Crime & Immigration
Using post-conviction relief to help you in your immigration case.
What happens when someone has a conviction for a crime that makes them inadmissible or deportable and relief is not available? Is the person out of options? Again, the answer to this question depends. In some cases, the person might be able to use post-conviction relief to help them in their immigration case.
Post-conviction relief is a request that is made to the court where the conviction was entered to vacate, set aside, or correct a judgment or sentence. The process in each state and in federal court will vary. In Florida, a person has 2 years after losing their appeal to file their request for post-conviction relief, except in 4 instances.
If a person with a criminal conviction that is facing immigration consequences because of the conviction, files a request with the court of conviction to vacate, set aside, or correct the judgment or sentence and the court grants the request, the person may then be able to use this in their immigration case. A careful review of the record of conviction and what happened during the criminal case will be necessary to determine if a request for post-conviction relief is available.
Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief, including post-conviction relief, available to the person.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Do I have options?
Part II
What happens if a person is inadmissible or deportable because of the commission of crime? Is the person out of luck? It depends. Sometimes the person will be out of luck and unable to enter or remain in the US. But other times, the person might have a relief available that will allow them to enter or remain in the US. Last week, we discussed two relief options and this week we will discuss two additional relief options available for someone that has committed a crime and is inadmissible or deportable from the US.
Relief Option: Cancellation of Removal
Cancellation of removal is available to a person that is inadmissible or deportable if the person:
1. Has been a lawful permanent resident for 5 or more years
2. Has resided in the US continuously for 7 years after having been admitted in any status
3. Has not been convicted of an aggravated felony
A person that meets the above requirements will still not be eligible for cancellation if:
a. The person is inadmissible or deportable for security grounds, including export violations
b. The person has ordered, incited, or assisted in the persecution of others
c. The person has previously received relief from deportation or removal in the form of suspension of deportation, cancellation of removal, or a waiver under INA 212(c)
Relief Option: Nonimmigrant Visa Waiver under INA §212(d)(3)
This waiver is for a person that is looking to enter the US as a nonimmigrant (e.g., tourists, temporary workers). The application is made at the consulate or at the port of entry. When it is made at the consulate, the consular official will make a recommendation, but it is the US Citizenship and Immigration Services office who makes the final decision.
The following factors are considered when deciding an application for a nonimmigrant visa waiver:
1. The risk to society if the person is admitted
2. The seriousness of the person’s immigration or criminal law violation
3. The nature of the person’s reasons for wishing to enter the US
A waiver for a non-immigrant visa may be available even for crimes that would prevent an individual from obtaining an immigrant visa.
The granting of these waivers is discretionary and the person may meet all the requirements in paper but still be denied by the immigration officer as an exercise of their discretion.
Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief available to the person.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
