My Crime was Vacated! Now What?

Question: I was deported because of a crime committed many years ago. However, I successfully had it vacated because I was not given my proper immigration advisals. I previously filed a Motion to Reopen to get back to the U.S. However, that was denied. Now what can I do?

Answer: A case was just decided in your favor. The basic facts of that case are as follows. In 2000, there was a conviction of cultivating marijuana for personal use. Upon completion of a deferred entry of judgment program, Petitioner was permitted to withdraw his guilty plea, and the charge was dismissed. Meanwhile, Petitioner, the spouse of a U.S. citizen, had filed an application for adjustment of status. When he appeared for his adjustment interview, Petitioner was detained and charged with removability for (1) being present in the U.S. without being admitted or paroled and (2) as an individual convicted of a controlled substance offense. At his removal hearing, Petitioner admitted the first ground, but denied the second ground, arguing that his cultivation conviction was similar to a simple possession conviction and therefore, could not be used to establish removability. The immigration judge rejected this argument, found Petitioner removable on both grounds and, as a result of his controlled substance conviction, found him ineligible for adjustment of status or cancellation of removal.

While Petitioner’s appeal was pending before the BIA, he moved the California court to vacate his cultivation conviction, arguing that the conviction was constitutionally invalid. On September 30, 2003, the BIA summarily affirmed the IJ’s decision without opinion and on October 8, 2003, Petitioner was removed to Mexico. On October 15, 2003, the California court vacated Petitioner’s cultivation conviction and amended the criminal complaint to charge him with simple possession of marijuana. Petitioner pleaded guilty to simple possession and, on December 17, 2003, the court expunged the conviction.

The BIA denied Petitioner’s subsequent motions to reopen and reconsider for lack of jurisdiction under 8 CFR §1003.2(d). Section 1003.2(d) provides, “a motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of…removal proceedings subsequent to his or her departure from the United States.”

On review, Petitioner argued that despite the language of 8 CFR §1003.2(d), the BIA nonetheless had jurisdiction over his motions because his now vacated cultivation conviction was a “key part” of the government’s case in his removal proceedings.

Question: What did the court in that case conclude?

Answer: the court concluded that because the vacation of the conviction was completed and because the deportation was executed based primarily on that criminal conviction, that the Board of Immigration Appeals was wrong and that the Motion to Reopen the deportation proceedings should have been granted so that the person could get back into the United States.

Similarly with you, a Motion to Reopen should be made to the Board of Immigration Appeals. You should not be stuck outside the United States at this time as you were deported based upon a crime that now does not exist.

Law Offices of Brian D. Lerner Expert in Immigration Law, Removal and Deportation, Citizenship, Waiver and Appeals
I have been a licensed attorney since 1992 and started the Law Offices of Brian D. Lerner, APC. My practice consists of Immigration and Nationality Law and everything involved with and regarding immigration which includes citizenship, investment visas, family and employment visas, removal and deportation hearings, appeals, waivers, adjustment, consulate processing and all types of immigration and citizenship matters.

I have passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. Currently, there are only about 200 out of 200,000 attorneys.

We help with clients do Consular Processing all over the world. Of course, we can handle all immigration cases including family based and employment based. Immigration issues range from immigration court proceedings to trying to fix what paralegals may have done that was neither correct nor proper. Foreign nationals must have experience lawyers admitted to practice law. For example, legal representation may deal with preparing a Cancellation of Removal Application or a myriad of other items.

My Los Angeles Immigration Law Firm handles cases arising from business visas, work permits, Green Cards, non-immigrant visas, deportation, citizenship, appeals and all areas of immigration. The Law Offices of Brian D. Lerner, APC does EB-5 Investor Visas, H-1B Specialty Occupation, L-1 Intracompany Transferee, E-2 Treaty Investor, E-1 Treaty Trader, O-1 Extraordinary Ability among others. We also do K-1 Fiancee and K-3 Spouse Visas. Regarding immigrant visas for the Green Card, we do PERM and advanced degree PERM, Family Petitions, and Extraordinary Alien Petitions. In addition to affirmative petitions, we represent people in people in deportation and removal hearings, including political asylum, withholding of removal, and convention against torture cases.

Specialties: Immigration Attorney, Certified Specialist in Immigration and Nationality Law

Many years ago, Brian D. Lerner has passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. He can handle the most difficult of immigration cases arising from business visas, work permits, Green Cards, non-immigrant visas, deportation, citizenship, appeals and all other areas of immigration. He received his B.S. Degree in Business Administration, with an emphasis on Computer Information Systems, from the University of Southern California. He graduated from the University of the Pacific, McGeorge School of Law with a Juris Doctorate degree. Mr. Lerner is admitted to the United States Supreme Court, the California Supreme Court and the U.S. Courts of Appeals for the 11th, 10th, 9th, 8th, 6th, 5th, 4th, 3rd, 2nd and 1st Circuits. This means that he can prepare and file all Circuit Court of Appeals and U.S. Supreme Court cases. As for all immigration matters at the Immigration Courts, USCIS, BICE, BCBP, BALCA, Department of Labor, and the Board of Immigration Appeals, our firm can prepare all matters in every state in the United States, Puerto Rico and Guam. Mr. Lerner has traveled all over the United States to help people with their immigration needs. Mr. Lerner can handle the toughest of deportation cases as well as any appeal, Petition for Review or Motion to Reopen case. Mr. Lerner is frequently present in immigration court, representing individuals in deportation, removal, waiver asylum, withholding of removal and adjustment of status hearings. He has prepared numerous appellate briefs to the Board of Immigration Appeals and other appellate boards at the Bureau of Citizenship and Immigration Services. He has appealed and argued cases in the Circuit Court of Appeals all over the United States. Mr. Lerner has prepared business visas for individuals from all over the world. Our firm has clients from practically every continent on Earth. His visa experience extends to Treaty Traders, Treaty Investors, Intercompany Transferees, Speciality Occupations, Training programs, and NAFTA visas. He has extensive experience in most all other types of visas issued. In addition to his visa experience, Mr. Lerner has prepared Multinational Manager, National Interest Waiver and Extraordinary Alien petitions for highly qualified foreigners. Mr. Lerner’s clients are from all over the United States and many countries around the world. Immigration Law is Federal Law. Therefore, a petition or application would be prepared the same in Texas, Florida, or any other State as it would in California. It is more important for you to make sure that you have an expert attorney in Immigration Law prepare your case, rather than a lawyer who happens to be local. There is too much at stake to just give your case to anyone. Mr. Lerner will fight for you and your family. Since he is married to an immigrant himself, he is committed to helping people from all around the world to come to the United States to realize their dream.

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Law Offices of Brian D. Lerner Expert in Immigration Law, Removal and Deportation, Citizenship, Waiver and Appeals
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