• Proof of a stable address;
• Proof (in the form of birth certificates, U.S. Passports, Citizenship Certificates) of the existence of family members residing in the U.S. legally. If the family member is a legal permanent resident, you can submit a copy of their resident alien card (“green card”);
• Evidence of employment including tax returns and/or a letter from an employer;
• (If applicable) evidence of property ownership such as a copy of the deed to a home or copy of a mortgage statement;
• letters from friends and family members attesting to the good moral character of the detainee;
• evidence of service to the community such as Church participation or volunteer activity;

If your loved one is currently in immigration detention, it is crucial to consult with a seasoned immigration attorney with experience in immigration bond hearings and deportation defense.   Contact our office now to schedule an initial consultation and explore all options.

• Prueba de una dirección estable;
• Prueba (en forma de certificados de nacimiento, pasaportes estadounidenses, certificados de ciudadanía) de la existencia de miembros de la familia que residen en los EE.UU. legalmente. Si el miembro de la familia es un residente permanente legal, puede enviar una copia de su tarjeta de extranjero residente (“green card”);
• Evidencia de empleo, incluyendo las declaraciones de impuestos y / o una carta de un empleador;
• (Si procede) la evidencia de la propiedad como una copia de la escritura de una casa o copia de una declaración de la hipoteca;
• cartas de amigos y miembros de la familia que acredite el buen carácter moral del detenido;
• pruebas de servicio a la comunidad, tales como la participación de la Iglesia o la actividad voluntaria;

Si su ser querido se encuentra actualmente en detención de inmigrcion, es fundamental consultar con un abogado de inmigración experimentado con experiencia en audiencias de fianza de inmigración y defensa de deportación. Póngase en contacto con nuestra oficina hoy para programar una consulta inicial y explorar todas las opciones.

Now one might wonder whether an Immigration Judge has any authority to grant Francisco relief from deportation. After all, in determining whether to issue an order of removal, can’t the Judge consider Francisco’s ties to this country and the hardship that would result from his removal from the United States?  To answer that question requires a brief examination of the specific immigration consequences stemming from Francisco’s conspiracy to sell cocaine conviction. First, such conviction is most likely a “drug trafficking” aggravated felony under Immigration Law, a classification that carries the harshest consequences for non-citizens and forecloses virtually all forms of discretionary immigration relief.[iii] An aggravated felony disqualifies a lawful permanent resident such as Francisco from applying for “cancellation of removal,” an application that if granted allows an Immigration Judge discretion to waive certain grounds of deportation and in essence forgive non-citizens for their mistakes, allowing them to keep their green cards under certain circumstances.[iv] An aggravated felony also disqualifies a non-citizen from seeking asylum and in most cases a related form of relief known as withholding of removal. [v] So that basically leaves aggravated felons the option of applying for deferral of removal under the Convention Against Torture – a form of relief that requires applicants to demonstrate that if deported, they would face a clear probability of torture at the hands of or with the acquiescence of a public official.[vi] Needless to say, this is a very difficult form of relief to obtain.   And so given these extremely harsh legal consequences, Francisco was left with no recourse but to essentially beg a government official to exercise compassion and to please not rip his life apart (not to mention the lives of his wife and children) based on the one unfortunate mistake he made and presumably in light of the U.S. Attorney’s concession that he posed no danger to the community.   And last week, that government official, in a manner that can only be described as Kafkaesque, responded (in a one sentence email) that she would not grant such request. While underscoring the tragedy of our immigration policy towards non-violent drug offenders, this story also highlights how crucial it is for non-citizens to avoid at all costs any conviction constituting an aggravated felony, and if possible any drug conviction, as the consequences of such offenses (as this story illustrates) are extraordinarily severe.

[i] See Rene Feltz “Why US drug reform still couldn’t stop deportation of two immigrants,” The Guardian, April 1, 2016, http://www.theguardian.com/us-news/2016/apr/01/us-immigration-deportation-drug-reform-junior-francisco

[ii] Id.

[iii] See INA §§ 237(a)(2) (A)(iii); 101(a)(43)(B).

[iv] See INA §240A(a).

[v] See INA §208(b)(2)(B)(i).

[vi] See Matter of J-F-F-, 23 I&N Dec. 912, 917 (AG 2006) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). See also 8 C.F.R. § 208.16(c)(2).

In the last week of July 2015, I had the privilege of volunteering with the CARA Family Detention Pro Bono Project at the Southwest Family Detention Center in Dilley, Texas. CARA is a highly dedicated coalition of attorneys and non-attorney volunteers dedicated to providing legal and advocacy services to the women and children detainees in Dilley and to ending family detention.   As a consequence of my participation as an attorney volunteer, I observed first hand the psychological violence that U.S. family detention policy continues to inflict on Central American refugee women and children. I also met a lot of inspiring and dedicated volunteers and the experience was one of the most meaningful ones I have had as an attorney.

In two scathing orders, a federal judge has declared the Obama administration’s policy of detaining minors to be in violation of a class action settlement agreement reached in 1997 and therefore illegal.[1] And yet, the administration continues to aggressively pursue family detention based on frivolous legal theories that barely pass the laugh test.   The administration’s family detention policy becomes even more grotesque if one considers the enormous profits Correction Corporation of America (the for-profit private prison contractor employed by the Federal government to house the women and children at Dilley) makes off of the human suffering perpetuated at the internment camp it euphemistically refers to as a “family detention center.”[2]

The overwhelming majority of the women and children I represented in bond proceedings were from Honduras, El Salvador and Guatemala. Nearly all were under 30 and some were as young as 18. All were jailed with their children. Most were fleeing unspeakable violence at the hands of gangs, drug traffickers, and in numerous instances, domestic violence, not to mention extreme poverty. And of course, all of the women endured enormous hardships in traveling from their countries through Mexico before ultimately arriving in the United States.   Many of the kids I encountered were sick with colds, earaches and coughs and their mothers frequently complained of inadequate or virtually non-existent medical care at the facility.

A palpable sense of lawlessness pervades the detention facility in Dilley. During the week I was there, ICE officers summoned women detainees (nearly all of whom had been represented by CARA attorneys) to a court room (outside the presence of counsel) in an effort to force them (through misinformation and coercion) to forgo their right to seek a monetary bond and instead agree to be released with an ankle bracelet – an embarrassing and stigmatizing apparatus that although allows a detainee to be released without putting up any money nevertheless requires periodic reporting in person to ICE for potentially the entire duration of the woman’s court proceedings, which once released from custody, could amount to as long as five years. Naturally, none of this was explained to the women.   And the use of the courtroom by ICE for this purpose (aside from violating the women’s right to counsel) caused confusion and disorientation as many detainees mistakenly believed that they were attending a court hearing, when in fact they were not.

A particularly zealous CARA attorney and colleague of mine learned that one of his clients had been summoned to one of these meetings after a Judge had ordered her released from custody subject to a monetary bond and was erroneously informed by ICE at this gathering that she must accept release with an ankle apparatus.   So the attorney raised hell with ICE and then filed a motion with the Immigration Court seeking redress for the numerous violations incurred by ICE as result of this practice. By the end of the week, he was forcibly removed from facility without explanation.

Notwithstanding the pathetic and disingenuous arguments of the Obama administration, family detention cannot be justified either morally or legally.   And it is particularly troubling that it continues despite its blatant illegality and in the absence of any mass protest in this country. Hopefully coverage of the Syrian refugee problem will spark a renewed emphasis and comparable expression of compassion for the women and children seeking refuge at our own southern border.

[1] See Cindy Carcamo, “Judge Orders Prompt Release Of Immigrant Children From Detention,” Los Angeles Times, August 22, 2015, http://www.latimes.com/nation/la-na-family-detention-children-20150821-story.html

[2] See Betsy Woodruff, “Prison Gets Rich Locking Up Preschoolers,” The Daily Beast, September 8, 2015, http://www.thedailybeast.com/articles/2015/09/08/america-s-most-lucrative-preschooler-prison.html; Aseem Mehta, “A Jail For Babies: Absurdity and Abuse At The American Border,” Fusion, July 22, 2015, http://fusion.net/story/170590/a-jail-for-babies-absurdity-and-abuse-at-the-american-border/

1. A drug conviction need not be a felony to trigger deportation. Indeed, a misdemeanor conviction for mere simple possession or being under the influence of a controlled substance is potentially enough to permanently banish one from the United States. Under U.S. immigration law, any conviction related to controlled substance as defined under Federal law is a potentially deportable offense.[1]
2. A drug conviction involving the sale of a controlled substance is likely an “aggravated felony” under immigration law, the most serious crime classification with the most severe immigration penalties. Essentially, any drug crime with a “trafficking element” is an aggravated felony.[2] Individuals convicted of drug trafficking aggravated felonies are ineligible for all forms of discretionary immigration relief from deportation including cancellation of removal, asylum, adjustment of status and voluntary departure. To understand what that means, consider the case of a lawful permanent resident (“green card” holder) who is convicted of a non-aggravated felony drug crime, say for example, simple possession of cocaine.   Although a deportable offense, it is not an aggravated felony and the individual could still potentially keep his or her green card by applying for cancellation of removal – a form of relief available to lawful permanent residents who have had their green cards for at least five years, resided in the U.S. continuously for at least 7 years after having been admitted in any status and whom have not been convicted of an aggravated felony.[3] In such cases, an Immigration Judge has discretion to “cancel” deportation and allow the applicant to keep his or her green card. The applicant can submit evidence and testimony regarding family ties to the United States, work history, service to the community, rehabilitation and hardship in the event of deportation. By contrast, no such relief is available to a person convicted of drug trafficking aggravated felony. Often, the only form of relief available to individuals convicted of a drug trafficking crime is protection under the Convention Against Torture – a very difficult application to get approved since it requires proof that the applicant would more likely than not suffer torture by or with the acquiescence of the government if removed.[4]
3. Non-citizens placed into immigration custody as a result of non-violent drug convictions are subject to mandatory detention and must remain detained for the duration of their removal proceedings. [5] The drug conviction does not have to be one involving the sale of a controlled substance.  A misdemeanor conviction for simple possession or being under the influence of a controlled substance is enough to trigger the mandatory detention provisions.   Conversely, a single misdemeanor conviction for domestic violence or theft (where the sentence is under 180 days) does not disqualify an immigrant detainee from getting bond.[6] Nor does a misdemeanor conviction for driving under the influence of alcohol.[7]
4. Individuals convicted of theft or domestic violence have a better chance at qualifying for a green card than people who have been convicted of non-violent drug offenses.   Undocumented individuals applying for a green card based on a family or employment based petition must demonstrate that they are admissible to the U.S. A simple non-violent drug possession crime renders a non-citizen inadmissible to the United States.[8] Similarly, a conviction for a crime involving moral turpitude (which typically includes theft, domestic violence, aggravated assault and fraud crimes) also makes a non-citizen inadmissible.[9] However, inadmissibility stemming from crimes involving moral turpitude can be waived if the applicant demonstrates either that (1) the conviction occurred more than 15 years ago and the applicant is rehabilitated and not a danger to the national welfare, safety or security of the U.S.; or (2) deportation or exclusion would result in extreme hardship to a spouse, parent or child of the applicant who is U.S. Citizen or lawful permanent resident.[10] Conversely, drug crimes cannot be waived except in the case of a single conviction for simple possession of 30 grams or less of marijuana.[11] In effect, U.S. immigration law is more forgiving in the case of domestic violence than it is with respect to non-violent drug offenses.
5. The government is aggressively pursuing deportation cases against individuals with drug offenses. In the last five years alone, 260,000 people have been deported from the United States for drug offenses.[12]  A recent report by Human Rights Watch, “A Price Too High: U.S. Families Torn Apart by Deportations for Drug Offenses,” reveals that “[d]eportations after convictions for drug possession in particular have spiked, increasing 43 percent from 2007 to 2012” and that “[f]or more than 34,000 deported non-citizens [removed during this time period], the most serious conviction was for marijuana possession.”[13] Grace Meng, the author of the report states that “[t]he Obama administration has explicitly recognized the many failures of the US criminal justice system, and particularly its disproportionate impact on minority and poor communities.   But by designating all immigrants convicted in that system as dangerous criminals, the administration is perpetuating these failures and devastating many of the same communities.”[14]
6. The government has the burden to establish by clear and convincing evidence that a lawful permanent resident has been convicted of a deportable crime.[15]  Not every drug conviction is a deportable offense.   The conviction must constitute an offense punishable under Federal law. In regards to drug crimes, most people are prosecuted under state criminal law, which often regulates a broader array of controlled substances than that punished under Federal law.[16]  If you have been convicted of a drug offense and are now facing deportation charges as a result, it is the government’s burden to prove to the Immigration Judge that you have been convicted of a drug crime punishable under Federal law. In making this determination, an Immigration Judge can only consult the language of the statute under which you were convicted and a very limited and specific set of court records in your criminal case file.[17] This generally does not include police or probation reports. Again, ICE must establish that you are removable by clear and convincing evidence. Where the record is vague and inconclusive, the government fails to meet its burden and removal proceedings must be terminated.[18] If you are facing deportation as a result of a drug conviction, call our office today for an initial consultation to protect your rights and begin exploring your options.

[1] See INA § 237(a)(2)(B)(i).

[2] See INA §§ 237(a)(2) (A)(iii); 101(a)(43)(B).

[3] See INA §240A(a).

[4] See Matter of J-F-F-, 23 I&N Dec. 912, 917 (AG 2006) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). See also 8 C.F.R. § 208.16(c)(2).

[5] See INA §236(c).

[6] See id; INA §212(a)(2)(A)(ii)(II).

[7] See Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999) (holding that simple DUI is not a crime involving moral turpitude).

[8] See INA §212(a)(2)(A)(i)(II).

[9] See INA §212(a)(2) (A) (i)(i).

[10] See INA §212(h)(1)(A)-(B).

[11] Id.

[12] See Ed Pilkington “260,000 deported from U.S. over five years for drug offenses, says report,” The Guardian, June 16, 2015, http://www.theguardian.com/us-news/2015/jun/16/260000-deported-from-us-over-five-years-for-drug-offences-says-report

[13] See “US: Drug Deportations Tearing Families Apart, Spike in Cases, Many for Minor Offenses,” Human Rights Watch, June 16, 2015, http://www.hrw.org/print/news/2015/06/16/us-drug-deportations-tearing-families-apart

[14] Id.

[15] See INA §240(c)(3)(A). See also Woodby v. INS, 385 U.S. 276 (1966) (holding that the government must establish deportability by “clear, convincing and unequivocal evidence.”).

[16] California is one such state. See Coronado v. Holder, No. 11-72121, 2014 WL 983621 (9th Cir. March 14, 2014); see also Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007).

[17] See Descamps v. United States, 133 S.Ct. 2276, 2281 (2013); United States v. Leal, 680 F.3d 1160, 1168 (9th Cir. 2012).

[18] See Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007).

Immigrant detainees who have been convicted of certain crimes are mandatory detainees and ineligible to be released from custody. They must therefore remain in custody for the duration of their immigration proceedings. The question of whether a particular criminal conviction subjects a detainee to mandatory detention can be highly complex and requires a considerable amount of research and analysis of the court records pertaining to the detainee’s criminal case.

If a detainee’s conviction does not fall under the mandatory custody provision, the detainee must then establish to the satisfaction of the Judge that he or she is (1) not a danger to the community; and (2) not a flight risk. In considering whether the detainee has satisfied these requirements, the Judge will consider the detainee’s entire criminal and immigration history, record of employment, family and property ties to the U.S., community involvement, whether the detainee has a stable address and finally whether the detainee is eligible for long term immigration relief from removal/deportation.