Tracym

Ok, so this is someone we met - not us (yes really someone else )

Fellow came here on a K-1, married, had a child.

Somewhere in there, got conditional green card.

Before he removed conditions, he was divorced. So, he can file for removal of conditions on his own.

BUT - he was convicted of a felony, for getting in a fight (I don't know details). Obviously, getting a good lawyer is one thing he will be doing.

But he was told, he would be basically automatically deported. Is that correct, or is there any waiver etc. available?

If he were remarried, would it make any difference?

If he is deported, will he ever be able to see his young son (any kind of visitor's visa)?

He is not yet in removal proceedings.

Seems a nice enough fellow on brief acquantance, I hope his case is not hopeless.

Tracym

Hunting around the net, it sounds like an "aggravated felony" is a disaster, perhaps a non-aggravated felony might not be.

And it appears a crime of violence with a year or more sentence imposed (suspended or not) is considered aggravated.

Sound right?

Martijn.Vels

Deportable aliens:
(a) Classes of deportable aliens
Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
...
(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
(ii) Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
(iii) Aggravated felony Any alien who is convicted of an aggravated felony at any time after admission is deportable.
(iv) High speed flight Any alien who is convicted of a violation of section 758 of title 18 (relating to high speed flight from an immigration checkpoint) is deportable.
(v) Failure to register as a sex offender Any alien who is convicted under section 2250 of title 18 is deportable.
(vi) Waiver authorized Clauses (i), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.

So, basically, yes, depending on the crime, he would become directly deportable, however, he also has a rigth to appeal which could drag the process along for a good while.
Depending on circumstances (and on how 'aggravated' has expanded from formerly serious offenses (such as rape and murder) now to also include theft (sometimes petty theft) and violent misdemeanors, this could easliy be judged aggravated felony (was there blood, injury, knifes, weapons of any kind etc involved? Etc)
L.A.W.Y.E.R. N.O.W. smell all over.

I am not an expert, but afaik: 'it would not make no difference at all'

Not in the US for a long period. His son might be a mitigating factor if it comes to removal proceedings me thinks.

I once heard a lawyer say: "There are no hopeless cases. Only difficult and extremely difficult cases"

Tracym

Hi, and welcome to the forum

He already has a lawyer, but that one doesn't seem to knowledgeable. He is looking for another. Thankfully, he's not being stupid about it and will certainly be getting more legal advice.

I'm curious myself, and of course if I find out anything useful to the fellow I will pass it on.

Not a close friend or anything, I don't have the blood/gore/weapons details about the fight.

I've seen it written as a crime where a sentence of 1 year COULD be imposed - and seen it discuss as if it WAS imposed. So I'm not sure which definition is used.

Also, I don't know if it is discretionary at all.

Folinskyinla

Hi:

Neither do I. And I wouldn't even begin to venture a guess. BTW, your friend will be the most unreliable person to describe what happened. I ALWAYS ask for the paperwork. When the client or potential client starts "But, let me tell you what happened..." I will politely respond "The only thing that counts right now is what the paperwork says."

Tracym

I can believe that.

I wasn't wondering IF he will be deported, that's obviously up to his lawyer (etc.) to figure out.

I had just never thought of what happens with a felony charge (us being most determined to not get any!), and wondered if there were waivers etc. or if he'd just be out of luck for sure.

Wouldn't want to be him, that's for sure. I do feel sorry for the guy - on the surface anyway he doesn't really seem a bad guy, and if he's deported, I guess he'll pretty much lose his son. Of course, fights, felonies, etc. are not good - but doubt he's any sort of career criminal, and he does love his son.

HoosierDaddy

I didn't realise that a fight would be a felony. Did he punch a cop or something?

Folinskyinla

Hi:

First of all -- was it a "felony" at all? It can depend upon state definitions. In California, it is possible to be convicted of a "felony" charge, but if the sentence is under a year, it will then be a "misdemeanor" by sentence.

Also, please note that the rules are different for inadmissiblity and for deportation.

And there may be waivers, or not.

Folinskyinla

Hi:

There are fights and then there are fights. Fistfight only? Or were broken bottles [e.g. "deadly weapons"] involved? If a cop is involved, there were be other statutes involved.

Tracym

Thank you for the info - I'll pass it along.

I don't know the details, and might never know. But it sounds like depending upon the circumstances, he may have a chance.

Hope he picks a good lawyer.

Folinskyinla

Hi:

He may have no chance. Don't know. If he is also in Chicago, have him give Kevin Dixler a call.

Tracym

He is in the Chicago area - and I had already given him that name actually.

Thank you for the help.

bluesails

I thought this discussion of recent decision regarding Post Conviction Relief was intriguing.

SECOND CIRCUIT -- POST CON RELIEF - EFFECTIVE ORDER - COURT'S ORDER GRANTING MOTION TO WITHDRAW A PLEA ELIMINATES A CONVICTION FOR IMMIGRATION PURPOSES Puello v. BCIS, ___ F.3d ___, ___, 2007 WL 4440916 (2d Cir. Dec. 20, 2007) (a criminal court's order withdrawing a plea eliminates the conviction for immigration purposes; an interpretation of the statutory definition [of conviction to the contrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a "conviction" for immigration purposes, because the "conviction" would be established on the date of the entry of the plea. We reject this reading because "[a] statute should be interpreted in a way that avoids absurd results."), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000). [Now there's a novel idea, especially in immigration...]
CD:11.4;AF:6.4;CMT:10.4;PCN:5.52 http://www.ilw.com/articles/2008,0424-tooby.shtm

There may be lots of options for your friend, but DEFINATELY need an attorney. Others to consider that specialize in immigration/criminal law are Norton Tooby (very expensive but lots of experience) http://criminalandimmigrationlaw.com/ or http://www.sfatty.com/. (But both in N.CA)

Tracym

Immigration is truly an odd beasty. Thanks for the info!

Folinskyinla

Hi:

Weird fact pattern, and the alien lost. There seems to be underlying the case that he was able to avoid removal, but not mentioned.

But the point of that citation is that some people would consider it "absurd" that your aquaintance be allowed to remain in the United States.