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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105668
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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My son who is a legal permanent resident is in prison (an

Customer Question

my son who is a legal permanent resident is in prison for 288a(an aggrevated felony). he has an immigration hold. he'll be out of prison on may and i understand he would be transferred to ICE upon release. is there a change for him to ask for voluntary deportation?
JA: Thanks. Can you give me any more details about your issue?
Customer: he pleaded no contest on a 288a.
JA: OK got it. Last thing — Immigration Lawyers generally expect a deposit of about $18 to help with your type of question (you only pay if satisfied). Now I'm going to take you to a page to place a secure deposit with JustAnswer. Don't worry, this chat is saved. After that, we will finish helping you.
Submitted: 10 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Hello and welcome to JustAnswer. My name is***** and I am a licensed attorney with over 13 years of experience.

Not sure which state he is in. What was the named charge that he was convicted of and what was the actual sentence?

Customer: replied 10 months ago.
California....Charged with exhibiting harmful material to a minor.
Customer: replied 10 months ago.
actual sentence is 3 years in prison
Customer: replied 10 months ago.
actually, at 1st he was jailed for 7 months and was given a 1 year probation but he violated his probation and was imprisoned for more than a year until may 2016 and hhas now an immigration hold
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Ok. Have you looked into the possibility of a governor's pardon or a vacature of the conviction?

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

I do not know why you are not responding, but you are not charged per question, per response, nor per answer. So after I give you my answer, you can continue to ask me questions without additional charge until you are satisfied. I apologize if it is a site issue that you posted and the post did not go through.

The reason I am asking if you have explored the possibility of a governor's pardon or vacature is that IF he is not eligible for Voluntary Departure if he has been convicted of an aggravated felony, he may have to look towards those as options. Let's take this step by step. First, here is the law in regards ***** ***** departure:

https://www.law.cornell.edu/uscode/text/8/1229c

(a) Certain conditions

(1) In general

The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense under this subsection, in lieu of being subject to proceedings under section 1229a of this title or prior to the completion of such proceedings, if the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this title.

We then go to section 1227:

https://www.law.cornell.edu/uscode/text/8/1227

(2) Criminal offenses

(A) General crimes(i) Crimes of moral turpitudeAny 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.

(ii) Multiple criminal convictions

Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

(iii) Aggravated felony

Any alien who is convicted of an aggravated felony at any time after admission is deportable.

and

(4) Security and related grounds

(A) In generalAny alien who has engaged, is engaged, or at any time after admission engages in—(i)

any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,

(ii)

any other criminal activity which endangers public safety or national security, or

(iii)

any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,

is deportable.

(B) Terrorist activities

Any alien who is described in subparagraph (B) or (F) of section 1182(a)(3) of this title is deportable.

As to what an aggravated felony is, here is the law:

https://www.law.cornell.edu/uscode/text/8/1101

(43) The term “aggravated felony” means—

(A)

murder, rape, or sexual abuse of a minor;

(B)

illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18);

(C)

illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);

(D)

an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;

(E) an offense described in—(i)

section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);

(ii)section 922(g)(1), (2), (3), (4), or (5), (j), (n), (

o

), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or(iii)

section 5861 of title 26 (relating to firearms offenses);

(F)

a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at [5] least one year;

(G)a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 

5

least one year;

(H)

an offense described in section 875, 876, 877, or 1202 of title 18(relating to the demand for or receipt of ransom);

(I)

an offense described in section 2251, 2251A, or 2252 of title 18(relating to child pornography);

(J)

an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;

(K) an offense that—(i)

relates to the owning, controlling, managing, or supervising of a prostitution business;

(ii)

is described in section 2421, 2422, or 2423 of title 18(relating to transportation for the purpose of prostitution) if committed for commercial advantage; or

(iii)

is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);

(L) an offense described in—(i)

section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18;

(ii)

section 3121 of title 50 (relating to protecting the identity of undercover intelligence agents); or

(iii)

section 3121 of title 50 (relating to protecting the identity of undercover agents);

(M) an offense that—(i)

involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii)

is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;

(N)

an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter [6]

(O)

an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;

(P)

an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;

(Q)

an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

(R)

an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;

(S)

an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;

(T)

an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and

(U)

an attempt or conspiracy to commit an offense described in this paragraph.

The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.

From my reading of the law, your son MIGHT be eligible for voluntary departure. Why? Because from what I see, if he was not convicted of child pornography and he was not convicted under California Penal Code 288, then there is no aggravated felony against him. Since you have not responded, I have to assume that he was charged and convicted under California Penal Code section 288.2 and from my research, that does not make him ineligible for voluntary departure. If he was convicted of something other than 288.2, please let me know.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

Customer: replied 10 months ago.
he was charged under section 288(a)...so what happens when he is released in prison?
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Thank you for responding. Please understand that I am only compensated by the website if you leave a positive rating. I have done extensive research for you and I hope you appreciate that. It costs you nothing to leave a positive rating for me, so please do not forget.

Take a look at this link on page 204:

http://www.ilrc.org/files/documents/n.10-sex_offenses.pdf

and here on page 40:

http://www.nlada.org/DMS/Documents/1137769658.65/California%20Chart.pdf

As you can see, it is a deportable offense. So if a Notice To Appear (NTA) has been issued, then ICE will take him into custody when he is released from prison. He would not be eligible for Voluntary Departure in that regard. Unless there is some relief available such as something was done incorrectly at the criminal process level and the criminal case can be reopened and the conviction vacated, or unless he can secure a governor's pardon, they will process him for deportation which can take weeks or months while he is detained since he is what is called Mandatory Detention. About the only thing you can do in that regard is to contact his home government and make sure that they inform ICE as quickly as possible that they are willing and able to receive him. I wish I had better news for you.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Hello. I'm just following up with you again to see how everything is going. Did my answer help? Please let me know. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Hello. I'm just following up with you again to see how everything is going. Did my answer help? Please let me know. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Thank you for your kindness and respect. Good luck to you.