Thursday, February 23, 2012


The background to this story is very familiar. Guillermo (not his real name) was brought to the United States by a family member when he was only 4 years old. He came, with his brothers, to join his father in North Carolina. Dad had been here as a permanent resident for about six years. Guillermo was enrolled in kindergarten and then went on to middle school. At some point, dad hired a “notario” to file an I-130 for his wife, listing Guillermo and his many brothers as derivatives. The notario then disappeared with all the paperwork, but the family did have the receipt number. Nothing was ever done to follow up or file for adjustment of status. Guillermo dropped out of school in the 8th grade to go work in the tobacco fields and bring in much needed cash. When he was eighteen he started working at a fast food restaurant, where he met Mary, a U.S. citizen. They dated and moved in together.

My client’s journey through the court system began on May 27, 2010, when he was pulled over in North Carolina on a speeding charge. The deputy said he noticed the smell of burned marijuana in the truck (as deputies so often do) and searched. In the center console he found a handgun and a burned blunt. Guillermo was arrested and taken into custody. Charges of possession of marijuana and of carrying a concealed gun were taken out against him. State charges were ultimately dismissed, but not before the feds got involved. On June 27, 2010, a federal grand jury charged Guillermo with being “an alien illegally and unlawfully in the United States [who] did knowingly possess. . . a firearm.” ICE had placed a detainer on him. Guillermo was given a court-appointed lawyer and ultimately pled guilty when she negotiated a very reasonable plea deal with the AUSA. He was sentenced to 10 months’ imprisonment.

Initially, Guillermo’s family consulted a couple of other immigration attorneys in North Carolina, who told them that there was nothing to do to help Guillermo because his conviction is an aggravated felony under immigration law. Guillermo’s court-appointed lawyer contacted me to see if I agreed, and I met with Guillermo and his family to see what options we might have. Cancellation of removal was out because of the aggravated felony, and we had no hardship claim. I decided that the only possible relief for Guillermo was going to be adjustment of status in proceedings, but there was a lot to do before that became a possibility.

First order of business was to find that old I-130 and see if Guillermo was covered under 245(i). The online case status said the petition was approved, but that didn’t tell me whether Guillermo was listed as a derivative beneficiary. Luckily, a family member found a copy of the petition that someone had once gotten from who knows where. Guillermo was listed, and the priority date was April 30, 2001. In under the wire, but as the Immigration Judge later commented, on time is on time. So now I had a 245(i) eligible client. Planet One is in place.

Unfortunately, Guillermo had long since aged out and was not covered under the Child Status Protection Act, so he would need something else. That something else had to be a new I-130, from an immediate relative so that we wouldn’t have priority date problems. Unfortunately, Guillermo and Mary had never gotten married and Guillermo was locked up in a series of county jails as he was moved around the state waiting on his court dates, then serving the remainder of his sentence. Guillermo and Mary both said that they had planned to get married but just hadn’t got round to it. Most of the jails gave us the complete runaround about allowing inmate weddings, and finally I had to go to a judge and get a signed order for a marriage in the local county jail where Guillermo was being held. The marshals moved him right before we could get it done! The next jail also said they wouldn’t permit weddings, and the local clerk of court wouldn’t even issue the license without a picture ID. One more move, and we enlisted the help of a local family law attorney. This time the clerk issued the license (accepting a printout of Guillermo’s online mug shot as the “photo ID”), but the sheriff wouldn’t cooperate. Apparently, they didn't "do" weddings at his jail. With Guillermo’s jail time coming to an end, and not wanting to have to deal with a “marriage in proceedings” issue once ICE issued the NTA, Mary took the license, a plain-clothes minister and two witnesses to visiting time one Sunday, and they were married through the glass with a deputy looking on. We got the I-130 filed as soon as possible. Planet Two is now in line.

In the weeks leading up to Guillermo's release from prison, I sent ICE a G-28 to let them know I represented him, and gave them a list of the equities in his case. I was hoping they might decide to exercise prosecutorial discretion and let him go, or at least set a reasonable bond. I wasn't very optimistic, to put it mildly, but had to try. I also asked them to send me a copy of Guillermo's Notice to Appear when it was issued. No response - not a huge surprise there. The real surprise arrived a few days later, when I learned that my client had already been issued an Administrative Removal Order, which allows for removal without any court proceedings for certain criminal aliens, including those convicted of aggravated felonies. These orders are unreviewable and unappealable. It started to look like Guillermo might be out of luck. I called local ICE and was told they would not reconsider and were transferring Guillermo to Georgia. To add insult to injury, the ICE officer had checked the box to indicate my client did not contest the order, when I knew this was not true. I contacted ICE in Georgia with my objections, and additional evidence of the equities in the case, asking for them to rescind the order and issue a Notice to Appear. After some back and forth, ICE in Georgia agreed to my request. Guillermo was going to get his day in court after all. Planet Three lines up.

It wasn't long after that that I got a copy of the Notice to Appear, which held a few more surprises. In a nutshell, my client, an EWI, was alleged to be in the United States without having been admitted, and also to have been admitted at an unknown time and place. He was then charged with deportability under INA 237(a)(2)(A)(iii) for the aggravated felony. This was, of course, nonsense, and I prepared our written response accordingly and filed a request for a bond hearing at the immigration court. The case had been assigned to a judge not known for his warm fuzzies, but it didn't take him long to agree that the NTA was incorrectly drafted. The government attorney had no choice but to issue an amended NTA, alleging only that my client was removable under INA 212(a)(6)(A)(i) for being in the United States without having been admitted, which is precisely the ground of inadmissability that 245(i) would take care of. Planet Four is in place.

Having handled the NTA, next up was bond. Both ICE and the trial attorney contended that Guillermo was subject to mandatory detention on account of his aggravated felony conviction. However, INA 236(c)(1) mandates detention for only four classes of aliens, and the relevant portion for aggravated felonies states that it applies to an alien who "is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii) , (A)(iii), (B), (C), or (D). As an EWI, Guillermo was not deportable, but inadmissible. Aggravated felonies only lead to deportability if committed "anytime after admission". Guillermo was not subject to mandatory detention, I argued. The judge set bond at $25,000. Guillermo's family was never able to find the money to post the bond, unfortunately, but we scored another point with the judge. Planet Five lines up.

By this time, the judge agreed that Guillermo was technically eligible to apply for adjustment of status in proceedings, and graciously agreed to continue the Master Calendar hearings until USCIS approved the I-130 filed by Mary. He did keep stressing that relief was in his discretion and making disapproving noises about the firearm possession. I kept reminding Mary that we were not home yet, and that it was very possible the judge would deny relief. Finally in January 2012 we had an approved I-130, the I-485 and Supplement A were filed and the Individual Hearing was set. Planet Six slips into place.

One final procedural issue threatens to derail us. There is no information I can find on how to get the medical examination done for a client in custody. A couple of AILA forum entries give contradictory, and very discouraging, answers. Either the client has to go to the doctor, which needs the cooperation of the detention center, and sometimes even a court order forcing ICE to transport the inmate, or you pay a willing doctor a very large sum to go to the jail, which sounds horribly complicated given the need for immunization shots and blood tests. Turns out that North Georgia Detention Center and the ERO officer are used to these requests, as is the one local doctor who does them. A call to the clinic to prepay the appointment and a fax to ICE and the exam is completed just in time for the Individual Hearing. Guillermo brings the paperwork with him to court. Planet Seven is in place.

The week before the hearing, I submit a brief on the legal issues and attach further evidence of Guillermo's support from the community. A couple of days before the hearing, Mary faxes me an updated letter of employment showing that she is now making enough money to satisfy the affidavit of support requirement and we arrive at the Immigration Court with everything in place - much to the trial attorney's apparent surprise. Guillermo's dad, Mary's dad and a family friend are in Atlanta with Mary for the hearing and ready to testify on his behalf, all very nervous about what might happen. In chambers before the hearing, the judge says he has read all of my submissions and hints that he is leaning towards granting relief, although I try not to get too hopeful. He wants to hear from Guillermo and asks him a lot of difficult questions about his charges. Guillermo does well. After his testimony, the judge announces that he is going to grant relief. No objection from the government, who waive appeal. The Eighth Planet falls into place and the set is complete. The judge signs the order granting permanent resident status and ordering Guillermo's release.

It took almost a year, but the planets lined up for Guillermo (with a little persistent nudging). There were a lot of hurdles, big and small, but they were all surmountable in the end. There were a lot of people along the way who said we couldn't do what we were doing, from ICE, to immigration attorneys, to Guillermo's jailhouse lawyer buddies and, at least initally, the judge. The day after the hearing, I get a text from Mary asking me to call. Worried that Guillermo's release papers have gotten delayed, I call right back. Guillermo answers, standing outside the gates of the North Georgia Detention Center.


  1. Great story about the complicated line between "illegal" and "legal" and the perseverance of a good lawyer.

  2. Great post, and great lawyering!!

  3. It's people like you who restore a modicum of the average person's faith, day by day, in the legal system and lawyers.