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“The Answer Man” Fields Your Immigration Law Questions

Posted April 25, 2010 by David Sperling, Esq.

If you’ve ever had to deal with the U.S. immigration system, you realize that immigration law can be confusing, at best, and dumbfounding, at worst.

Sometimes it seems just plain dumb.

But in a new column on this site, I hope to answer some of your questions about immigration law and how it affects your family, friends and community.

Even though I’m a lawyer, I promise to use language that’s easy to understand, and, when appropriate, add a touch of humor (I don’t charge by the joke).

So what makes me an authority on immigration law?

I’ve been an immigration lawyer on Long Island for more than 15 years, with brick-and-mortar offices in Huntington Station and Central Islip.

During my career as an immigration lawyer, I have handled more than 10,000 cases from around the world, although the vast majority of my clients have been Central Americans living on Long Island.

Most of my cases involve family immigration issues, asylum applications, and defending people who are in deportation or removal proceedings.

Questions like, “How do you get a family-based green card?” and “What do I do when immigration officials knock on a neighbor’s door at 5am?” are right up my alley.

I also know a thing or two about employment-based immigration law, and can always call a colleague if I don’t know the answer.

So beginning today, please send your immigration law questions to .(JavaScript must be enabled to view this email address).

Due to time constraints, I’ll only be able to answer your questions when I put up a new post (meaning I won’t be able to send out emails, reply by phone, or meet you for tea).

In addition, I may need to edit or condense some of your questions. I ask that you include your name when you contact me, but I won’t publish it unless you specifically grant me permission.

Since this is the first post, and there’s nothing in the mailbag, I put together a sample question and answer to get us started.

I hope to hear from you soon!

Sample Question

My younger brother came illegally into the U.S. from El Salvador 12 years ago but never applied for temporary protected status.

He lives with his girlfriend, who has no papers, and their two children, both born in the U.S.

His youngest son has a heart defect and needs constant care. Four years ago, he was arrested for possession of a pound of marijuana and pleaded guilty based on his attorney’s advice, and never went to jail.

Other than that, his record is completely clean. Is there some way he can get a green card?

Sample Answer:

Yes, but it’s not going to be easy.

If your brother was not apprehended after entering the U.S. and does not have a deportation order, he could qualify for “cancellation of removal.”

An immigrant is potentially eligible to apply for a green card if he has been in the United States for more than 10 years, has a U.S. citizen or permanent resident spouse or child, and is a person of good moral character.

However, this relief is only available in deportation/removal hearings and only if the immigrant can show that his deportation would result in “extreme and highly exceptional hardship” to his qualifying U.S. relatives.

If not for your brother’s drug conviction, he would have an excellent case because his youngest son suffers from a serious medical condition, and your brother would not be able to provide adequate care for him in El Salvador.

The big problem is the drug conviction. The only drug waiver available is for possession of 30 grams or less of marijuana, and even that may not work in a cancellation case.

But there is hope.

A very important U.S. Supreme Court decision a few weeks ago, called Padilla v. Kentucky, holds that a noncitizen is entitled to know whether pleading guilty to a certain crime carries a risk of deportation. Click here for an article that I wrote about the case.

Before this ruling, a lawyer could give an immigrant legal advice without telling the person that a certain legal decision might lead to deportation. And in New York State, it was almost impossible to “vacate,” or withdraw, a previous plea.

With this decision, however, your brother could find a lawyer to file what is known as a “440 motion” to vacate his previous plea regarding the drug possession charge.

There is a risk, of course, that he would face jail time and certain deportation if the lawyer was not able to negotiate a better plea.

Anyone who wants to vacate a guilty plea should consult with an experienced immigration and criminal defense lawyer. These cases are fact-specific and require a great deal of analysis.

So don’t try this at home!

Make sure you work with reputable attorneys with good track records. I’ve seen too many immigrants hurt by “notarios” or sleazy lawyers.

Fortunately, the Padilla v. Kentucky ruling means that immigrants have the right to competent attorneys, just like everyone else.

DISCLAIMER
In this column, Long Island Wins provides information about immigration law designed to help users understand and navigate the immigration system. The information contained on Long Island Wins is provided to you “as is,” and does not constitute legal advice. We are not acting as your attorney. Furthermore, statements in this column are not to be construed as legal advice creating an attorney-client relationship. Anyone with an immigration issue is strongly advised to consult with an experienced attorney or reputable non-profit legal-services organization.

Photo by limaoscarjuliet via Flickr.