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Protecting against deportation

By Atty. Paul Choi

(Paul Choi is an immigration attorney and professor of law located at 16000 Ventura Blvd. Ste 1201, Encino, CA. 91436.  Atty  Choi will answer all questions regarding immigration and naturalization for free. Address questions to pchoi@pchoilaw.com or telephone 818 714-2226.  Atty Choi is pleased to announce that his administrator is Philip Abramowitz who has 30 years of experience in immigration law.)

Question: I am a lawful permanent resident. My husband was arrested for hitting me after an argument and he was sent to jail.  I am so worried about him and I am sorry that he was arrested.  He was released from jail on a very large bond of $50,000 and we are awaiting a trial on his arrest. He is a permanent resident but he has not yet filed for citizenship.  I have heard that he can be deported if he is arrested is this true?  What can we do and what are the risks?

Answer:  The Immigration Service and more particularly the enforcement branch called Immigration and Customs Enforcement or ICE is concentrating their efforts on deporting undesirable aliens such as sex offenders, terrorists, and criminals.  Therefore, if you fall into one of these categories, there is a better chance that you can face deportation than the average person who just overstayed a tourist visa.

ICE has employed a program called S-Comm which stands for Secure Communities.  Secure Communities goal is to promptly deport persons who are arrested by law enforcement. Under S-Comm, local law enforcement agencies like the Sheriff’s Department and the Police Department share with ICE all fingerprints taken immediately after an individual is arrested.  Operating on a pre-conviction model, ICE is automatically notified no matter how minimal the charge or whether the arrested individual is later found not guilty. As a consequence of this program, S-Comm has facilitated the deportation of over 50,000 immigrants, legal and otherwise, since October, 2008.  Just because your husband has a greencard does not necessarily make him immune to deportation.

Under Federal Immigration Law, it is clear that persons who commit certain crimes such as spousal or child abuse, fraud, theft, drug sales, rape or murder and others can be put in deportation or removal proceedings even if they are otherwise legally residing in this country.  The only persons who are 100% protected are U.S. citizens.  However, even non-violent offenders who just commit simple misdemeanors have been caught up in the net of S-Comm and deported.  In fact, of all the 50,000 persons deported under S-Comm some 26% were convicted of simple misdemeanors.  In addition over 50% of persons deported under S-Comm were arrested for low-level charges.  The fact is many non-immigrants living in the U.S. illegally commit simple crimes like shop-lifting, drunk driving or reckless driving.  However, once these illegal overstays are in the police system after an arrest, ICE is probably informed about the arrest.  If it chooses, it can institute deportation either while the person is in police custody or thereafter.  Of course, in most cases, deportation is not immediate and there is a right to a trial before an immigration judge.  However, this procedure can be terrifying and costly.  If this happens to you or a loved one, obtaining a competent attorney is great advice.

There are many defenses to deportation even for those facing deportation because of criminal convictions.  Persons who are married to American citizens or lawful permanent residents or who have resided here for long periods of time and have close relatives here often may be able to defend against deportation based upon a claim of hardship suffered by family members.

Also, remember that the government must prove that an alien is removable by clear and convincing evidence and this burden is a strong one.  If the government is not able to prove the allegations contained in the notice to appear for removal proceedings, the proceedings must be dismissed.

In short, to protect yourself in the future, file for U.S. citizenship as soon as you are eligible.  Also, realize that just having a greencard does not protect you from deportation should you commit a crime as simple as shooting a gun in the air or spousal abuse.  In fact, there are many crimes that can cause you to lose your permanent residence and face deportation but, of course, this is America and you do have the right to confront the evidence against you and to prepare your own defense.  As for your husband, make sure his criminal attorney is well aware of the immigration consequences of a criminal conviction before he goes to trial or enters a plea of guilty.

Criminal defense attorneys are wise to consult with an immigration practitioner who knows immigration law and consequences of criminal convictions. Through a competent immigration attorney, should deportation proceedings commence, there are many defenses available that could protect your husband and even have proceedings not turn into a deportation order.

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Paul Choi will answer all questions regarding immigration for FREE. Contact him at pchoi @pchoilaw.com or at 818 714-2226.  As always, consultations in office are still FREE.

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