“My older brother was arrested this weekend for drunk driving. He does not have legal papers. Our parents brought us to the U.S. when he was six years old. He met with some ICE officers at the Larry D. Smith jail in Banning. They said he is going to be transferred to immigration detention. He is married with two small kids. Will he get deported? Is there anyway for him to fight his case?“
(Submitted by Esther C., Palm Springs, CA)
It seems like your brother may have a few options to fight deportation. However, the best answer I can provide is “maybe.” A lot more information needs to be known.
But before I begin, I want to emphasize that it is in your brother’s best interests to speak with a lawyer as soon as possible. Hopefully, he has not pled guilty yet. For immigrants, it is never wise to go forward in a criminal case without seeking immigration advice.
If your brother has not yet pled guilty, you should try to find a criminal defense attorney who knows how certain state convictions can strip his chances of fighting deportation charges.
This is not always possible. Some criminal defense lawyers do not understand how state convictions can destroy your brother’s immigration case. Don’t take chances if you feel this way about his criminal attorney. Instead, you should also consult an immigration lawyer – before your brother agrees to a plea bargain with the District Attorney’s Office.
Now, let me turn to some immigration questions.
Based on your information, I perceive at least three possible ways to fight his case.
- Deferred Action For Childhood Arrivals (DACA)
- Permanent Residency Via His Wife’s Petition
- Cancellation Of Removal
Each program has different requirements. But there are some issues which could harm his chances for success, regardless which type of relief he seeks.
First, more information is needed about your brother’s immigration history.
You mentioned that your parents brought him into the U.S. when he was six years old. Has he ever left the U.S. since that time?
If he has left, when did he leave and for how long? Why did he leave?
You also stated that your brother does not any immigration papers? Did he ever have a green card?
How about your parents? Are they legal residents or citizens? When they brought your brother into the country, did he enter legally or without permission?
Second, more information is needed about his criminal history.
Is this DUI his first arrest? Or does he have prior arrests and convictions?
If he has had other arrests, when was he convicted? What were his charges? How much time did he spend in jail?
As I mentioned, some convictions could disqualify him from a fighting deportation. For instance, if he had any earlier convictions, he might have committed what immigration law calls an “aggravated felony.” This sometimes happens even when the state conviction is not considered a major violation.
As you can see, figuring out if and how your brother can fight against being deported is quite complicated.
This is why I recommend that you and your family talk to an attorney who understands how immigration works before your brother makes a decision whether to plead guilty or not guilty.
Before closing, because so much is at stake, I recommend moving forward quickly to protect your brother’s rights.
By Carlos A. Batara, Filed Under Q&As: Deportation And Removal Defense.
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