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Post-Conviction Relief Granted to a Mexican Immigrant Living in the United States for over 17 Years

In September 2011 I received a call from a colleague who wanted to refer a case to me because of my expertise and success in filing Post-Conviction Relief Motions. I listened closely as she explained some of the facts. I grew intrigued and decided that I would take the case. My colleague said that the Lawful Permanent Resident mother of a young man age-28 would be contacting me to schedule an appointment; and she did.

The mother was a Mexican citizen and national who had entered from the border of Mexico with her son in 1994 at Los Angeles, California. At that time, her son, was 11-years old. Her husband had been killed in Mexico City and she fled to the safety of the United States. She soon moved to New Jersey with her son where he attended middle school and high school. He even had some years of college. However, when he was 19-years old, he made one tragic mistake that would change his entire life.

In the summer of 2003, after a long day of working at a restaurant in New York City, he had numerous alcoholic beverages with several co-workers and got on the bus to New Jersey drunk. As he walked to his door, he realized that his key was not working and he opened the patio window and climbed in. He was so disoriented, he did not remember that only ten days earlier, he and his family had moved a block away. He passed out on a couch and was awoken by the sound of Police Officers yelling for him to come out with his hands up. He became scared and tried to hide. He made it outside with a pillow from the couch he had laid on.

He was arrested outside by the Police, all the while futilely attempting to explain that he lived at the location. The Police Officers tackled him to the ground and took him to the hospital where his blood was taken. He was then taken to the Police Precinct and questioned as to why he was “burglarizing” the home. He was also questioned about numerous other burglaries in the neighborhood. Again, he tried to explain that he had no intention of committing a burglary that night or any night. His explanations fell on deaf ears as we was charged with burglary, criminal trespass and resisting arrest.

He was incarcerated for four months because his bail was set to high for his mother to pay for his release. He appeared before a Judge in the New Jersey Superior Court of Hudson County. He met with his Public Defender for the first time since his incarceration and his attorney presented him with a negotiated plea deal of 5-years probation. He had a pending petition with USCIS for his green card but his attorney advised him that as long as he received probation, he wouldn’t have to worry about his Immigration status in the United States. That was incorrect advise.

He completed his probation in 2008. He never committed another criminal offense. He also never heard from USCIS about his adjustment of status to a Lawful Permanent Resident. In July 2011, while at home, there was a knock on his door. He opened it and was confronted with two Immigration and Customs Enforcement (“ICE”) agents who informed him that he was being detained because in 2003 he pled guilty to burglary and criminal trespass and that conviction would result in his mandatory deportation without any chance for a bond by the Immigration Court.

In October 2012, I filed my client’s Post-Conviction Relief Motion in Hudson County. It was a struggle; first, to convince the Criminal Court Judge that my client was facing imminent removal from the United States; and afterwards, all along the way, as the Prosecutor’s office sought an Order to Stay the Criminal Court Judge’s grant of our Order for an Evidentiary Hearing (finding my client’s case to be an exception to the Gaitan matter pending the New Jersey Supreme Court to date) and then our Order Vacating the Guilty Pleas of my client. The Prosecutor’s also requested a bail be set at $50,000 cash. The Criminal Court Judge sided with us that my client should be Released on his Own Recognizance (“ROR”).

With his guilty pleas vacated, I returned to the Immigration Court in Newark, New Jersey where I was able to obtain a $6,000 bond for my client’s release. He was released after seven months of detention at the Essex County Correctional Facility – one of the largest facilities housing detained immigrants in removal proceedings.

When I first met with my client’s mother in September 2011, she had been resigned to allowing her son to be deported to Mexico by the Immigration Court. I explained to her and strongly advised her to fight for him to stay in the United States. I went with my gut instinct that told me I could win this case. And I was happy, after months of exhausting and draining appearances in both the Immigration Court and Criminal Court, that I was right. Now, this young man has a potential future and I know that he is going to make the best of the opportunity he has been given as I continue to fight for him and other Immigrants like him.

If you would like a consultation to obtain more information regarding Post-Conviction Relief from a criminal conviction to see if you or your detained family member qualify for this limited relief from deportation please do not hesitate to contact me.

Michele Alcalde, Esq.
331 Newman Springs Road
Building 1, Suite 143
Red Bank, NJ 07701
Office (732) 784-1822

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