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Working Together: @NIJC and Texas Federal Defender help a father keep his green card

August 27, 2012

Photo credit: James Burke via Creative Commons

Re-posted from the National Immigrant Justice Center

These Lives Matter: Collaboration and Success in a Joint Federal Defender-Immigration Case

The U.S. government’s criminalization of immigrants has marooned thousands of men and women in the quagmire where criminal and immigration laws meet. For this latest post in NIJC’s These Lives Matter series, two members of NIJC’s legal staff and a federal defender in Texas tell the story of how they are working together to help a hardworking father keep his green card.

Something amiss

By Gabriel Reyes, Assistant Federal Defender, Alpine, Texas

In March 2012, I was appointed to the case of Jorge, a lawful permanent resident (green card holder) from Mexico who had lived and worked in Ohio for decades to support his family before he was charged with illegal reentry. As a federal public defender in west Texas, I’ve had many such cases. However, as soon as I began exploring Jorge’s history, I noticed something unusual.

I saw right away that Jorge had not been present at the immigration hearing in which the judge had issued the deportation order the government later used as the basis for the illegal reentry charge.

Illegal reentry—now the most prosecuted crime in the United States—is charged when a non-citizen who has a prior deportation order comes back into the United States without permission. If there is some type of flaw with the underlying deportation order—if there was a constitutional violation or procedural irregularity in how it was issued, for example—then the person has a valid defense in his criminal illegal reentry case. However, it’s a tough defense to raise. At the end of the day, even if the person is acquitted of illegal reentry, they still have the underlying deport order against them, which immigration authorities can reinstate at any time.

The far better route to help a client who was unjustly ordered deported in the first place is to try to reopen the person’s underlying deportation case in immigration court and vacate the deportation order. If this strategy succeeds, the court must dismiss the illegal reentry charge. But there are significant hurdles in taking this route, too. Because there are strict timing rules for reopening immigration cases, many people run out of time. Even more significantly, public defenders are limited to representing clients in criminal cases, not deportation cases, and free immigration legal service providers who are able to step in are few and far between.

I asked Jorge why he hadn’t attended his deportation hearing, and this is when I knew we had a case. Jorge was clearly an attentive, responsible, and capable person. He had attended all of his prior immigration hearings. He had worked for decades at a plant in Ohio and had been promoted to supervisor. He was a loving father and husband and worked hard to take care of his family as best as he could—sending money and making visits, because his wife and children lived in Mexico.

Jorge told me that a few weeks before his hearing, his wife had called to tell him that their son was gravely ill. Jorge contacted the immigration court to make sure that he had time to do so before his hearing, and then went to Mexico to visit his ill son. He diligently brought his paperwork with him, and when he came back to the United States days before his hearing he presented it to border officials. The documents showed that he had an immigration court hearing a few days later, and Jorge told the officials that he was expected in court. Nevertheless, border records show that the officials turned Jorge away and sent him back to Mexico. In so doing, they violated Jorge’s right to come into the United States and attend his hearing. A few days later, the immigration judge had no choice but to order Jorge deported “in absentia.”

I sensed that there was a way to challenge the deportation order, since Jorge had tried to come back for his hearing but was barred from doing so. But, not being an immigration lawyer, I didn’t know how to go about doing it. I reached out to my immigration clinic professor at Columbia Law School for advice. She in turn sent an email to a national listserv of immigration lawyers asking if anyone might be willing to try to reopen Jorge’s immigration case in Ohio.

That same day, Sarah Rose Weinman at the National Immigrant Justice Center in Chicago responded to the listserv posting and offered to help.

To continue reading, please visit the original post from the National Immigrant Justice Center.

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