Help - served immigration detainer

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freddy22

Registered Users (C)
my son was served a immigration detainer and is being held pending investigation :
He has been GC holder since december 2005 although we applied in 2001 for it the INS lost the application:
He was found guilty of a petty larceny charge - a crime of moral turpitude and this triggered the detainer:
He violated probation and instead of remaining on probation they gave him 365 days weekends in jail and he went n for the first two days and that when they held him:
The immigration says he has a good chance of avoiding deportation as he was charged with a petty larceny charge BUT as I read it right they only count the first 5 years of LPR from the date the card was issued and not the date of application although they lost his file therefore the 5 years is not up until next december 2010 so he falls in the within 5 years catergory but has lived here since 2000 more than 7 years;
I have no clue here what to think......the court messed up and did not class this as a youthful offender which we were told it was and thats why it surfaced...we also were not told of any immigration consequences by any judge by admitting to anything..help advice please!
 
First and foremost: forget what you were told by the court or should have been told and get him an immigration attorney right now, do it today. Don't waste valuable time here looking for subjective opinions. Get an attorney now!
 
He is deportable under section 237 of the INA. It isn't the courts fault that your son is a thief, please don't blame them. Did you forget that he violated the terms of his probation, I guess it is their fault too...


freddy22 said:
my son was served a immigration detainer and is being held pending investigation :
He has been GC holder since december 2005 although we applied in 2001 for it the INS lost the application:
He was found guilty of a petty larceny charge - a crime of moral turpitude and this triggered the detainer:
He violated probation and instead of remaining on probation they gave him 365 days weekends in jail and he went n for the first two days and that when they held him:
The immigration says he has a good chance of avoiding deportation as he was charged with a petty larceny charge BUT as I read it right they only count the first 5 years of LPR from the date the card was issued and not the date of application although they lost his file therefore the 5 years is not up until next december 2010 so he falls in the within 5 years catergory but has lived here since 2000 more than 7 years;
I have no clue here what to think......the court messed up and did not class this as a youthful offender which we were told it was and thats why it surfaced...we also were not told of any immigration consequences by any judge by admitting to anything..help advice please!
Click to expand...
 
so your saying he has no chance to stay of have cancelation of removal?
Is ALL Petty Larceny offenses classed as CMT OR does it depend on ach individual case?
My son never stole ANYTHING thats the whole deal here - he basically was with a bunch of AMERICAN citizen trash kids who stole snow mobiles and joy rided them and HE my son stole NONE of those snow mobiles but MERELY was with them when they did steal them AND was given a ride on the passenger seat by them - he NEVER rode one, took one or took possesion of one or stole one it was the OTHER kids that took them - he was in the wrong place at the wrong time:
I KNOW he has culpability and there is no excuse as he knew what they were doing BUT in this case would a immigration judge deem that HE my SON committed a CMT even though charged with petty larceny as he had NO INTENT or did he participate in the taking of:
 
dafortycal said:
He is deportable under section 237 of the INA. It isn't the courts fault that your son is a thief, please don't blame them. Did you forget that he violated the terms of his probation, I guess it is their fault too...
Click to expand...

so you are an attourney?
 
reply

just a guy that deported a bunch of theifs eh...so in all your other posts why do you ask questions if you know the law?
 
Why don't I answer?... Because Immigration Judges don't always follow the law as written in the INA. You never know what they will do until the very end, plus I do not have a set of conviction documents or your States statutes to look at. He might or might not be deportable, but given the fact that a ICE agent placed a detainer, it isn't looking good since they rarely cancel one once it is written.
 
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thanks

thanks for your answer - listen I know you dont know me or I know you but in any way of yu coul help me with any suggestions or feedback I am open to that....see I am a worried father here with a 18 year old son that might get deported and if so I have to leave too as I made a promise to him as a baby that I would never leave him as his mother left him when he was 11 months old therefore deporting him would deport me and I would leave my daughter 22 with her child behind..either way if and when it happens I will hurt someone with my decision to stay or go and I will go....also..I have worked out why they are detaining and interested in him - he violated probation and was given 365 days weekend jail time and because he already did 60 days weekends as part of the original sentance this now pushes his time over 365 days and makes the petty larcent charge a aggrevated felony right?
VOP when violating probation and been given a sentance for that violation then adds time to the original sentance and this is why it now has come to light..correct?
 
From what I have seen in the past. If he violated probation, they will re-sentence him in the first case and given credit for time already served.


Not being told of the immigration consequences will not matter much to ICE, but it might be enough to get the County to toss out the theft charge with the possible year sentence, and amend it to something lower that carries a lower sentence. See a Attorney!
If he is getting a Public Defender, maybe he can work out the deal.
 
I dont think they did that they simply offered a 'package deal for that court and another as 2 courts were involved in different countys and the package deal was 365 days weekends for the violation of probation BUT the other court would not accept the package deal as jails cannot accept running weekends concurrently:
I think immigration is looking at the VOP as adding that new time as culmative and adding that to hs original 60 days which he served before the VOP and thus triggering a detainer and they are seeing it as the VOP time added onto his original sentance which takes him over the 365 days if you add 60+365 and thus turning the misdemenaor petty larceny into a aggrevated felony in the eyes of the Immigration correct?
 
VOP is not a CIMT, nor is it something ICE can use against him. The thing that counts is what his sentence will be for the theft. I don't think you are understanding something. If his crime will only get you a max sentence of 1 years in your State. You can not use a sentence of probation to make something a Ag.felony. It will not be a Ag.felony, but it will remain a CIMT.

INA section 101 (a) 43(G)

Crime:
Theft, Burglary or Larceny Offenses (includes Receipt of Stolen Property)

Second column reads:
CONVICTED AND AT LEAST a ONE year sentence of imprisonment*

Footnotes:
Second, the alien must be CONVICTED of the crime in the chart’s SECOND column.
* IMPRISONMENT includes any sentence except probation.

"For instance, imprisonment for INS purposes, includes parole, suspended sentence, adjudication withheld, jail, prison, etc. A crime, which is a misdemeanor under state law, but if prosecuted under a Federal law with the same elements would have been a FELONY, is an INS Defined AGGRAVATED FELONY." ..... (Something like sexual assault of a child)
 
Thanks!!

You have been the ONLY person I have been able to get some kind of answers from and I thank you dearly for the information you are providing here!

SO to recap:
On the fact of it:

My son has a conviction for Petty Larceny we cannot get away from that and it is classified as a CMT in the eyes of the INS:
It does not matter does it the elements of the actual crime itself and I ask because the crime was for snowmobiles - he and other teens joy rided snowmobiles and he was not the one that took anything but was merely there but aware when they did which makes him culpable:
A case could have been argued and still could that it was joyriding and not petty larceny - but if this goes to immigration court then it cannot be argued can it?...that this was not a theft of permanent taking by him and MORE a crime of joyriding - they do not consider the individual circumstances?

If we then look at the law we find that in NY this misdemeanor petty larceny has a maximum sentence of 1 year - misdemeanor A:
He was given 3 years probation, $200 fine and 60 days jail and restitution(all paid) and has served the 60 days weekends:
He violated probation by committing another offense - still pending in court and not a CMT(criminal trespass):

He was given 365 days weekend jail in relation to the VOP:

As you say above that this VOP sentence or time is NOT counted as jail time for immigration purposes then I see the following and correct me if wrong:

Under
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part IV > § 1227
§ 1227. Deportable aliens

(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.

In his case his petty larceny is a CMT:
He has been here since 2000 entered legally and we changed status or applied for LPR status in 2001 and he was granted LPR in 2006 - they lost our files for over 4 years although I had a receipt and we should have been given green cards within 12 - 18 months - they apologized but it is what it is:

Under the statute of law defined above it says committed within 5 years AFTER the date of admission and says nothing about within 5 years of LPR status(as if it did 2006 to present is not 5 years or more in his case as a LPR)
If we define it as within 5 years of admission he has been here over 9 years:
Lastly been convicted of a crime where a sentance of 1 year or more may be imposed - well Petty Larceny has a MAXIMUM sentance of 1 year:
So this COULD be defined as (II) above then?

On the vague information you have - what do you think his chances or being called up to immigration court NTA and if so would they go for deportation?
I know I am asking questions you may not be able to answer but I REALLY appreciate you help so far!
 
another question/query

I am getting confused with all I read..I appreciate your help and input:

My son was originally sentanced to 60 days weekends, fined and put on probation for 3 years for the petty larceny charge and other insignificant misdemenaors(YO) so the sentance was not primarily for JUST the Petty Larceny charge but for an array of charges:

He completed the 60 days weekends and paid the fines BUT as you know violated probation and they revoked it:
They did not reopen the orginal charges but gave him a package deal for two courts on probation violation and gave him another 365 days weekends for the VOP:

Now this is where I am confused:
DOES the additional sentance for VOP count as sentanced imposed on the Petty Larceny conviction added to his orginal 60 days he served?

This is where I am un clear on this definition:
(Petty Larceny class A misdemenaor with a max sentance of 1 year in NY)

If this was true then how could someone be sentanced to MORE than the offense allows - IE maximum sentance 1 year:

If we add 60 days to the VOP of 365 this adds up to 425 days and how can you get a sentance of 425 days for a crime that is only punishable by a maximum of 365 days IF the VOP is counted towards the sentance served for the Petty Larcent charge as indictaed here..

Your thoughts?
 
dafortycal said:
VOP is not a CIMT, nor is it something ICE can use against him. The thing that counts is what his sentence will be for the theft. I don't think you are understanding something. If his crime will only get you a max sentence of 1 years in your State. You can not use a sentence of probation to make something a Ag.felony. It will not be a Ag.felony, but it will remain a CIMT.

INA section 101 (a) 43(G)

Crime:
Theft, Burglary or Larceny Offenses (includes Receipt of Stolen Property)

Second column reads:
CONVICTED AND AT LEAST a ONE year sentence of imprisonment*

Footnotes:
Second, the alien must be CONVICTED of the crime in the chart’s SECOND column.
* IMPRISONMENT includes any sentence except probation.

"For instance, imprisonment for INS purposes, includes parole, suspended sentence, adjudication withheld, jail, prison, etc. A crime, which is a misdemeanor under state law, but if prosecuted under a Federal law with the same elements would have been a FELONY, is an INS Defined AGGRAVATED FELONY." ..... (Something like sexual assault of a child)
Click to expand...

But he violated probation and then was given 365 days for violating probation therefore can this be deemed as sentance imposed to the original sentance of 60 days???
 
Help urgent

UPDATE from this as above;

My son is in custody and I am bonding him out this week;
ICE charged him deportable as a Aggrevated Felon becuase ;
He had a PETTY LARCENY in 2009 (misdemeanor) - orginal sentance to 60 days weekend intermittent jail and 3 years probation;
He violated probation and was given a year of weekends by the judge;
Now ICE are charging him as a AF saying he is deportable because his record shows 365 sentance for the petty larceny!!!
I an others disagree and that 'a year of weekends' is NOT a sentance of a year or a suspended year;
Any case files or history anyone - your answers are welcomed!
 
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