CASE: Motion to Terminate Removal Proceedings Based on Criminal Conviction Dismissal
LOCATION: Cleveland, OH
Our client is a Croatian citizen and who has been a green card holder in the United States for more than 10 years. His parents and sister are all US Citizens.
However, he was placed in removal proceedings in July 2012 due to his previous criminal convictions, specifically drug-related offenses. He had two possession of drug paraphernalia convictions, a conviction for drug abuse due to heroin, and a marijuana conviction. He was thus removable due at least one controlled substance violation.
He was picked up by ICE officers and was detained. Our client’s family member contacted us in early August to seek legal assistance and representation at his removal proceedings. Our office was retained on August 3, 2012.
Based on his removable charges, there was no available relief for our client except relief under the Convention Against Torture (CAT). Respondent wished to apply for CAT.
We then asked our client whether he was advised before he pled guilty for his charges at his previous criminal hearings. Our client told us that he did not receive any advisement as required by Ohio criminal statutes.
Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the BIA held that “If a court with jurisdiction vacates a conviction based on a defect in underlying criminal proceedings, the Respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A).”
According to O.R.C Section 2943.031, the court must ask the following before the defendant entered the plea: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
As stated above, our client told us that he never had the aforementioned advisement from the court before he pled guilty to his charges. Thus, we contacted our client’s previous criminal attorney to file Motion to Withdraw Guilty Plea and Vacate Conviction based on a defect in underlying criminal proceedings – that of having a lack of advisement or lack of substantial compliance with the advisement provisions of O.R.C. Section 2943.031 from the criminal courts.
By November 9, 2012, the courts involved vacated and dismissed the two drug paraphernalia convictions and the heroin / drug abuse conviction. He thus only has one conviction for marijuana possession left. There was no evidence that the amount of marijuana involved was over 30 grams.
With that, our office filed a Motion to Terminate Proceedings to the Immigration Court and argued that our client is not removable anymore because the respective courts have vacated his plea and dismissed his convictions based on a defect in underlying criminal proceedings. We cited the law that provides that he is not removable based on a single conviction of marijuana possession if the amount involved is 30 grams or less. Since it’s the government’s burden to show removability, and since there was no evidence of the amount of marijuana involved, despite this conviction he was not removable anymore.
We included the criminal court judges’ orders and other supporting documents, including, when necessary, a certified copy of the motion filed by the criminal attorney (the government sometimes wants to see this to make sure the dismissal was not for immigration purposes, but based on a lack of advisement) and argued that our client’s removal proceedings must be terminated.
On November 28, 2012, on the day of our client’s Individual Hearing, the Immigration Judge granted our Motion to Terminate Proceedings.
Our client is now released. He got his green card back and can continuously reside in the United States.
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