Immigration Custody and Immigration Court Success Story and Assault and Battery Criminal Case
Roberto was arrested and charged with numerous charges, including assault and battery with a dangerous weapon, trespassing, and resisting arrest; after there was a fight outside a bar. Unfortunately, at the time he was arrested, Roberto was not in lawful immigrant status and after he was released on bail on the criminal case, the immigration authorities took him into custody. His family came to our office after he had been detained for several months and it became clear that the only way to get him released from jail was to have him found not guilty of the criminal charges and to identify an immigration benefit he could qualify for.
Attorney FitzGerald reviewed the police reports and met with Roberto in jail to discuss the incident. Roberto was not a tall individual and was relatively thin. In contrast, the victim was identified by Roberto and the police report as a big and heavy set man. Roberto claimed that he had actually been the victim of an assault by the larger man and he had escaped the fight and which is why he was found running away from the police on someone else’s property.
We prepared Roberto to testify at trial and we advised him that if he married his fiancée, who was a US citizen, and she filed an immigration residency petition for him, as her husband, he may be able to be released from immigration custody, if we won the criminal case. There was one significant problem. The rules in Massachusetts make it virtually impossible for an inmate to get married due to prison security concerns. Therefore, we determined the only place where this marriage ceremony might be performed was at court during the criminal trial. At our suggestion, Roberto’s fiancée obtained a marriage license and made arrangements for a justice of the peace to come to the court house during the trial.
The criminal trial began and the government’s witness/ alleged victim testified first. The alleged victim made statements during the trial that were markedly different than the statements he had made to the police originally. When attorney FitzGerald was cross examining the alleged victim, he stated that Roberto had knocked him down with a punch and then proceeded to kick his face with his boot 20 to 30 times. The police report however, contained no description of any mark on injury to the alleged victim’s face and when asked by attorney FitzGerald, the witness could not explain how it was possible that he did not receive any visible injury from such a violent assault. At the conclusion of his testimony, it was clear that the witness was not the victim he claimed to be.
After the alleged victim’s testimony, the court took a lunch recess and during this time the marriage ceremony between Roberto and his fiancée was performed. By the time the court came back into session, Roberto was a married man to a US citizen and now he was eligible to apply for US residency via his US citizen wife. Roberto testified as to his version of the incident and after attorney FitzGerald’s closing remarks, the jury found him not guilty. After we provided the immigration court the evidence of Roberto’s marriage to a US citizen he was released and allowed to return to his family.