Determining who will qualify as having a low-priority case is the tricky part.  In announcing the new policy, the Department indicated that cases will be evaluated based on:

• the person’s length of presence in the United States;
• the circumstances of the person’s arrival in the United States, particularly if the alien came to the United States as a young child;
• the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution;
• whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard;
• the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
• the person’s ties and contributions to the community, including family relationships;
• the person’s age, with particular consideration given to minors and the elderly;
• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
• whether the person or the person’s spouse is pregnant or nursing

Just how many people will qualify is yet to be seen.  Ultimately, it is up to the Department to decide.

What is important to remember is that immigrants cannot sign up for the program, and that the new program does not lead to legalization.

Secure Communities is a program started by the Bush administration to remove violent, dangerous immigrants from the United States.  Unfortunately, all of the statistics show that a vast majority of the immigrants who are deported through Secure Communities are nonviolent individuals who have never committed a criminal offense.

The federal government has insisted that Secure Communities would be manditory throughout the United States by 2013.  With New York, Illinois, and Massachusetts no longer participating, the ultimate fate of the program is unknown.

Thanks to Governor Cuomo, New York immigrants are no longer subject to the draconian program – and I am sure they will not forget it.  Maybe Governor Cuomo will now look into whether to continue the New York immigrant pardon panel set up by the former governor.

Unfortunately, for many of these immigrants the possibility of stopping a deportation following a plea bargain is impossible.  This is because many crimes are considered aggravated felonies by the immigration laws, and result in what is almost automatic deportation from the United States for plea bargained immigrants.

Fortunately, in Padilla v. Kentucky, the United States Supreme Court recently determined that immigrants who have relied on the advice of criminal attorneys when taking plea bargains that result in automatic deportation from the United States should have the opportunity to retry their cases.  In addition, New York immigrants facing deportation have additional options in stopping their deportation through New York legal decisions.

In certain circumstances it is possible for an immigrant facing deportation to have the underlying conviction invalidated.  To find out whether a specific NYC immigrant is eligible to stop deportation following a plea agreement or plea deal, please contact a NYC immigration lawyer.

• Immigration Court receipts increased by 12% between 2006 and 2010.
• Only 43% of the Noncitizens in Immigration Court were represented.
• 51% of those who applied for Asylum were granted it.
• 44% of immigration court cases involved a detained noncitizen.
• The number of appeals to the BIA has decreased for the five last years.
• Only 8% of immigration court cases were appealed to the BIA.

A disconcerting part of the record deportation numbers released by DHS, is the department’s refusal to release statistical information about the immigrants deported without criminal records.  When will the DHS learn that transparency is the best approach?

The Pardon Board will entertain petitions from any non-citizen, even those who are not currently in immigration proceedings (i.e. removal proceedings).

Unfortunately, the Immigration Pardon Board will only accept petitions until October 1, 2010.

Who Can Apply

Any noncitizen who has been convicted of any crime committed in the state of New York is eligible to apply. It is not necessary for the noncitizen to be in removal proceedings to apply. It is only necessary that the noncitizen can demonstrate that he or she faces the possibility of being removed from the country because of the conviction.

When May a Conviction Make a Nonimmigrant Susceptible to Deportation?

Many criminal convictions result in a noncitizen being susceptible to removal or deportation. If immigration law considers a crime to be an aggravated felony or a crime of moral, the noncitizen faces the possibility of removal.  The government’s definition of aggravated felony has expanded over the years and now include many minor crimes.

How Would a Pardon from the Governor Help?

In most cases a pardon will result in the noncitizen not being susceptible to removal or deportation. In addition the noncitizen might be able to obtain naturalization or other immigration benefits. However there are cases were a pardon will not benefit a noncitizen.

What Documents Will Be Needed in the Petition

There is no set requirement for what documents are needed to be included in the petition. However a successful pardon must include an organized petition that demonstrates the noncitizen deserves a pardon. An applicant may demonstrate this by showing his or her rehabilitation, remorsefulness, and/or contribution to society.

What Happens after the Petition Is Submitted?

Once the petition is submitted, the Immigration Pardon Board will review the petition and then send their recommendation to the Governor’s office. If necessary the Board may request the applicant to appear for an interview.

Who Makes the Decision?

Ultimately the governor will make a decision as to whether to grant a pardon to a noncitizen. The Governor will make his decision based upon the petition and the Immigration Pardon Board’s recommendation.

How Likely Is the Pardon?

It is difficult to tell how lenient the governor will be in granting pardons to noncitizens facing unjust immigration consequences. However any attempt to receive a pardon should be viewed as an unlikely but possible outcome.

More Information

If you are interested in applying for a pardon, please immediately contact Gafner Law Firm to request a consultation. Time is of the essence.

Under current immigration law, long time lawful permanent residents in the United States face removal for relatively minor crimes like shoplifting – even if those crimes occurred decades ago.   This panel will offer immigrants the chance of having the conviction removed from the immigrant’s records.

Whether the panel will actually be created, and if it will remain intake once Governor Paterson’s term ends, remains to be seen.