Boston Deportation Defense Attorney

Can you be deported for a nolle prosequi criminal disposition?

As an immigration lawyer based in Boston, Massachusetts with expertise in deportation defense in Immigration Court, I often meet with immigrants who are  confused as to the immigration consequences of their criminal dispositions. One of the frequent questions I get is related to a nolle prosequi disposition.

Immigration laws take a unique view of the definition of conviction.  Consequently, U.S. Citizenship and Immigration Services (USCIS) or an Immigration Judge might consider your criminal case to be a conviction even though, when you went to District Court, the judge told you that your criminal case would be dismissed.

What is a nolle prosequi disposition under Massachusetts criminal law

Under Massachusetts Criminal Procedure, a prosecuting lawyer may request a nolle prosequi disposition at any time before sentencing. If granted, the nolle prosequi disposition means that criminal charges are, in effect, dropped or dismissed.

Why nolle prosequi is not considered a conviction for immigration purposes

A Massachusetts nolle prosequi disposition is not a conviction for immigration purpose because in order for a disposition to be considered a conviction, it must contain both (1) a finding of guilt, a plea of guilt of the equivalent; and (2) a penalty, punishment or restraint on liberty. With nolle prosequi, no sentence is imposed and so it is a criminal disposition that wouldn't be classified as a conviction under US immigration law.

A nolle prosequi disposition must be disclosed on all immigration and visa applications even though it isn't a conviction

It is important to remember that even though a nolle prosequi disposition is not viewed as a conviction for immigration purposes, you must still disclose this disposition on all I-485, N-400 and other immigration applications, as well as on all visa applications. 

Many immigrants mistakenly believe that because their criminal case was dismissed that it is "off their record, " and they have no duty to disclose it.  But this is not so.  Again, you absolutely MUST disclose all criminal matters regardless of whether a conviction occurred.  But by disclosing that you have a dismissed criminal case, you certainly aren't admitting that you did something wrong.  You are just providing an accurate and honest answer to questions on an immigration application.  

After disclosing your nolle prosequi disposition, you have one last requirement:  And you must provide USCIS or the U.S. Consulate with a court-certified, final criminal disposition to show that the case was indeed resolved with a nolle prosequi entry.

I hope this clarifies the meaning of a nolle prosequi disposition for immigration applicants.  If you need further help or representation by an immigration lawyer based in Boston with expertise on deportation and immigration consequences of criminal matters, please call me at 617-722-0005. 

As an Boston immigration lawyer and expert on the marriage-based green card process, I was quoted in today's Boston Globe article discussing marriage fraud and earlier in a Boston Herald article.  I also appeared on The Boston Channel, WCVB Channel 5 news discussing deportation and sham marriages.  You can watch the news video here.  And you can read my blog on marriage fraud and green cards here.

The Boston Globe article looks at the immigration problems of 3 Pakistanis whom the Department of Homeland Security has detained in connection with the Times Square bombing.  According to media reports, they are facing the prospect of deportation or removal from the United States and are appearing in Boston Immigration Court before Immigration Judge Robin Feder.  Each are married to U.S. citizens.  But attorneys from Immigration and Customs Enforcement allege that the marriages are fraudulent. 

Can you avoid deportation by marrying a U.S. citizen?  The answer is yes . . . and no.  Let me explain.

First, if you get married after the government has initiated deportation proceedings, you will have to overcome the presumption that your marriage is sham and that the only reason you got married was to avoid being deported.  Before you can even apply for your green card, you'll have to prove by "clear and convincing" evidence that your relationship was entered into in good faith.

Many people get green cards through marriage.  But the process for getting a green card through marriage while facing deportation is totally different.  You'll have to file a stand-only I-130 visa petition and specifically request, IN WRITING, an exemption based on a good-faith marriage.  And you can file your I-485 if, and only if, U.S. Citizenship and Immigration Services (USCIS) approves your I-130. 

Finally, even if USCIS grants your I-130, you are not out of the woods.  You'll have to have an adjustment of status interview before an Immigration Judge who will independently review whether your relationship is a sham.  This hearing will be adversarial and the Department of Homeland Security is represented by experienced trial attorneys who will rip you to shreds on cross-examination if your marriage is sham.

USCIS doesn't take marriage fraud lightly.  If caught, you'll be barred from future visa petitions and face criminal fines of up to $250,000 and five years imprisonment.

Bottom-line:  if you are required to appear in Immigration Court and considering marriage as a way to avoid deportation, you should consult with an immigration lawyer with considerable experience in courtroom advocacy.  Call me at 617-722-0005 to discuss your immigration case.

Lately, our Boston immigration law office has been inundated by a flood of people who have had their I-751, petition to remove conditions on permanent residency, denied by USCIS because they were not filed on time. As the I-751 denial letter points out, when the I-751 is denied, all the rights and privileges of permanent residency are terminated. In some cases, the I-751 denial letter is accompanied by a Notice to Appear in Immigration Court, which means that deportation or removal proceedings have been initiated.

If you filed your I-751 late and then got one of these denial letters from USCIS, what should you do? First, take a deep breath. Relax. Don't panic. And, by all means, don't pack your bags and leave the U.S.

Before discussing the solution, let me explain the problem. When you are given a conditional green card, you are required to file, together with your spouse, a petition requesting the removal of the conditional basis for your residency within the 90-day period immediately before the second anniversary of the date that you became a permanent resident. If you fail to file the I-751 by this deadline, the immigration regulations say that you will lose your green card status and be placed in deportation proceedings!

USCIS will permit you to file your I-751 late, after the expiration date on your 2-year conditional green card, but only if you include a written explanation of why you failed to file on time and a written request asking USCIS to excuse the late filing of the I-751. If you file your I-751 late and don't include this written request, USCIS will deny your I-751 on the grounds that it was untimely. This is what happens to many I-751 applicants who include the written explanation and request as required. And even if you include the written explanation and request, USCIS will only excuse a late-filed I-751 for "good cause."

So, with this background in mind, here are 3 possible remedies to the denial of an I-751 for failure to file in a timely manner.

1. Refile the I-751 but this time include the written request that USCIS excuse the late filing and explaining why you file the I-751 late. Since you must convince USCIS that your failure to file on time was for "good cause," you should include affidavits, medical records, financial documents--any and all documentation to support your argument.

2. Request that an Immigration Judge review the denial of your I-751. You can't petition Immigration Court to review the denial of your I-751 directly. You can only do ask Immigration Court for review of the I-751 denial if you are placed in deportation proceedings and required to appear before an Immigration Judge. Immigration Court doesn't have jurisdiction over all denied I-751s but this option is available in some instances. At a hearing in Immigration Court, the Immigration Service--not you--would have the burden of showing that basis for why it denied your I-751.

3. File a motion to reopen the decision by USCIS to deny your I-751.

Which of these options is best path to keeping your green card depends on the facts of your immigration case.  This is a decision best made in consultation with an immigration attorney with substantial experience handling family-based immigration cases and with a strong background in deportation defense.

If you need more help or advice on how to remove the conditions on your green card or if you need representation in Immigration Court, please call me at 617-722-005 and schedule a time to meet with me to discuss your immigration case.

Since I'm an immigration attorney, I'm often asked for my opinion on the immigration consequences of criminal convictions and activities. Yesterday, a criminal defense attorney in Boston asked me whether, in Massachusetts, a non-citizen youth who breaks the law and who is found delinquent by a juvenile court could end up being deported as a result of the juvenile delinquency finding.

The short answer is no. According to the Board of Immigration Appeals, a juvenile adjudication isn't considered a criminal conviction for immigration purposes. The logic behind this rule is that juvenile proceedings are not criminal. So a delinquency finding on a deportable offense will not cause a juvenile to be deported.

But beware: juvenile adjudications can trigger other adverse immigration consequences. They can be used to bar a finding of "good moral character", which is a requirement for naturalization and other forms of relief from deportation such as cancellation of removal. Also, as a discretionary matter, Immigration Judges can view juvenile activities as a negative factor when considering any application for relief from deportation.

And some immigration provisions don't require the existence of a conviction and can be based on an admission of guilt or merely a perceived "reason to believe" that the person has been involved in criminal activity. For instance, a person can be denied adjustment of status to permanent residency or entry into the United States based on an Immigration Judge's "reason to believe" that the person has been involved in drug trafficking or money laundering. The "reason to believe" could be based on non-criminal juvenile proceedings.

To summarize my advice, a youthful offender conviction or a juvenile delinquency finding is not considered a "conviction" for immigration purposes and, therefore, can't be the basis for deportation. But such adjudications should be avoided because they could affect a person's immigration status in other ways.

Two final points:

1. Massachusetts Youthful Offender Law: This statute permits children between the ages of 14 and 17 to be prosecuted as adults when charged with serious felony crimes. It is possible that at some point, immigration authorities could make a legal argument that youthful offender convictions should carry the same immigration consequences as adult convictions. But from my research, no federal cases, published Board of Immigration Appeals decisions or other legal authority support this position.

2. Juvenile dispositions must be disclosed:  Appearances in juvenile court, although not criminal, must be disclosed on immigration forms such as applications for adjustment of status to permanent residency (I-485), and applications for naturalization (N-400).

If you have further questions about the deportation, juvenile proceedings, or possible immigration consequences, feel free to call me at (617) 722-0005. Schedule an consultation with me in my Boston immigration offices. I'd be happy to help you.

If you are facing deportation or removal from the United States and have a hearing in Immigration Court in Boston or elsewhere, your fate is in the hands of an Immigration Judge who will weigh the evidence and reach a decision. Immigration lawyers refer to this process as the Court's or the Judge's discretion.

People often underestimate the power of an Immigration Judge's discretion.  So I'd like to give you three specific examples of how Immigration Judges have the discretion to decide deportation cases:

#1:  "Why did the Immigration Judge deny my case?  All of my criminal cases were dismissed!"  Imagine that you are married to a U.S. citizen and are applying for a green card.  You have a hearing before an Immigration Judge for your I-485 application to adjust your status to permanent residency.  You have been arrested several times but all of your criminal cases were dismissed.  Even though your criminal charges didn't result in a conviction, it would be a mistake to assume that the Immigration Judge will automatically approve your I-485 just because your criminal cases did not result in a conviction.  You are not necessarily entitled to a green card.  The Immigration Judge has discretion to approve or deny your green card application.  In making that decision, the Immigration Judge will want to know more about your criminal cases even if you were not convicted.  The Judge will weigh the evidence and reach a decision in their discretion.  And if you don't convince the Immigration Judge that you deserve to become a permanent resident, you are going to lose.

#2:  Immigration Bond.  If Immigration and Customs Enforcement ("ICE") arrests you and puts you in jail, you have a right to a bond hearing where you may ask an Immigration Judge to release you on an immigration bond.  The immigration regulations require the Immigration Judge to make three important discretionary decisions.  First, as a threshold matter, the Judge must decide whether you are a danger to the community.  Unless this decision is in your favor, you will not be released on bond. Second, if the Immigration Judge believes that you are not a danger to the community, the Immigration Judge will then decide whether you are likely to return to court if released.  And, third, if the Immigration Judge decides that you are not a danger to the community and that you are likely to return to Immigration Court for future hearings, the Judge will determine the cost of the bond.  The important point is that these three key decisions--dangerousness, flight-risk, and cost of bond--are all entirely within the Immigration Judge's discretion to determine as he or she sees fit.

#3 Asylum:  If you are applying for asylum in Immigration Court, you must convince an Immigration Judge that you have suffered past persecution or have a well-founded fear of returning to your home country. To prove your claim, you may testify and present evidence.  An Immigration Judge has the discretion to decide whether you are telling the truth and whether your case deserves to be approved or denied.

If you lose in Immigration Court because the Immigration Judge makes a discretionary decision that you dislike or disagree with, you do have the right to appeal to the Board of Immigration Appeals.  But no matter how much you disagree with the outcome of your case, it is extremely difficult to successfully challenge an Immigration Judge's discretionary decision.  Appealing the denial of your bond is particularly difficult because you will be in jail while the appeal is pending.  The likely result of your appeal could merely prolong your time in jail.

In short, winning or losing in Immigration Court usually boils down to an Immigration Judge's discretionary decision. And my job as a deportation defense attorney is to persuade the Immigration Judge to make a discretionary decision in your favor.

If you have questions about Boston Immigration Court, bonds, hearing, trial strategy or other issues; or if you need an attorney to represent you, please call me in my Boston office at (617) 722-0005 to schedule an immigration consultation.

A recent decision by the Board of Immigration Appeals changes the immigration process for Cubans seeking permanent residency in the United States. Pursuant to the Cuban Refugee Adjustment Act of 1966, Cuban nationals who appear at U.S. border posts seeking admission are generally paroled into the United States as "Cuban asylees." After entry into the U.S., Cubans can immediately apply for work permits. Then, one year after living in the U.S., Cuban nationals can file I-485 applications to adjust their status to obtain their green cards.

Although Cubans who are paroled into the U.S. have a clear path to permanent residency (getting a green card), they are placed into the deportation proceedings and, therefore, must appear before an Immigration Judge in Immigration Court.

Until recently, Immigration Judges had jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans, and Cubans would apply for their green cards through Immigration Court and before an Immigration Judge. The Court then could grant their green card and simultaneously take them out of removal proceedings.

But now, according to the Board of immigration Appeals in Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), Immigration Judges have no jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans who have been paroled into the U.S. under the Cuban Refugee Act. Instead, to obtain green cards, Cuban parolees must file their I-485 with U.S. Citizenship and Immigration Services ("USCIS").

This Board of Immigration Appeals decision puts Cuban parolees in an odd situation: they must appear in Immigration Court, yet Immigration Court has no jurisdiction over the adjustment of status applications that they are eligible to file. If you are a Cuban national who is in removal proceedings, your most likely option is that your lawyer will ask the Immigration Judge to continue your case until USCIS adjudicates your I-485. The problem is that it could easily take two years for USCIS to make a decision on the I-485!

To me, this new scenario for Cuban asylees makes no sense. It clogs the docket and wastes the Immigration Court's limited resources. 

If you have questions about the deportation process, Cuban adjustment, other immigration issues, or if you are seeking an attorney to represent you in Boston Immigration Court, call my Boston office at (617) 722-0005 to set up an immigration consultation.

Boston area residents with final orders of deportation may request a stay of removal with U.S. Customs and Immigration Enforcement (ICE) by filing Form I-246 at its Burlington, Massachusetts immigration office.  In the past, there had been no filing fee for this immigration application.  But, apparently, the free ride is over.  Effective immediately, a filing fee of $155 must be paid with Form I-246 in cash, money order or cashier's check (no personal checks).

As a lawyer specializing in deportation defense who frequently appears in Boston Immigration Court, I find it fascinating that a close family member of the President appeared yesterday in our court before our own Immigration Judge Shapiro.  Zeituni Onyango, the Kenyan aunt of President Obama, is in deportation proceedings in Boston as everyone on the populated Earth knows by now.

Of course, asylum applications are confidential.  I certainly have no direct knowledge about this case.  But my experience as a deportation lawyer in Boston tells me that Ms. Onyango's immigration case has been widely reported in a way that is quite misleading.  The headline of the Boston Globe, for instance, claims that the Immigration Judge allowed Ms. Onyango to stay in the U.S. until February 2010.  What is misleading about this headline is that it falsely suggests that the Immigration Judge made a discretionary decision in favor of Ms. Onyango.  This is not at all what happened at the hearing yesterday.

Allow me to explain.  But first, some background:  In 2004, according to press reports, Ms. Onyango applied for asylum and the Immigration Court in Boston denied her application.  As a result, she received an order of removal.  The Immigration and Nationality Act allows applicants to reopen removal proceedings where the applicant can present evidence of changed circumstances that could not have been presented at the prior hearing. My guess is that the immigration lawyer defending Ms. Onyango filed a motion to reopen and argued that the conditions in Kenya have changed in a way that would affect the merits of her claim.  A second and obvious argument as to changed circumstances is that Ms. Onyango would likely be a target if she were returned to Kenya because she is now well known as the aunt of the President of the United States. 

After Ms. Onyango filed her motion to reopen her order of removal, the Immigration Court in Boston had to make a discretionary decision as to whether to grant or deny the motion to reopen.  It is clear that the Court granted her motion to reopen because if it hadn't, she wouldn't have had to appear in Immigration Court.

What actually happened in Boston Immigration Court yesterdays is that, most likely, Ms. Onyango appeared at what is called a master calendar hearing.  A master calendar hearing is usually a brief, administrative hearing in which the Immigration Judge sets up the issues in contention and, typically, schedules a merits hearing at which these issues can be addressed.

So when the Boston Globe announced that Immigration Judge Shapiro allowed Ms. Onyango to remain in the U.S. until February 2010, what really happened is that she just showed up for a routine master calendar hearing and the Immigration Judge scheduled her to return for a merits hearing.  That's it.  The Immigration Judge didn't grant her a reprieve or approve her application for asylum.  This result gives us little indication about her prospects for success in immigration court.  It does tell us that the docket of Boston's Immigration Court is so full that asylum applicants need to wait almost 12 months to have their cases heard--even if your nephew is the President!

This evening I attended a meeting of the New England Chapter of the American Immigration Lawyers Association (AILA).  Robert Halpin, the Court's Administrator, announced that Boston's new Immigration Judge, Brenda O'Malley, will be taking the bench and hearing deportation cases starting May 18, 2009 after training in Immigration Court in Boston, MA and Hartford, CT.  Judge O'Malley has built a distinguished career having served previously with, among other places, the Office of Immigration Litigation, the Executive Office of Immigration Review (EOIR) Office of Chief Immigration Judge.  Apparently, she even worked at one point as a law clerk with Boston's Immigration Court!

Boston immigration lawyers with backlogged deportation cases are thrilled that we will soon have a new, 7th Immigration Judge to relieve the Immigration Court's busy docket.

Congratulations! An Immigration Judge in Boston just ordered the release of your friend or loved one with an immigration bond. He or she will be released from the custody of Immigration and Customs Enforcement soon after you post your immigration bond. As an attorney specializing in deportation defense, I routinely represent detained immigrants in Immigration Court in Boston. I can offer you the following suggestions to help make the process of posting an immigration bond a more hassle-free experience.

1. Call the immigration bond officer first at (781) 359-7670.

Before you drive to the immigration office in Burlington, Massachusetts to post your immigration bond, I strongly suggest that you call and speak to the immigration bond officer in charge of your friend or loved one. 781-359-7670 is a phone number that Immigration and Customs Enforcement has dedicated exclusively to immigration bond inquiries. All other immigration questions should be directed to the main phone number at 781-359-7500. By calling in advance, you're putting the immigration bond officer on notice that you plan to post the bond. This extra step will give the immigration officer time to locate the file of the person detained and to do other preliminary work. As a result, the immigration bond will be confirmed faster and your friend or loved one will be released with less delay.

2. Who can post an immigration bond?

An immigration bond can only be posted by someone with U.S. citizenship, legal permanent resident (green card) status or other valid US immigration status.

3. What information do I need to post an immigration bond?

You will need the A number (alien registration number) of your friend or loved one and the address where he or she will live after being released from custody.

4. Where do you post an immigration bond in the Boston, Massachusetts area?

U.S. Immigration and Customs Enforcement (ICE)
Office of Detention and Removal Operations (DRO)
10 New England Executive Park
Burlington, Massachusetts 01803
Main number: 781-359-7500
Immigration Bond Inquiries: 781-359-7670

5. When can I post an immigration bond in the Boston?

Monday - Friday from 9:00 AM to 2:45 PM (EST). I recommend that you arrive early in the day.

6. What form of payment are accepted for posting an immigration bond?

Immigration bonds must be posted using a bank check or money order made payable to Immigration and Customs Enforcement. Do not abbreviate or use acronyms. Immigration and Customs Enforcement must be spelled out in full in your check or money order or your payment will not be accepted. You cannot pay an immigration bond using cash or a personal check.

7. What forms of ID are required for posting an immigration bond?

In order to post an immigration bond, you will need a driver's license, passport, or other government-issued photo ID. You will also need to bring your original Social Security Card or Social Security Form SSA-2458. If you are a US citizen, bring your original certificate of naturalization or US passport. If not, you must bring your alien resident card (green card) or valid, unexpired work permit (EAD card, Employment Authorization Document).