CASE: Motion to Terminate Removal Proceedings Based on Criminal Conviction Dismissal
CLIENT: Lebanese
LOCATION: Cleveland, OH
Our client is a Lebanese citizen and who has been a green card holder in the United States for more than 25 years. However, he was placed into removal proceedings in March 2012 due to his previous criminal record; specifically, a drug-related offense that he committed when he was a teenager. Our client contacted us in March 2012 to seek legal assistance and representation at his removal proceedings. Our office was retained on April 9, 2012.
According to our client’s Notice to Appear, he was removable for a criminal ground of deportability. Based on his removable charge, our office first sought for relief under Section 212(c) and got an individual hearing date. However, the likelihood of success for our client’s case was quite low. Nevertheless, our office did extensive researche and asked our client whether he was advised before he pled guilty for his charges at the county court. Our client told us that he did not receive any advisement as required by Ohio criminal statute.
Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the BIA held that “If a court with jurisdiction vacates a conviction based on a defect in underlying criminal proceedings, the Respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A). According to O.R.C Section 2943.031, the court must ask the following before the defendant entered the plea: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
As stated above, our client told us that he never had aforementioned advisement from the court before he pled guilty for his charge. Thus, we contacted our client’s previous criminal attorney to file a Motion to Vacate conviction based on a defect in underlying criminal proceedings – that of having a lack of advisement or lack of substantial compliance with the advisement provisions of O.R.C. Section 2943.031 from the county court.
On November 13, 2014, the county court granted our client’s Motion to Vacate for his previous criminal conviction. With that, our office filed a Motion to Terminate Proceedings to the Immigration Court and argued that our client is not removable anymore because the court with jurisdiction vacated convictions based on a defect in underlying criminal proceedings. We included the criminal court judges’ orders and other supporting documents, and argued that our client’s removal proceedings must be terminated.
On November 6, 2015, the Immigration Judge granted our Motion to Terminate Proceedings. Our client got his green card back. .