Dear Lawyer,
QUESTION:
I am incarcerated at this
present moment and I need your assistance with one and two
problems pertaining to 'Immigration and Deportation".
Right now I have 7-10 months
remaining on my sentence, and I have been notified by "US
Homeland Security" of my detainer for deportation. I have 3
felonies: Possession of firearm by felon, Common Law Robbery and
possession of marijuana with intent to sell and deliver. The
sentence I received for them was 6-8months for the marijuana and
15-18 months for the firearm and 13-16 months for the common
law. They ran concurrent with the 13-18 months and I have been
incarcerated since February 2007.
My problem is that I have been in
America since 1999/2000 until now 2008, 8 years to be exact. I
came here when I was 16 going on 17 years of age. Now I am 23
years of age. I don't have anyone to go home to, my parents are
both citizens of America. My Mom, Aunts, Grandmother,
Great-Grandmother and sisters are all citizens of the US and so
is my Dad. I came here with legitimate documents, I went to
school etc. All I know is America. And right now I am in a
situation where I'm alone and desperately need help.
So, my question to you is; Do I
have a chance of not being deported back to Jamaica? Can they
just up and send me back knowing my immediate family are all
here? I mean, I have no contacts in Jamaica, no addresses
whatsoever. I'm worried, knowing that August is only months
away.
Please help.
ANSWER:
In response to your
questions:
1. There are several
potential forms of relief available to resident and nonresident
aliens currently awaiting removal proceedings. For example, an
alien might apply for:
- Cancellation of Removal
(for a resident alien)
- Cancellation of Removal
(for a nonresident alien)
- Waiver of deportability
- Voluntary departure
- Asylum
-Deferred Action
-Stay of removal
-Relief for battered spouses or
children of U.S. citizens
-Private bills
Each individual case if
different. The judge will carefully examine the specific
circumstances of the individual case and compare it to the
requirements for the chosen form of relief. The decision of the
judge to grant any form of relief is discretionary not
mandatory.
In the instant case, you may
apply for one of the available forms of relief; however, there
is no guarantee which way the judge would decide. Commission of
an aggravated felony makes an alien deportable at any time after
admission.
2. The U.S. government can remove
aliens back to their country of origin whether or not their
immediate family members reside in the United States. The judge
will take it into consideration that an alien’s family members
are in the U.S. because the immigration laws tend to promote
family unification. However, this fact alone is not enough to
prevent removal from the country.
In the instant case, we
certainly recommend that you hire a qualified representative to
assist you during your removal proceedings. It is important for
the representative to examine the elements of each crime
committed, the sentence received for each crime, and your
complete criminal and personal background. Your representative
will suggest which forms of relief you should apply for. You
should understand that having been convicted of an aggravated
felony, including what may amount to drug trafficking, limits
your chances of being granted relief. However, you should
certainly make every effort to properly present your case to
court to give yourself the best possible chances.
The following is a brief
overview of the crime-related grounds for deportation:
One of the most important trends
in immigration law and policy over the past decade has been the
growing emphasis on the swift deportation of noncitizens with
criminal convictions. Congress has added new deportability
grounds for criminal activity and made noncitizens with
convictions ineligible for certain forms of relief from
removal. Key has been the growing reliance on the term of
aggravated felony.
On average, close to 40,000 noncitizens have been removed on
criminal grounds each year for the past several years.
Aggravated Felony
Some of the examples of
aggravated felony
are: murder, rape, sexual abuse of minor; illicit drug
trafficking; firearms trafficking; crimes
of violence; theft offenses
(including receipt of stolen property), etc.
2.
Crimes Involving Moral
Turpitude
For most of the past hundred
years, conviction of a crime involving moral turpitude was the
chief criminal deportation ground. See INA Section 237(a)(2)(A)(i),
(ii)
There is no true workable
definition of moral turpitude, however, the close definition
says: an act of baseness, vileness, or depravity in the private
and social duties which a man owes to his fellow men, or to
society in general, contrary to the accepted and customary rule
of right and duty between man and man.
I-2
Other definitions of moral
turpitude: an act that was at common law intrinsically and
morally wrong, and anything done contrary to justice, honesty,
principle or good morals.
Some examples of violation of
moral turpitude:
a.
Voluntary manslaughter
b.
Involuntary manslaughter
c.
Tax evasion
d.
Possession of stolen property
Some examples found not to be
violation of moral turpitude:
a.
Escape from prison
b.
Carrying a concealed weapon
Gray area:
a.
Breaking and entering – depends upon object of unlawful entry:
i.
No moral turpitude where evidence does not disclose that alien
intended to permanently deny owner possession of property.
Matter of M_, 2I&N Dec.721 (AG 1946).
ii.
Moral turpitude if alien entered
with intent to commit larceny. Matter of Moore, 13 I. & N. Dec.
711 (BIA 1971).
3.
Drug Offenses
For more than half a century,
the INA has mandated the deportation of persons convicted of
drug offenses. The current version of this deportation ground
is INA Section 237(a)(2)(B). In 1990, Congress amended the
deportation ground for any narcotic drug addict to include any
alien who is a drug abuser or addict, even in absence of
criminal convictions.
