Criminal Law Green Card Renewal/Aggravated Felony

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naylorchic

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My husband is up for renewing his green card in a few years and I'm trying to get info. I know I'll have to contact our immigration lawyer, but just wanted a few opinions. I'm not going to write a book here to give you ALL the info lol. Basically my husband took a plea deal back in 2003 to an aggravated felony not knowing the immigration consequences. He is a legal permanent resident. If he had known we would have fought it because he really didn't do what he was accused of (but that's what they all say right? lol). Our lawyer recommended the plea deal b/c he felt where we live he wouldn't get a fair trial from a jury due to his race. Anyway it was a big mistake. He was taken into custody & removal proceedings were started. We filed an MAR b/c it was discovered that he wasn't sentenced according the the plea aggreement. He was sentenced in the aggravated range, but the plea aggreement was for the mitigated range. He was also sentenced as a level II offender based on a DUI that was someone w/ a different last name & different DOB (only had the same 1st name). The judge would not completely vacate the conviction. He only vacated the sentence, but wouldn't resentence him b/c he was in immgration custody. We filed an appeal w/ the BIA since he technically hadn't been convicted since he had no sentence. Surprisingly it worked! He came home & we were able to renew his green card (actually renew & remove the conditions since he was still in his 1st two years when this occured). I just had to attach the judges order vacating the sentence, the BIA order, and an explanation of everything that happened. Almost 7 years later he has never been sentenced. We spoke with our criminal attorneys about appeals, another MAR, etc. They ultimately decided it would be safer to do nothing. So that's what we've done. We just don't know what to expect when he has to renew his green card. I know they will do a background check when he trys to renew, but I don't really know what it will show. Will they see the ruling by the BIA and just renew it? Like I said I know we will have to go see our immigration lawyer again, but just wanted a few opinions from people who I'm sure know wayyyy more than me. Thanks!
 
No Worries!

Before I get to your question, I have to ask one of my own (in two parts) which is really begging here; why is your husband going for a green-card renewal and not U.S. Citizenship, and more to the point, why has he not become one in all these years? He is certainly eligible for it.

Anyways, as for your husband encountering any problems when applying for L.P.R. renewal, well, he is not going to and you should not lose any sleep in expectation of anything negative but a straight forward approval of the application. And of course I.C.E. and U.S.C.I.S. will have full access to all his records, but that is not going to be a hindrance in any shape or form and in fact you can, and should, take your cues from his green-card having been renewed when he was freshly released from detention.

When it comes to detention and removal, your husband is no longer on the I.C.E.'s radar because as you have so rightly stated, he was never convicted of an aggravated felony which is the prerequisite for placing an alien in removal proceedings.

Also, far be it from me to second-guess a licensed attorney, but what does perfecting an appeal have to do with renewal of green card and how can it possibly have a negative impact on the immigration proceedings that necessitates a wait-and-see advice. In any event, you can just forget about any appeals because all dead lines have most certainly expired after seven years and by the same token, no sentencing or resentencing will be forthcoming. The best thing you can do is to motion the court to expunge your husband's record and may even be able to have it sealed if the right attorney is hired to write and argue the motion.

So, all is safe up ahead and there is nothing to worry about, unless of course, he reoffends.

fredrikklaw
 
Thanks for you response!

Well the main reason he hasn't tried for citizenship is because of this conviction (or whatever you would call it at this point). Our immigration lawyer did tell us that it might be a possibility. She just didn't seem completely sure to tell you the truth. They had never had only the sentence vacated. They really didn't even think the BIA would accept it.

The reason I'm worried about renewing his green card is b/c I'm really not sure how this is showing on his record. I mean technically the way it is right now he's pled guilty (actually took the Alford, but same difference) and is waiting to be sentenced. I pulled his record once. That was a few years ago so I can't remember exactly. It seems like it did show on there, but didn't show a conviction date or was blank where it would normally said guilty, not guilty, no contest, etc.

As far as the appeal that our criminal lawyers considered. They were going to appeal the fact that the judge only vacated the sentence instead of the entire conviction. They said that the judge was supposed give my husband a chance to withdraw his plea since he was sentencing him in the aggravated range even though the plea said the mitigated range. They felt if they appealed they could probably get the conviction completely vacated. There was the chance they wouldn't though. If they didn't then the local authorities would know my husband was released and most certainly sentence him. He would still have a CMT and have to get a waiver that may not be granted. If he did win the appeal then he would be recharged and have to wager his chances with a jury. That is why we didn't pursue the appeal for the criminal conviction. I'm still under the impression that if the local government (the DA) discovered he was released they would immediately sentence him. I know we can no longer appeal b/c it had to be filed "within a reasonable amount of time" which has def passed. Are you saying that after a certain amount of time passes the DA's office can no longer sentence him? Does this vary from state to state? I had asked around on these boards about that previously and no one really knew. I did get a response about procedural due process I believe. I asked a different lawyer locally. She also felt like that the DA's would sentence him if they found out he was here. She said we could not use procedural due process unless the DA's office was aware he was here and still didn't sentence him.

Sorry I guess I ended up writing a book after all. Thanks again for your response. It has eased my mind some. I do hope that you're right.
 
I just remembered something. Another reason I'm worried about renewing his green card is because in 2001 when we renewed and had the conditions removed that didn't check his criminal record to my knowledge. They only asked if he had been convicted of any crimes since becoming an LPR. They did not take his fingerprints on both hands like they do when they checked his criminal record originally. I'm almost positive they will run his fingerprints when he renews this time.
 
Whatever will be, will be.
Worrying and wondering won't help.
When the time comes, all will be revealed.

If they deport him, and you love him, what's stopping you from following him to his native country?
Nothing!

You can come and go as you please.
So relax, whatever will be, will be!!!
 
Easier said than done lol. I had planned to do that back when all this happened. Then he got to come home. Mexico isn't the best place to live these days. Especially the border towns where we would have to live if I wanted to work in America & have my 2 kids educated in America. Guess we'll cross that bridge when we come to it. Would be nice to be mentally prepared for what to expect though. Instead of getting hit w/ it like a ton of bricks like last time.
 
If I had to choose between a woman I loved or my two children, that's a no brainer for me.

Bye, bye, Mary Lou; I choose my children over you!!!

:)
 
Our kids def come first for both of us. Guess we'll just have to see how this plays out. Maybe fredrikklaw will reply with more info too. I didn't think you could expunge a case that's still open. I thought you could only do that on a case that was dismissed or found not guilty. Oh well......Guess it's like you said. Only time will tell. Thanks for your response!
 
All is clear!

NAYLORCHIC:

Yes, that is exactly what I am saying here, which is the fact that there is NOT going to be any resentencing and that is it; really!

I am sure that your motion for appropriate relief (MAR) did not go unopposed and that the D.A. appeared en force and tried to argue against the motion, and as such, had a certain time frame within which to appeal the judge's partial granting of your motion which was to vacate the erroneous sentence. This time frame at trial court level is normally 30 days and around 90 days for federal court remanded cases and is extended only by order of court or by stipulation of the parties and only for a reasonable amount of time and not for 7 years and still counting. And the other factor which I could not see in your postings is whether the judge even remanded the case for resentencing which does not sound like it here.

There is at the present time and has been for over 10 years, a very cozy and buddy-buddy relationship between the police department, the I.C.E., the criminal courts, the office of district attorney, and the immigration courts including Board of Immigration Appeals and so whatever happens at one is noticed in the other instantaneously.

Last year, an L.P.R. was arrested for felony possession of a controlled substance and dully transported to jail for processing within 45 minutes of the arrest where and when he called a Bail Bonds to secure bail, only to be told by the bondsman that he could not secure release on bail because there was an "immigration hold" on him. Now, this happens even though the police are not permitted to concern themselves with immigration status of a suspect. The L.P.R. spends five weeks in jail before being sentenced to three years of summary probation, but on his release, he is picked up by two I.C.E. agents right there in jail and taken to detention.

The moral of this little (true) story is that if the immigration, or the district attorney, or the cops, or the judge, or BIA, and whoever else remotely connected with your husband's case wanted to move against him, or had any legal cause to move against him, it would have been done the second he got out of detention in El Paso.

And when an outfit such as the I.N.S., or U.S.C.I.S., or I.C.E., or a police officer asks an applicant or suspect if he has ever been arrested or been to prison, it is not because they will take his word for it or have no means of checking out the response, quite the contrary; it is because they want to see if the person lies.

The criminal case is therefore closed and has been for years, which means you can petition the court to expunge it.

fredrikklaw
 
fredrikklaw

Thanks again for all of your info! Maybe we will contact a local expungement attorney. Know of any good ones in NC:) ? We still have 4 years before his green card expires so that should give us plenty of time. If we are able to get that expunged then I could probably skip hiring our immigration lawyer to renew his green card. I did all the forms last time so I could probably do it again. I was just going to hire her in case we ran into any bumps in the road. If all goes smoothly after that maybe he can start studying for the citizenship test.

I did want to ask one thing about your post. You said "And the other factor which I could not see in your postings is whether the judge even remanded the case for resentencing which does not sound like it here" If the judge had remanded the case for resentencing would that make a difference? Our attorneys tried REALLY hard to get the judge to go ahead and resentence him then (without him present). They were hoping to possibly get the waiver for the CMT since it might no longer be an aggravated felony if sentenced in the mitigated range. At the time she didn't think the BIA would go for only the sentence being vacated. He absolutely refused to sentence him to a felony w/o him present (we already had to get my husband to sign a waiver so that we could have the hearing for the MAR w/o him present). I can't remember the judge's exact words. I would have to check the transcript or maybe the order he signed. I'm almost positive he said he would sentence him when he got back. He even said he would sign something to get him brought back to sentence him. A habeas corpus maybe (BIG maybe). Our attorney explained he was in immigration custody & that wouldn't work. He said that was all he could do. I can check that this evening to see exactly what it says, but from what you've said it seems it doesn't matter. Thanks again!
 
I emailed a local expungement attorney to see what they said before I made a consult. This was the reply I got "Unless he was convicted of simple cocaine possession of under 1 gram, felonies can never be expunged. In fact, being convicted of a felony prevents the possibility of getting any other charges expunged either". From what I've read online it's pretty hard to get something expunged in NC. If I understood your previous posts correctly though it won't effect his immigration status whether it's expunged or not. Guess we'll just let that slide and keep my fingers crossed it goes smoothly with immigration in a few years........
 
You've probably confused expungement or expunction with a pardon. A pardon is even harder to obtain. Based on what you've previously posted, you can forget that in NC, too.
 
army judge said:
You've probably confused expungement or expunction with a pardon. A pardon is even harder to obtain. Based on what you've previously posted, you can forget that in NC, too.
Click to expand...

Yup that's what I'm thinking too. An expunction (in NC anyway) is to only clear off misdemeanors so they won't show on your record when trying to buy a house, get a job, or something. I think you can get felonies off only if they were dismissed or found not guilty. I would "think" that one could argue that my husband's was dismissed, but the plea wasn't.....only the sentence. I believe you can also get off certain felony convictions if the defendent was under 18 or 21 (which wasn't his situation). Oh well....."Whatever will be, will be" ;)
 
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