Immigrant avoided removal, despite conviction of a serious crime

If an immigrant, meaning the person has legal permanent residence in the United States, has been convicted of certain serious crimes, it may seem inevitable that that individual will be placed in removal proceeding before the immigration court and eventually deported and removed from the United States. Many may feel that fighting the federal government after they have pled no contest or guilty to such a charge, is a hopeless task.

However, this may not be the case if you hire a competent immigration attorney or removal defense attorney who knows the law. In fact, the recent case of Rodriguez v. Holder demonstrates that an individual might avoid removal in certain circumstances, even if they have been convicted of a serious crime.

Prison term for a serious crime

In Rodriguez v. Holder the Petitioner (immigrant) was a native and citizen of Mexico. In 2002, he pled guilty to a sexual assault as defined under the Texas Penal Code. As a result, he was placed on community supervision.

Later, the petitioner violated the terms of his community service by drinking alcohol and traveling outside of Deaf Smith County, Texas, the area in which he was ordered to remain. He was then sentenced to four years in prison for that violation.

The following year, he was notified by a Notice to Appear (NTA) that he was subject to removal from the United States because he was found guilty of an aggravated felony under Texas law – that being sexual assault. After proceeding ensued, an immigration judge ordered him removed from the United States, concluding that the offense was a “crime of violence” as defined under the federal guidelines and case law. The petitioner hired a lawyer to appeal to the Board of Immigration Appeals (BIA).

The BIA agreed with the immigration judge and dismissed the petitioner’s appeal and he then petitioned to the United States Court of Appeals for review of his case stating that his case was not a crime of violence and an aggravated felony.

What is a “crime of violence” under the applicable definition?

Any alien, immigrant, non-immigrant, or illegally present, may be deported from the United States if they are found guilty of an aggravated felony anytime after admission into the United States. “Aggravated felony” is defined as serious crimes including a “crime of violence,” which, in turn, is defined as an offense that, by its nature, involves the substantial risk that physical force will be used in committing the offense.

To make the removal determination, the court had to apply the meaning of a federal statute in relation to the Texas statute under which the petitioner was convicted, most times using the categorical approach. Although the Texas statute defined certain acts as being “without consent,” this did not control whether an offense was defined a “crime of violence” under federal law. In other words, the question for the court was whether the Texas conviction was categorically a “crime of violence.”

In looking further, two of the actions defined as “without consent” under the applicable Texas law did not constitute crimes of violence; specifically, the situation where a mental health worker or clergyman exploited the emotional dependency of a victim. Exploiting emotional dependency is not a situation where there appears to be a substantial risk of destructive or violent force.

Thus, the petitioner’s attorney was able to distinguish that the federal appellate court’s conviction under the Texas statute was not categorically a crime of violence. The court granted the petitioner’s motion in this immigration proceeding and vacated the order of removal and remanded the case.

Seek experienced counsel

If you are an alien facing any type of criminal action or criminal charge it would be in your best interest to seek the advice and representation of an experienced criminal consequences and immigration attorney. If you have already pled no contest or guilty to a criminal action and you are facing deportation or removal, or if need assistance with an immigration matter, it is crucial that you contact a knowledgeable immigration attorney or removal lawyer who knows the law and who will be able to review and research all the applicable issues to determine the best approach to your own individual situation.

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