Home > Overcoming the Challenges that Teen Criminal Charges and a Child Support Warrant Created for an Immigrant

Overcoming the Challenges that Teen Criminal Charges and a Child Support Warrant Created for an Immigrant

When German Muñoz was a teenager in a town near Medellin, Colombia during the 1990’s, it was a region overwhelmed with violence from Narco-terrorists, criminal organizations and armed militias or paramilitaries. German also faced an issue that made things even more difficult, his family was very poor, being supported by only a single mother. Due to these circumstances, German was forced to seek a better life in the United States when he was only 16 years old.

He was very young and alone in an unfamiliar country, and unfortunately, he fell in with the wrong people, who eventually introduced him to drugs. He found himself using drugs to overcome his loneliness and despair, which only made things worse, until one day he was arrested by police and charged with the possession of cocaine with the intent to distribute.

As a 19-year-old boy from a foreign country, jail was terrifying, and he struggled to get the $2,000.00 in bail that the Judge had ordered. After a week in custody, he finally was able to get a loan shark to pay the bail, but he had to pay them back double with interest, and they warned him not to go back to Court until all the money was re-paid. Based on that threat he did not return to that Court.

Soon after his release from jail, his life changed with the birth of his daughter. German found he did not need drugs because he had his baby girl to take care of and for years, he was free from any trouble.

Even though he was no longer involved with drugs and did not get into any more trouble with the police, it was hard to earn enough to support a child without legal documentation to work, and it was difficult to raise a child without the help of any family. As a result, the child’s mother Sandra, asked German to take their daughter to Colombia, where he could raise her with the support of Sandra’s family while she waited to get legal status in the U.S. German agreed. For 3 years, German raised his daughter in Colombia with assistance from Sandra’s family, but without Sandra.  His relationship with Sandra ended during this separation, and once Sandra was a U.S. Legal Permanent Resident, she came back to Colombia and took their child back to the U.S.

His return to the U.S. took time but eventually he prevailed and was able to enter the country a second time, without permission. Even while German was in another country separated from his daughter, his support for her never wavered and he dutifully sent payments to her mother each month.  The only problem was that the payments were in cash, and the mother did not report to the government that she had received them. Unbeknownst to German, the state of Massachusetts issued a warrant for his arrest for allegedly not paying child support, and when he filed a petition in Court to establish visitation rights at the recommendation of his new girlfriend, he was detained on the improper claim that he had failed to support his daughter.  To make matters worse, the criminal Court where he had been charged as a teenager, had issued a warrant for him, when he had not returned many years earlier, and later ICE placed an immigration detainer against him. It was at this time, his girlfriend contacted Attorney FitzGerald.

Attorney FitzGerald devised a three-step approach at resolving the “detainers.” The child support was the most simple, so it would be addressed first.  This only required an affidavit and bank records that proved that prior child support payments had been made, as well as an acknowledgment of his continuing obligation to support his child.

Second, attorney FitzGerald would address the outstanding drug charge.  For this German had to agree to remain in custody while Attorney FitzGerald fought the criminal case, even though the Court granted him the reinstatement of his bail and this time for only $1,000.00. The criminal case had the potential to take some time but German agreed to follow FitzGerald Law Company’s instructions.  Attorney FitzGerald suspected that the evidence the government claimed to have had ten years earlier would not be available and he was right. The prosecutor could not produce sufficient evidence and so after about 45 days the criminal charge was dismissed.

Many people would have jumped at the chance to be released from criminal custody by paying a bail of $1,000.00, but German’s patience and trust in our advice would pay off.

The Immigration detainer from ICE would have been impossible to fight if there were Court proceedings open against German for not supporting his child and for selling drugs, so Attorney FitzGerald knew that it was unwise to even try, because in Immigration deportation proceedings you only get one chance under the law to present your case to be released on bond.

Also, if he had paid the bail, he would have been sent to an Immigration Jail on the Immigration Detainer and the Federal government would not have returned him to the state criminal court, and his criminal case would never have been resolved. Without the favorable resolution of the criminal case, the Immigration Court would never have released him from their custody and eventually he would have been deported.

At this point, German had evidence that both cases had been favorably resolved, and evidence that he was responsible for supporting his US Citizen child, and he was ordered to be released from Immigration Custody.  We would now device a strategy to help him obtain legal status to be able to remain in the U.S. with his child.

His freedom, after months of detention, felt incredible, being reunited with his child, indescribable, but German knew this was only the first step in a long journey and he understood his chance of remaining permanently in the U.S. was still slim…

We Never Gave Up!

Upon his release from Immigration detention in Pennsylvania, Germán returned to Boston and married his girlfriend, who had supported him throughout the time he spent in jail. Her name was Maria Luciana, and while she was born in Medellin, Colombia, she was now a naturalized U.S. Citizen.

Unfortunately, Germán could not file for residency based on his marriage to a U.S. Citizen, because he had entered the U.S. the last time without permission, so Attorney FitzGerald had to come up with an alternative. First Germán needed a work authorization card, so that he could find lawful employment, obtain a driver’s license, pay taxes, and help support his family.

There is an application for Residency, Form EOIR-42B, that can be filed with the Immigration Court, under an immigration law, Section 240A(b) of the INA, commonly referred to as the “10-Year Law,” and by filing it the person becomes eligible for a work permit.  At this point Germán had been in the U.S. for a period of ten years, interrupted briefly by his time in Colombia, and Germán had evidence to meet the other requirements of the law, so this petition was prepared and filed with the Court. Shortly after the petition was filed, Germán received his Social Security Number and his Work Permit, and for the first time in a long time, he felt like he was in a place he belonged and anything was within his reach.

There was an initial hearing before the Immigration Court at which time a final trial was scheduled to determine whether or not Germán would be ordered Deported.  The final hearing was scheduled for a date three years later. During these 3 years, Germán and his wife worked hard to get evidence to support his claim, but there was a problem with the time he spent outside the U.S., which was unlikely to be excused by the Judge, and this would make him ineligible for U.S. residency.

The alternatives he faced were poor, if he had to leave the U.S. because of a deportation, he would likely never be able to return.  To make the situation more difficult, his spouse suffered from a mental health issue that required her to have treatment here that she would not receive in Colombia.

30 days before the hearing, the final papers were filed with the Court, including a memorandum about Germán’s time outside of the U.S.  A week before the trial, the Court issued a ruling, stating Germán was ineligible for residency, and ordering him to be deported to his country.

This news was not completely unexpected, but it was still heartbreaking for Germán and his family.  Attorney FitzGerald told him that the ruling could be appealed, and while it was not likely to be overturned, it would at least give him time. The Board of Immigration Appeals reviewed his case for the next 3 years, giving Germán more time to be employed with a work permit, to save money, and to prepare for options beyond the United States.

During the 6 years his case was pending trial and on appeal, Germán and his spouse Maria Luciana, had 2 children.  Germán maintained a close relationship with his daughter, and they were supporting all children through their hard work. Extending their time in the U.S. was so important, that it was an incredible relief when the BIA ruled that Germán had been entitled to a hearing, so his case was remanded to the Immigration Court in Boston.

Just at this time, there was a significant change in the law. I-601 Waivers (immigration pardons) previously had to be processed when an applicant was outside of the U.S. at a Consulate, which caused people to have to be separated from their families for years while they waited for the waivers to be adjudicated.  The Obama-Biden Administration issued a new regulation allowing I-601A Waivers to be filed for people while they were in the U.S., eliminating those long periods of separation.  Attorney FitzGerald advised Germán that they should request the Immigration Judge to grant him additional time to pursue this new waiver through a petition from his U.S. Citizen spouse.  The Court agreed to the extension, and as a result his permission to work and remain in the U.S. supporting his family was extended as well.  Eventually, after a period of over 4 years, it appeared that Germán’s past departure from the U.S. would again prevent him from obtaining residency through the I-601A Waiver.

As Germán’s time in the U.S.  appeared to be dwindling, there was another change to the law. The Supreme Court ruled that a Removal/Deportation proceeding that the government started with an incomplete Notice To Appear (NTA), specifically one that was missing a time and date of the initial Hearing, was defective, and would not stop a person from accruing the 10 years for the 240A(B) law (known as the “10 year law”).  Attorney FitzGerald reviewed the NTA in Germán’s case and it was defective, potentially making him finally eligible for residency.

The 10-Year Law has 4 basic requirements, having remained 10 years in the U.S. before a deportation process is properly started, having qualifying family members with Citizenship or Resident Status (Parents, Spouse or Children under 21),possessing  Good Character, and evidence that a qualifying family member would suffer an extreme and exceptionally unusual hardship from the person’s deportation.

2 of Germán’s 3 children suffered from a rare condition, Selective Mutism, and his spouse was in therapy. Germán had been the principal source of support for his family.  He worked hard, paid his taxes and received no assistance from the government, so he clearly qualified for U.S. residency under this law.

Attorney FitzGerald and his team presented all the evidence to the Court, prepared Germán and his spouse to testify, and after more the 16 years of legal proceedings, he had his trial and the Immigration Judge and the government attorney agreed that his residency should be granted.

When Germán started his journey with FitzGerald Law Company his expectations were limited, being free from custody, then obtaining permission to work, a Social Security Number, and eventually a driver’s license.  However, due to his persistence and dedication together with our unwavering commitment to do everything in our power to help our clients, he was able to achieve so much more, a family, a home, Permanent Resident status and someday soon U.S. Citizenship.