Can my 21 year old daughter petition to immigrate me before I get out of jail?

Question: Attorney, I am in jail for 40 months for reentering the United States after deportation. My release date is September 2011. Can my 21year old daughter petition to immigrate me before I get out of jail? I used to have a green card, but it was taken away from me when I was convicted of possession of heroin. --Javier

Answer:

Dear Javier,

Yes, your 21year old United States citizen daughter can file a petition to immigrate you even before you are released from jail. However, you have other problems. The Immigration law is very strict on those who have a drug offense. The only exception is one conviction for simple possession of less than thirty grams of marihuana. Two marihuana convictions and you are forever barred. And, of course, a heroin conviction will also bar you forever from immigrating to the United States. Your adult U. S. citizen daughter can petition for you, but in order for you to immigrate you are going to have to go back to the court where you were found guilty for possession of heroin, withdraw your guilty plea, ask for a new trial, and be found innocent of the charges. With a heroin conviction on your record you cannot immigrate to United States.

Another problem in your case is that you have returned unlawfully to the United States after deportation. The Immigration law says those who accumulate one year of unlawful presence in the United States after April 1, 1997, then leave the US and return unlawfully, are barred from immigrating for ten years. The same holds true for those who are deported from the United States and then return unlawfully. Therefore, by returning unlawfully you are barred from the United States for ten years. If you leave the United States immediately upon being released from federal prison on September 2011, when you have accumulated ten years in Mexico, that is, in September of 2021, you can apply to return legally to the United States. In the meantime, you should see if there is some way to get your criminal conviction set aside. We have had some success in my office getting these convictions set aside by arguing that when the defendant pled guilty to the crime, he did not realize that it would have such serious immigration consequences.

Good luck and God bless you and your family.

Joseph B. De Mott