The laws that impact your immigration status are sometimes a complex web traversing multiple areas of law. So, you may wonder, what happens if a criminal statute is amended and that change alters the status of my deportation case? Potentially, that kind of change may be a crucial event in your favor. A knowledgeable Maryland deportation defense lawyer may be able to help you use that change to get your deportation order reversed.
To get an example of how the process unfolds, we can look at the deportation case of D.W., an immigrant from Jamaica. In 1987, he moved to the U.S. and became a permanent resident. He was six years old at that time.
A 2003 run-in with police in Virginia resulted in a conviction for assault and battery of a police officer, obstructing justice, and disorderly conduct. According to the court, all those crimes were the result of D.W.’s resisting an officer who was trying to mace him after the officer had already handcuffed him.
In 2007, D.W., who was without an attorney at that time, lost his appeal and the Department of Homeland Security deported him to Jamaica. At that time, the DHS considered D.W.’s assault charge to be an aggravated felony and a “crime of violence” under 18 U.S. Code Section 16.
Over the next decade-plus, that definition changed. In 2010, the U.S. Supreme Court clarified that underlying transgression must involve “violent force” — “force capable of causing physical pain or injury to another person” — to qualify. (D.W.’s assault did not.) In 2018, the court wiped out one part of Section 16 — Subsection (b) — as unconstitutionally vague. The result of those intervening events was that the assault D.W. committed no longer met the criteria for deportation.
Reopening or Seeking Reconsideration of Your Deportation Case
When something like that happens, the law allows you to ask the immigration authorities to reopen or reconsider your case. Depending on which request you file, you have either 30 days or 90 days to make your request.
Sometimes, though, as was the case for D.W., circumstances may preclude you from meeting those statutory deadlines. When that occurs, you must obtain a court order that equitably tolls the deadline and permits you to continue despite the deadline’s passing. To be entitled to equitable tolling, you have to demonstrate to the judge that you have “been pursuing [your] rights diligently but extraordinary circumstances beyond [your] control made it impossible to file within the statutory deadline.”
This hurdle is a high one, but not extraordinarily high. The law does not require that you prove you exercise maximum diligence; only that you engaged in reasonable diligence.
The evidence in D.W.’s case established that degree of diligence. The court noted that, before the Supreme Court made its 2010 ruling regarding the level of force necessary to trigger Section 16, D.W. argued three times that the Virginia statute he violated “did not comport” with the physical force requirement. Ultimately, D.W. and his wife secured an attorney who discovered the groundbreaking 2018 decision only one year after the court issued it. That, according to the court of appeals, was enough to show reasonable diligence.
Given the incredibly high stakes involved in any deportation case, it is well worth your while to ensure you have powerful legal representation. Get in touch with the knowledgeable Maryland deportation defense attorneys at Anthony A. Fatemi, LLC, who possess the skills and experience you need and the diligence and determination you deserve. Contact us today at 301-519-2801 or via our online form today.