What do you have to do to have an immigration finding 'overturned'?

Asked over 2 years ago - Spartanburg, SC

I'm a USC married to an alien who was deported after pleaing "guilty" to Marriage Fraud. His exwife gave a statement at their 2 year interview and he was placed in procedings. He was advised by a public defender that he would be deported no matter the outcome (guilty or not), and if he prefered to go home sooner he would need to tell the judge he married for documentation purposes. He was NEVER informed of the ban and the PD didn't try to rebut the information contained in the letter. Husband and ex did cosummate the marriage, had an apt. together (but she never moved in as she was suppose to--said she wanted to be close to her kin who lived in a different city than where DH was employed via contract),joint taxes/bank acct, and acknowleged financial support from DH. DH had job bf marriage.

Attorney answers (6)

  1. Haroen Calehr

    Pro

    Contributor Level 17

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    Answered . wow what a cluster. Did the PD advise your hubby of the express immigration consequences of pleading guilty? There is a 2010 US Supreme Court case, Padilla v. Kentucky, that is essence states that the defense counsel has an independent duty to advise criminal defense client prior to taking a plea of the express immigration consequences of pleading guilty if the consequences are as crystal clear as they appear to be in your husband's case, i.e. permanent bar for marriage fraud. If the PD failed to do so or misadvised him due to lack of knowledge, where he should have associated him self with competent immigration counsel prior to the plea, then he can try to get this plea agreement set aside and nullified due to a constitutional defect and if the judge were to grant this motion (in Texas its called a Writ of Habeas) then this erases his plea and he can start over again and aim for a better plea or even trial since pleading guilty to marriage fraud is permanent suicide there are no waivers or excuses EVER this is a permanent bar, he can never be sponsored for any type of immigration benefit. You could try to appeal the I-130 denial with his first wife with the Board of Immigration Appeals in Virginia which is an administrative remedy with USCIS. Problem is that usually the appeal period is only open for 30 days. Sounds that the 30 days have long passed. Theoretically, you can also file a new I-130 with USCIS. They would deny it stating that he has a permanent bar for marriage fraud based on his first marriage. Then you could file an appeal and you would have to be able to have the first wife proof by clear and convincing evidence that his first marriage albeit not perfect was bona fide and legitimate. This is a real up hill battle and the chances are not good. But those are the two avenues that I can think of in your case which you can opt to pursue parallel. Of course the odds will improve dramatically if you get the criminal plea overturned based on it being an un-intelligent, and constitutionally lacking. Good luck.

  2. Paul DeWitt

    Contributor Level 10

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    Answered . First, there is no public defender in immigration proceedings. Something is wrong or incorrect in how you understand the case and this is not good. Maybe he had pro bono representation, but this is irrelevant.

    Second, if he has already been removed, this is a very difficult case.

    You should contact an immigration attorney for a consultation on the options available.

  3. Neil Ian Fleischer

    Contributor Level 20

    5

    Lawyers agree

    Answered . Who made this filing? Was it USCIS or was he prosecuted in Federal Court?

    Neil I Fleischer (513) 977-4209 www.immigrate2usa.com Note: Neil Fleischer is an attorney licensed in the State... more
  4. Philip Alan Eichorn

    Contributor Level 19

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    Answered . There are more issues here than can be addressed on a message board including but not limited the criminal conviction, removal order, ineffective assistance of counsel and how undo it all. Please gather all documents and hire a lawyer who excels in such cases.

  5. J Charles Ferrari

    Contributor Level 20

    3

    Lawyers agree

    Answered . Your facts are unclear. Was the person prosecuted in Federal court?

    Regardless, at best, this is an extremely difficult case.

    You really will need to retain an experienced immigration lawyer to review all the facts and advise you accordingly.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more
  6. F. J. Capriotti III

    Contributor Level 20

    2

    Lawyers agree

    Answered . Get a private attorney to review his case.

    www.capriotti.com -- franco@capriotti.com -- Senior Legal Counsel -- Capriotti International Law -- Legal... more

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