction

Immigration law can be really complicated, especially when someone who is not a U.S. citizen gets convicted of a crime. If someone who is a permanent resident (green card holder) or has a visa gets convicted, they may face deportation or removal from the U.S. This is obviously a huge deal, so lawyers work really hard to try to defend their clients and help them stay in the country if possible.

There are a few main ways lawyers try to help defend immigrants facing deportation after a conviction:

Fighting the Criminal Conviction

First, the lawyer will look closely at the criminal conviction itself. Was there anything improper about how the conviction happened? Was the person’s constitutional right to effective counsel violated? Was there new evidence that could vacate the conviction? If the conviction gets thrown out or vacated, then there would no longer be grounds for deportation.

For example, in the case United States v. Cerna, a lawful permanent resident from El Salvador had his burglary conviction vacated because his constitutional right to counsel was violated when his lawyer told him deportation would not be a consequence of pleading guilty. This overturned the grounds for his deportation.

Post-Conviction Relief

If the conviction can’t be overturned, the lawyer will look for ways to get post-conviction relief. This means trying to get the charges reduced to something less serious that does not trigger deportation.

For example, in People v. Martinez, a lawful permanent resident from Mexico had his drug charges reduced through a post-conviction motion, changing the offense from a deportable felony to a non-deportable misdemeanor.

Cancellation of Removal

If post-conviction relief is not possible, the lawyer can apply for cancellation of removal. This is asking an immigration judge to cancel the deportation order and let the person remain in the U.S.. The judge looks at factors like how long they lived here, ties to the community, harm that deportation would cause, etc. There are strict eligibility rules though.

For example, in Matter of Arreguin, cancellation was granted for a single mother of 3 U.S. citizen kids, as her removal would cause exceptional hardship for the kids.

Asylum and Withholding of Removal

If the person faces persecution in their home country, the lawyer can apply for asylum or withholding of removal. These forms of relief prevent deportation to countries where the person’s life or freedom would be threatened.

For example, in Matter of L-S-, a Chinese immigrant who had been convicted of robbery was granted withholding of removal because he would likely face persecution for his Christian beliefs if returned to China.

Adjustment of Status

In some cases, it may be possible for the immigrant to adjust their status to that of a lawful permanent resident and avoid deportation. Factors like family relationships, length of U.S. residence, and hardship come into play.

For example, in Matter of Cavazos, an immigrant with multiple criminal convictions was able to adjust status thanks to her marriage to a U.S. citizen and long residence here.

Waivers

There are certain waivers available that forgive the grounds of inadmissibility or deportability for people who have convictions. Common waivers include:

• 212(h) waiver – forgives crimes like simple possession of drugs, theft, fraud
• 212(c) waiver – forgives aggravated felonies for lawful permanent residents
• 237(a)(1)(H) waiver – forgives crimes of moral turpitude

If the lawyer can make a case for one of these waivers, it may provide relief from deportation. For example, in Matter of Rodriguez-Cortes, a 212(c) waiver prevented the deportation of a man convicted of drug trafficking, thanks to his long U.S. residency.

Prosecutorial Discretion

As a last resort, the lawyer can appeal to ICE or immigration prosecutors to exercise discretion. This means asking them not to pursue deportation given the particular circumstances of the case. Factors like family ties, length of U.S. residence, and hardship to relatives are considered.

So in summary, there are many avenues lawyers can pursue to defend immigrants facing deportation after a conviction. From fighting the conviction itself, to applying for relief like cancellation of removal or asylum, to asking for discretion, lawyers work hard to keep families together and prevent deportation if there is any way under the law.