This is a study of a criminal case wherein our client was in the U.S. on a work visa and was indicted on four felony charges of aggravated assault with a deadly weapon in Nashville after an incident at his home involving his extreme intoxication and his girlfriend and her three children.
Almost any outcome other than dismissal or retirement would result in our client being deported back home to El Salvador and being separated from his family.
Additionally, each of the charges authorized a range of three to six years in prison and a $10,000 fine. Our client was from El Salvador and had legally resided here for years under an H-2B Visa with USCIS (immigration department of the federal government), which allowed him temporary status to work. He was in the process of renewing that visa when he was charged. Only certain kinds of resolutions of certain types of offenses will not negatively impact someone’s status on an H-2B Visa, and that is a very small group of case outcomes. The charges our client faced were very serious, and he was facing almost certain deportation if he pleaded guilty even to a lesser version of these charges.
Because our client was legally residing in the U.S. on a work visa, our goal was maintain his status as a legal immigrant. In order to accomplish that goal, we needed the charges to be retired or, if possible, dismissed. Any other outcome would result in our client being deported back home to El Salvador, separating him from his family.
Due to the fact that the DA’s case had evidentiary weak spots and that we were able to get the alleged victims to advocate for our client, our plan was to propose mandatory counseling for our client, which would result in retirement.
We had spoken numerous times to our client’s girlfriend, one of the alleged victims, who also spoke on behalf of her children, the other alleged victims. They only wanted our client to participate in counseling so they could all stay together as a family. Although the State is not totally obligated to the alleged victim’s wishes for an outcome in a criminal case, it is taken greatly into consideration. In addition, we believed the case was significantly overcharged. Two of the children were not in our client’s presence whatsoever during the argument that led to the charges, and although the police said a gun was in our client’s possession during this argument, our client did not own a gun nor was one found on the premises during his arrest. The plan was to use all of this information to help the DA see that all our client needed was some counseling.
Although the DA believed that there was no gun on the premises, a knife was found during our client’s arrest. The type of aggravated assault our client was charged with was “use of a deadly weapon” during an otherwise simple assault, but the specific weapon was not specified as being a gun or a knife. So there was a proof problem. Because of this, the DA wanted him to plead guilty to something, but that was not acceptable because of his immigration status and it went beyond what the family wanted.
Details of our client’s background and history in coming to this country, in combination with our close cooperation with his family, eventually persuaded the DA. “The more you know, the more you care.” The DA came around to appreciate our client’s family’s wish that he stay with them. This meant any option that would jeopardize his immigration status was off the table. However, the DA needed to see that our client would take counseling seriously, so we continued the case in order for him to voluntarily participate in counseling. If he did, then she would retire the cases. We reset the case, and our client did exactly what he needed to do. The DA was satisfied that this was the right outcome.
All four felony charges were retired for two years, and our client did not have to enter any sort of plea. His immigration status was completely unaffected and he was able to remain here with his family.
THE STAKES: Almost any outcome other than dismissal or retirement would result in our client being deported back home to El Salvador and being separating him from his family.
THE GOAL: Because our client was legally residing in the U.S. on a work visa, our goal was maintain his status as a legal immigrant. That meant we needed the charges to be retired, or if possible dismissed.
THE CHARGES:Aggravated Assault (four counts).
CHARGE CLASSIFICATIONS: Class C Felonies
RELEVANT LAWS FOR CHARGE: T.C.A. § 39-13-102
OUTCOME RESULT: All four felony charges were retired for two years, and our client did not have to enter any sort of plea.