On Monday, the Executive Office for Immigration Review in Kansas City bestowed lawful permanent resident status on a longtime client of Hacking Immigration Law, LLC. The young man was born in Haiti. His mother married a U.S. citizen many years ago and the young man’s father adopted him. The mother and her son came to the United States as visitors in the late 1990s. They did not return home at the time that their visitor visas expired. Instead, they overstayed and waited years to file for the immigration benefits that were available to them. While a spouse visa was eventually filed for the mom, no visa application was filed for the son (whom we will call Bert).
The mother eventually obtained lawful permanent resident status (a green card). However, no immigration benefit was filed for Bert. When Bert turned 19, his U.S. citizen stepfather and mother did file an I-130 immediate relative visa petition and an application to adjust Bert’s status from (out of status) alien to lawful permanent resident status. The case was eventually transferred to the St. Louis office of USCIS, where it languished for several years.
In the meantime, Bert got into a little bit of criminal trouble. In 2009, while Bert was driving in a rural county, a police officer flashed his lights at Bert. Knowing he was out of status, Bert allegedly attempted to escape. He was charged with resisting arrest, a Class D felony under Missouri criminal law. Bert’s court appointed public defender reached a plea deal with the prosecutor. Bert pleaded guilty and received a two year jail sentence, with probation and credit for time served. That same year, Bert received a citation for stealing a tire in downtown St. Louis. Bert pleaded guilty to this charge without the benefit of legal advice.
Based on these two convictions, USCIS then denied the adjustment of status application. USCIS never adjudicated Bert’s I-130 immediate relative visa petition. In January of 2010, ICE then arrested Bert and charged him with being deportable (1) as an overstay and (2) as having two crimes involving moral turpitude (CIMTs). Because Bert was charged with having 2 CIMTs, he was subject to mandatory detention and was held at the Mississippi County Jail in southern Missouri.
The Hacking Immigration Law was then asked to get involved in the case and we agreed to handle the case on a pro bono basis. First, we filed a motion to vacate the guilty plea on the tire stealing charge. We argued that Bert’s plea was not a knowing and voluntary waiver of his right to go to trial and contest the charges because he did not know that by pleading guilty to the tire stealing charge, he would be rendered deportable. The St. Louis Circuit Court vacated the conviction and the plea. Second, we worked with the local USCIS office to have his long-pending I-130 adjudicated. Bert was transported to the USCIS office in handcuffs and interviewed in his orange jumpsuit. The I-130 was approved. USCIS also purported to deny a second adjustment application which included an I-601 waiver, which is a request for discretionary relief that allows for certain “bad facts” to be considered but disregarded by the adjudicating officer. Third, working with the appellate division of the Missouri Public Defender’s office, we moved to have the outstate conviction for resisting arrest vacated because his prior attorney did not advise him that he could face deportation as the result of the plea. After a half day proceeding, the resisting arrest court vacated the plea. That charge remains pending.
On Monday, St. Louis immigration attorney Jim Hacking flew to Kansas City for a hearing before the EOIR. We argued that Bert was deserving of the discretionary I-601 waiver, which allows for lawful permanent resident status to be awarded even in the face of prior arrests. In addition, we argued that USCIS’s denial of the waiver was invalid because once Bert was in removal proceedings, only the immigration judge could decide that issue.
On the merits, we discussed the factors in support of waiver, i.e., the good things that Bert had done in his life – like supporting his U.S. citizen sisters and stepfather, church work and the fact that he earned his GED while in jail. We also discussed the horrendous conditions that continue to exist in Haiti. Because the convictions were vacated, we pointed out that there were no actual criminal convictions pending against Bert. In addition, because he was the beneficiary of an approved I-130, his overstay was to be forgiven as he had more than ten years of continuous residence in the U.S. After a full hearing in which Bert’s mother testified in person and Bert testified via video teleconference from the Lincoln county jail, immigration judge John O’Malley granted Bert’s request for relief and awarded him lawful permanent resident status. After 23 months in the custody of the U.S. Department of Homeland Security, Judge O’Malley ordered Bert released from custody. The order came the day before Bert’s birthday.
At the end of the hearing, Judge O’Malley said, “Mr. Hacking, you are to be commended for the excellent legal work that you did on behalf of your client.” To top it off, we got a hug from Bert’s mom. In total, our firm spent hours and hours and incurred a tremendous number of costs in this case. But we knew it was an important case and we believed in Bert.
If you or a family member is facing deportation to your home country, the immigration attorneys at Hacking Immigration Law, LLC, may be able to help you fight deportation. Please give us a call at 314-961-8200 or use our contact form below.
