Q: What can someone do if they have multiple CIMTs on their record, if they have a pending removal proceedings in EOIR
My relative has two 1st degree misdemeanor retail theft on his record. And a misdemeanor for driving without license.( he got into an accident and had his intl. license and he didn’t know it was only valid for certain time and the cop wrote him driving without license and driving with suspended license, court dropped the 2nd one and his lawyer asked him to take the guilty plea and just pay the fine, there won’t be any immigration consequences). The first theft case was a DPA with community service,classes and the second one was 3 counts, the attorney advices to plead no contest to one and the other two will be withhold of adj. and take community service,classes and the attorney added “the taking was temporary “ and said those wordings will prevent any immigration consequences. He’s married to USC disabled vet. and has pending i130 with USCIS and pending i485 with EOIR. Is there any chance for his AOS approval? What are the possible defenses for this situation?
A:
Based on the information provided, this is a complex immigration case with several potential issues. Here's an analysis of the situation and some possible approaches:
1. Multiple Crimes Involving Moral Turpitude (CIMTs):
The two retail theft convictions are likely to be considered CIMTs. This could make the individual inadmissible under INA 212(a)(2)(A)(i)(I) and potentially subject to deportation.
2. Potential defenses and relief options:
a) Petty Offense Exception: If one of the theft convictions qualifies for the petty offense exception (maximum possible sentence of one year or less and actual sentence of six months or less), it might not trigger inadmissibility.
b) 212(h) Waiver: Given that the individual is married to a U.S. citizen who is also a disabled veteran, they may be eligible for a 212(h) waiver of inadmissibility for the CIMTs.
c) Cancellation of Removal: If eligible, they could pursue cancellation of removal for certain permanent residents under INA 240A(a) or for certain nonpermanent residents under INA 240A(b).
d) Adjustment of Status: The pending I-130 and I-485 are positive factors. The marriage to a USC disabled veteran could weigh heavily in their favor.
e) Challenge the nature of the convictions: The attorney's addition of "the taking was temporary" might be an attempt to argue that the theft doesn't meet the definition of a CIMT. This could be explored further.
f) Prosecutorial Discretion: Given the circumstances, including the marriage to a USC disabled veteran, they might request prosecutorial discretion from ICE.
3. Driving without license conviction:
While generally not a CIMT, it's important to ensure this doesn't affect their moral character determination for naturalization purposes in the future.
4. Next steps and recommendations:
a) Consult with an experienced immigration attorney who specializes in removal defense and criminal immigration issues.
b) Gather all court documents related to the convictions to determine exact charges, pleas, and sentences.
c) Prepare a strong case demonstrating rehabilitation, family ties, and hardship to the USC spouse if removed.
d) Consider seeking post-conviction relief for the criminal convictions if possible, which might help with immigration proceedings.
e) Prepare for potential relief applications such as 212(h) waiver, cancellation of removal, or adjustment of status.
f) If not already done, ensure the I-130 is approved, as this strengthens the case for adjustment of status.
While there are significant challenges due to the multiple CIMTs, there are also several potential avenues for relief. The marriage to a USC disabled veteran is a strong positive factor. Success will likely depend on careful preparation, strong evidence of rehabilitation and positive equities, and skillful representation in immigration court.
Given the complexity of this case, it's crucial to work with an experienced immigration attorney who can develop a comprehensive strategy tailored to the specific details of the case.
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