This week’s #MythMonday asked:
Myth or Fact? A criminal record (even old juvenile misdemeanors) can affect someone that has been a permanent resident for many years.
The short answer is: YES! Absolutely.
Why It’s a Fact?
Remember last week’s #FactFriday post discussed the “worthiness test” to obtaining a green card? Well, that test is ongoing until you become a U.S. citizen. If at any time, your criminal history comes to the attention of ICE, they can and often will detain you and place you into removal proceedings.
The definition of criminal conviction in immigration is relentless. It does not require you to be actually found guilty by the court. Your charges – even juvenile charges – can be dismissed, sealed, and expunged AND STILL negatively impact your permanent resident status.
To illustrate, we are going to discuss the story of a client our office represented.
Jason E. is a private chauffeur for a car service company in Greenwich, CT. He’s been a legal resident for 17 years. He is married and has 5 children. He is the primary breadwinner in the family. He pays taxes, goes to church and is generally an upstanding member of his community. His criminal record is clean.
The BIG little mistake
Fifteen years ago when Jason was a young adult recently out of high school, he was hanging out with some friends and trying to impress a girl. The group of friends were in his car and they decided to smoke some marijuana. Jason couldn’t pass it up, of course, lest the girl think he’s “not cool” or whatever kids say these days. The police drove past the car, turned around, and came back with their lights flashing. Jason is arrested for simple possession of approximately 2 grams of marijuana.
He was terrified that he had ruined his future. His legal aid attorney tells him that if he pleads guilty the prosecutor has agreed to an ACD (Adjournment in Contemplation of Dismissal). Essentially, an ACD for a one time offense that is only a violation will dismiss the charge and the record will be sealed as long as Jason stays on the right side of the law for at least 1 year. Let me reiterate that the charge was NOT a felony, nor was it a misdemeanor – it was a violation – a small fine at most without the ACD. A year goes by without incident and the charges are dismissed – as in he was not found guilty nor was the arrest on his record.
Jason goes on about his life. He marries and has children and never has another encounter with law enforcement again. He travels abroad to visit his family in Europe and returns multiple times without incident. Until 2017. He and his wife take a second honeymoon to the Cayman Islands.
Upon his return, he is immediately detained by Customs and Border Patrol and charged as an arriving alien with a controlled substance offense conviction that makes him inadmissible. Jason does NOT in fact have a criminal conviction. His record is clear and all charges against him were dismissed. So, how is he being detained and placed at risk of deportation?
What is a conviction? (How is this even possible?)
For immigration purposes, even admitting that you committed a crime – whether or not there is an actual conviction by a court of law – is considered a “conviction” for immigration purposes. Since he was reentering the United States after he returned from the Cayman Islands, he was considered to be requesting “admission” to the U.S and was inspected as if this was his first time entering the country. This places him at a higher standard than a resident that is not requesting admission. It also subjects him to detention while his removal case is being heard in Immigration court. An immigration judge is not authorized to set a bond for his release, because the law only allows the Department of Homeland Security (DHS) to parole an arriving alien. DHS rarely paroles anyone that isn’t a child or mother.
The Fight to Get Back to His Life
Jason had never spent a night in jail before he was detained by immigration. He has spent close to 70 days in a local county jail used for immigration detention. Calls home to his wife and children cost upwards of $15 per minute and are limited to 15 minutes at any one time. After 30 days of detention and absence from work, Jason is fired from his job because they consider his absence “job abandonment.” Jason’s wife has to get a second job to make ends meet and she and his family pool their resources to hire our office to represent him.
Not only is his life on hold but also that of his wife and kids. His kids are scared, confused and miss their daddy AND their mom who is now working almost every waking hour. They are financially, mentally, and emotionally drained.
Jason will very likely win his case in immigration court and be able to remain in the United States. But, not before his life is torn apart while he is kept in a jail cell waiting for the overextended and backlogged immigration court system to find time to hear his case. This could take YEARS.
ANY criminal history – no matter how small – can subject even LAWFUL immigrants to detention and risk of deportation.
How can we help?
At Lacroix Ramos, we ALWAYS tell the client the whole truth about their options for legalizing their status. We will not take money from a client that we know does not have a viable and genuine option for obtaining or defending their legal status. Even if that means we lose the sale and don’t get your money.
If you need to know what options are available, call us at (914) 719-7570 and schedule a free 15 minute phone consultation with an attorney. You can also complete an intake form here, and we will call you to arrange a consultation. If our attorneys believe you have options, we will invite you to a full consultation where we can explain everything to you and your loved ones. If you do not have any viable options, we will tell you that also.