Things are never as simple as they seem on the surface

Today I’m working on a case of an individual who was admitted to the United States in 2003 as an E-2 derivative (Investor Visa). My client was authorized to remain in the United States until April 2005.

Immigration Court proceedings were instituted against her last month by the filing of a Form I-862, Notice to Appear with the Immigration Court. The Department has charged her with overstaying her visa under INA §237(a)(1)(B). My client was released from custody without having to post bond, and is scheduled to appear in Immigration Court later this month to answer the charges of removability.

At first glance this case appears to be of little consequence as my client has been charged with the most minimal immigration violation there is; overstaying her visa. Unfortunately for my client there is trouble beneath the surface.

My client has a series of minor convictions which have not been alleged by the Department when they instituted removal proceedings against her. This is surprising because four years ago she applied for her lawful permanent residency (her Green Card), and this application was denied due to the fact that she failed to provide the Department with a certificate of disposition from the criminal court where she was charged with a criminal violation. The records that were requested by the Department included certificates of conviction relating to criminal charges of simple assault, second degree trespassing, and possession of a controlled substance.

What is of significance is that my client was released from custody on her own recognizance without having to post bond. This is significant because she is most likely subject to the mandatory detention provisions of INA §236(c).

The next question of importance is whether her convictions have any significance from an immigration standpoint. Her assault and trespassing convictions most likely do not render her deportable because they are probably not considered to be crimes involving moral turpitude, but her drug possession conviction is another story.

I need to obtain the certificates of disposition from the criminal courts in question to determine what my client is guilty of, as well as the underlying State statutes to be able to determine the extent of the immigration consequences of her convictions, if any. I’m rolling up my sleeves because there is work to be done.