Successes

The following is background information about some cases where Mr. Conry's clients had a good result. The appellate cases include cases where Brian represented the client before the trial court and another attorney handled the appeal and where Brian handled the appeal.

One important Board of Immigration precedent decision is in re Hadi Eslamizar 23 I&N Dec 684 BIA (2004). The BIA found that a "violation" under Oregon Law is not a conviction for immigration purposes. Since then, it's likely that this case has helped hundreds or more likely thousands of immigrants throughout the United States.

2017 Victories

Ninth circuit case (Sandoval) finding Oregon Delivery of a Controlled Substance offense is not an aggravated felony. Oregon defines delivery to include solicitation as revealed through the Model Penal code which Oregon adopted into its definition of what constitutes "attempt". Oregon case law includes cases where solicitation even without possession of the controlled substance is sufficient as a matter of law to constitute delivery. Oregon delivery includes attempted delivery. The underlying controlled substance was heroin. The Ninth circuit has held that solicitation is not delivery (insufficient to prove delivery). No match. Indivisible.

Accordingly, this legal permanent resident can proceed with his cancellation of removal claim as he remains deport-able on the controlled substance conviction allegation. He has lead a good life other than this conviction so the prognosis for a grant of cancellation is favorable.

2016, More recent litigation reports

A 2015 Washington Personal Restraint Petition victory which began with a shrill protest from former criminal defense counsel of "how could you file a PCR petition against me?" A self-righteous, criminal defense counsel bar filed a complaint against me for demanding a copy of her file, assuring me that she had performed "perfectly." Furthermore, she falsely accused me of preying on poor immigrants who are desperate for help.

After I filed a bar complaint against former defense counsel, WSBA then ordered that she produce the file some months after the file had originally been requested.

Review of the file proved that former counsel had obtained immigration advice as to the consequences of a theft conviction, but had not obtained advice as to the immigration consequences of a welfare fraud conviction. Former counsel had obtained the immigration advice from an immigration firm which had not reviewed the court documents but had simply answered the questions of counsel, namely, "what are the immigration consequences of a theft conviction?" among other questions. Client had been convicted of welfare fraud, not theft, and as a consequence had been ordered deported. Oops.

Prosecutor than exercised his discretion and dismissed all charges against the defendant.

Order Vacating Unconstitutionally Obtained Conviction

Some 2016 Victories

Criminal/Immigration Nexus News
False Claims of Sex Abuse and the U and VAWA visas

This post is long but hopefully informative and helpful in future cases defending against false claims of sex abuse brought to obtain legal status in the United States.

Vawa is the Violence Against Women Act. I was unaware that an "alien" can obtain a vawa grant with no supporting police reports on a completely fraudulent claim until trial on this M11 matter. The "abuser" is not given notice of the claim and is not contacted by the parties to the "confidential" proceeding.

The State's subpoena of immigration counsel of immigration records led to discovery on the first day of a seven day trial of a granted vawa application by complainant's mother who had testified she had obtained her papers through family visa processing because her US citizenship child was under seven years of age. That false claim was unchallenged in the first two trials and was repeated at this third trial. Her testimony was clear perjury.

We also knew one of the complainants had obtained a U based on her testimony at the first two trials by the time of the third trial. The U application for certification has immigration counsel's name thereon. Her U application also had a sworn, under penalty of perjury false claim, to the immigration authorities that the complainant had never been arrested for a crime she did not commit despite her admission of heroin use at trial. She could not reasonably explain her lie to the immigration authorities, although she tried to say heroin possession is not a crime and or that she did not understand the question so just marked no...

Records also disclosed a alleged fear by the family of current death threats in Mexico against a family member by an ex husband who had allegedly abused the family before they escaped to the US.

Historically, there had been a hung jury, a guilty based on incomplete evidence, perjury by State's witnesses and evidentiary error, reversal on appeal by the Court of Appeals due to said evidentiary error (Bautista 2015 case) and then this third trial.

The defense was fortunate in that we had transcripts of two prior trials to study/use to impeach four States witnesses. Two "victim" sisters...the second accuser and older sister accused defendant of sexual abuse just several months before the second trial, although she had made statements diametrically opposed to that accusation during the first two trials and during the investigation of her sister's complaint. She had stated/testified the defendant had abused no one but her sister.

Their brother had also obtained a vawa grant (which means he became a legal permanent resident) based on a false claim of assault(s) by a drunken step father who would also make him fight his other brother for his drunken step dad. No police reports corroborated these lies.
The defendant rarely if ever drinks as attested to by several defense witnesses and at least one States witness.

Defense theory: perjurious mother taught the children how to lie for papers and that this is a smart, clever thing to do. Mom is a us citizen presently.

Alternate theory: at some point, proven liars cannot present reliable testimony.

Defendant had spent approx five years in prison before the judge acquitted of all remaining M11 counts. One count had not survived the presentation of the state's case and was dismissed by the trial court on the State's motion, two other counts were reduced to attempted abuse charges on the State's motion at the close of the state's case.

The State had also obtained Tacoma detention center phone calls over a month time frame as another brother was in the lock up there and provided said statements to the defense. How could the defense obtain such phone calls independently?

There is something seriously wrong with the disconnect between immigration and criminal proceedings and the almost in camera nature of a vawa proceeding. There is something wrong with the inability to access immigration records where the defendant has been accused falsely of prior crimes by state's witnesses if the name of immigration counsel is unknown and or if the U visa applicant holds off on the U visa U certification request until after trial so as to not generate a document that can be used to impeach and that is discoverable.

I had the assistance of Dan Larsson, an immigration practitioner, who testified generally about the vawa and U visas. He could tell the mother had received a vawa grant based on her lpr card classification code that memorializes how an immigrant becomes an lpr and about other pertinent matters. There are ten thousand U visas granted a year. I also had needed help from Karen Graham a tireless defense investigator and Guillermo Chamorro with the defense presentation.
Brian Conry

Some 2014 Victories

Appeal Sustained
Appeal sustained by BIA of adjustment of status of legal permanent resident convicted of an aggravated felony, attempted sexual abuse in the first degree. Conviction within the petty offense exception, after C felony reduced to a misdemeanor in Circuit court's discretion under Oregon law.
Decision

Legal Permanent Resident (in the US since the age of 3) wins the battle and wins the war!

Washington County Court, Hillsboro, OR and Immigration Court, Tacoma, WA.

Client (LPR who arrived in the US at the age of 3) had his PCR (Post-Conviction Relief) case granted in 2013 after he was sentenced to over a year in custody on a burglary conviction. The one year sentence made the burglary an aggravated felony under the immigration law and meant that this young man was required by the immigration laws to be deported forever. Now, of course, he was not told that would happen when he entered his plea to the burglary charge, but only that it was possible that he would be deported. The crime had been committed when he was 16 but it was prosecuted in adult court. Client was also charged with a robbery in the first degree which carries a 90 month mandatory minimum and the plea "bargain" was for 36 months with a "second look."

Client was released from juvenile custody after 21 months on the "second look" and placed on supervision but then immigration arrested him and detained him for a year in Tacoma. He was released from immigration custody after the PCR case was granted because criminal defense counsel had not advised that deportation was a certainty based on his burglary conviction with a sentence of a year or more (an aggravated felony under immigration law), despite apparently too brief of a consultation with an immigration lawyer. The state did not appeal from the post-conviction relief grant.

After the PCR grant, client was again facing 90 months if he was convicted of the robbery charge. When you win a post-conviction relief case, the prosecutor brings the original charges over again. This time, the client pled to three crimes of moral turpitude and zero aggravated felonies. He received credit for time served on the original flawed conviction. He served no additional jail time. The three new convictions are a part of the "same scheme" and will count as one conviction for immigration purposes. Client has more than 5 years as an LPR so he is not deportable. He is free on probation with the opportunity to live in USA for the rest of his life. He does not need to dodge the cartels in Mexico, if that is even possible.

Client had more to lose by not fighting the robbery charge and entering a plea to burglary with over a one year sentence, even though he was facing 90 months on the robbery. The "surprise" clear deportation consequence required by his initial plea has happened far too many times to far too many people. In Mexico, the client would have been a target of the drug cartels and would have faced an extremely serious risk of being kidnapped and/or killed by these extremely bad actors.

Legal Permanent Resident Eligible for Petty Offense Exception: Motion to Reconsider Granted
Immigration Court, Portland, OR

Legal permanent resident (LPR) since 2002 was charged as an arriving alien who is inadmissible based on his conviction for a crime involving moral turpitude (CIMT): Assault IV and Strangulation constituting domestic violence. Counsel filed a motion to terminate proceedings for client because his convictions stem from the same incident and the assault conviction is not a CIMT; therefore he is eligible for the petty offense exception. The Immigration court denied client's motion to terminate proceedings because the LPR "had more than one crime (failure to perform duties of a driver)." A motion to reconsider the decision was filed because the failure to perform duties of a driver (hit and run) is neither an inadmissible nor a deportable conviction, nor is it a CIMT. The court granted the motion to reconsider and terminated proceedings against the LPR.
Order Granting Motion to Reconsider

General Judgment: Circuit Court Case
Douglas County Court, Roseburg, OR

Recently, a client who was arrested by law enforcement with a pound of heroin allegedly in his possession was allowed to plea to unspecified possession of a controlled substance in Schedule 1. This resulted in a conviction that is neither inadmissible nor deportable under the immigration laws.
PCR and PCS Judgments

Convention Against Torture Win and Mexico Country Conditions
Immigration Court, Tacoma, WA

A client with a criminal record and prior deportation orders is granted Convention against Torture relief from deportation. Respondent was a victim of kidnapping in Mexico. Police had a role in his kidnapping and the threats of death he received from the Transnational Criminal Organization after he escaped his kidnappers.

Since 2006, the death toll in Mexico associated with drug and crime related violence exceeds 70,000 and may be at 80,000. Kidnapping represents an extreme danger, especially for Americanized deportees. It is impossible to ascertain with certainty the actual number of kidnappings, as this crime is under reported, but at least tens of thousands are kidnapped annually. The Council for Law and Human Rights cited a total figure of 17, 889 during 2011. However, the National Observatory of Citizen Security, Justice and Legality believe the actual number of abductions may be ten to fifteen times higher.

Naturalization Win
U.S. Citizenship and Immigration Services, Portland, OR

Client previously convicted of one count of Felony Attempted Theft, Six counts of Forgery and three counts of Identity Theft which were outside of the five-year period preceding the date of the filing his application for naturalization, was granted naturalization. Applicant, for the five years immediately preceding the date of filing his application for naturalization has been, and still is, a person of good moral character.

Applicant's most recent conviction fell within the "single scheme" doctrine under which immigration law treats what appears to be multiple prior convictions as a single crime of moral turpitude, and as a single conviction for immigration purposes.

Counsel submitted on behalf of the applicant that he had reformed his character from an earlier period, and that his earlier conduct is not relevant to a determination of his present moral character.

Santa Maria-Ames v. INS, 104 F.3d 1127, 1132 (9th Cir. 1996) states an application for naturalization "cannot be denied based solely on his prior criminal record."

Matter of Islam, 25 I&N Dec. 637 (BIA 2011) held that "(1) In determining whether an alien's convictions for two or more crimes involving moral turpitude arose out of a "single scheme of criminal misconduct" within the meaning of section 237(a)(2)(A)(ii) of the INA, the Board will uniformly apply its interpretation of that phrase in all circuits. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), followed."

Also see United States v. Hovsepian, 422 F.3d 883 (2005) where the court states that the naturalization statutes contemplate rehabilitation, and that Congress had not erected a legislative doctrine of "predestination" and "eternal damnation."

Some 2013 Victories

General Judgment - Circuit Court Case
Washington county Court, Hillsboro, OR

PCR grant in Oregon where the PCR judge made factual findings that make the likelihood of the PCR grant being upheld on an appeal, should the state appeal, almost ironclad. Also, underlying the case is Oregon accomplice liability law which requires in the context of an enhanced Burglary sentence, that threats to the victim be made personally by the defendant and not by an accomplice.

Oregon has also seen fit to reject the natural and probable consequence jury instruction that for years had resulted in convictions of defendants present at a crime scene but hardly zealously participating therein.

Criminal defense counsel admitted not knowing that the sentence imposed determines the immigration consequence on an aggravated felony burglary; mistakenly thinking the A felony nature of the Burglary conviction was determinative of the immigration consequence.

Supplemental Exhibit for Motion to Terminate Proceedings and Judgment

Some 2012 Victories

General Judgment: Circuit Court Case
Washington County Court, Hillsboro, OR

A Padilla win on a case filed outside the Oregon general two year statute of limitations but found to be within Oregon's escape valve for pcr (post conviction relief) filings.

Court found Padilla is not a new rule but an application of Strickland and court was "shocked" counsel did not ask client if he was a US citizen or a permanent resident of the US.

Counsel mistakenly assumed client was US citizen. Client actually entered USA at the age of three. Counsel was sure he told client if he is not a US citizen he could be deported. Counsel always does this when reviewing a plea petition with anyone. DDA said pre Padilla that was good enough. Not good enough says the Court.
Click here to view

Some 2011 Victories

Washington County Court, Hillsboro, OR
State of Oregon, Washington County, statute of limitations tolls to permit Post-Conviction Relief claim filed approximately eight months after the statute of limitations would have otherwise run. Judge's Decision on Motion to Dismiss

State of Washington Case
Clark County Court, Vancouver, WA

On November 27, 2011, a Motion to vacate judgment was granted in Vancouver Washington, due to counsel's failure to advise his immigrant client of his required deportation following his plea to Communication With A Minor for an Immoral Purpose. This client was later allowed to plea to a non-deportable offense and maintain his LPR status in the United States. Order Vacating Conviction

VAWA For Abused Husband
U.S. Citizenship and Immigration Services, Portland, OR

A one-time undocumented, former criminal defendant facing Measure 11 charges becomes a legal permanent resident. He had brought a VAWA (Violence Against Women Act) claim for legal status in the United States. His former abusive spouse was a US citizen. The VAWA submission was approved by the immigration authorities and he has now become a permanent resident of the United States. LPR Status Approval

Kilogram Conviction Reversed
State of Washington Court of Appeals, Spokane, WA

Drug delivery conviction reversed due to failure of criminal defense counsel to give accurate immigration advice in a Washington criminal case where nearly a kilogram of cocaine was seized by law enforcement from the defendant's garage. State of Washington v. Martinez, II

Right to a Second PCR
State of Oregon Court of Appeals, Salem, OR
Client earns right to a second, competent PCR (Post-conviction relief) proceeding following the denial of PCR in a case where prior PCR counsel was inadequate. Malheur County Circuit Court 07045812P A140782

Some 2010 Victories

Murder Conviction Reversed
State of Oregon Supreme Court, Salem, OR

Brian Conry handled the murder case on appeal. The Oregon Supreme Court decided the judgment of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. The evidence against Salas-Juarez was not overwhelming and there was evidence in the record to support Salas-Juarez's theory that Russell was the actual perpetrator of the murder, and, for those reasons, evidence of Russell's statement might have tipped the balance toward reasonable doubt as to defendant's guilt. Russell's statement about "slashing" the man at the bar was relevant to show Russell's angry and violence-prone state of mind just prior to the brawl and was admissible under OEC404(3). Opinion

Armed Career Criminal - Federal Sentence Reduced
Ninth Circuit court, Seattle, WA

Ninth Circuit Appellate Win (sentencing issue). Mr. Brian Conry represented the Defendant at the District Court level, and Mr. Michael Levine represented won the case on appeal based upon an argument that was preserved by Mr. Conry at the District Court level. The Ninth Circuit Court vacated the sentence and remanded it to the District Court. The Defendant's sentence was reduced from 180 months to 60 months. 9th Circuit Memorandum Judgment USM Number 69518-065

General Judgment - Circuit Court Case
Linn County Court, Albany OR
Immigration Court, Tacoma, WA

Mexican national convicted of an "aggravated felony", Delivery of a Controlled Substance, was not advised as required by his criminal defense counsel that this conviction would legally require his banishment from the United States. Conviction vacated and client released from custody at the NW Detention center due to the ineffective assistance of counsel. Client's legal permanent resident status is intact. Decision Letter

Measure 11 Dismissals
Multnomah county Court, Portland, OR
In two recent cases, this law firm has successfully defended Measure 11 charges where immigrants were in custody with immigration detainers on them. Each of these clients is now free.

In one case, the client was charged with unlawful sexual penetration, a charge that carries under Measure 11 a mandatory minimum sentence of 100 months in prison. The resolution was a plea to a non-deportable offense and a sentence of 179 days jail. We hope and anticipate that this client may well be able to become a legal permanent resident of the United States in the future.

This client referred his cellmate to us. The cellmate was charged with several counts of Sexual Abuse. His former attorney had recommended that he plea to a "plea offer" of 100 months because he might do much worse if he were to go to trial and be convicted. The opinion was that he would have little or no chance to win at jury trial. The charges he faced were Measure 11 charges. After a thorough investigation by a Spanish-speaking investigator and hard negotiations, this case was dismissed.

The Return of the Unlawfully Deported
Marion county Court, Salem, OR
In July 2007, the immigration court granted a Motion to Reopen proceedings following the successful post-conviction of an "aggravated felony" conviction on behalf of an immigrant. Subsequently, the immigrant who had been a Legal Permanent Resident was allowed to re-enter the United States in that Legal Permanent Resident Status which had been rescinded before the Motion to Reopen was restored. The immigrant had been deported out of the United States. At this time, the immigrant is back in the United States and living in Oregon. This was a particularly satisfying win as the post-conviction relief case was filed more than two years after the judgment order but that claim was allowed to proceed as an exception to the Oregon Statute of Limitations laws for two years on post-conviction cases.

Also, many believed that one would be unable to have an immigrant returned back to the United States after a post-conviction relief case had vacated a prior conviction if the immigrant had been deported from the United States. This proves that that line of thinking was mistaken. See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990). The Ninth Circuit affirmed the continuing vitality of Wiedersperg in Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006).

The following lists some of the cases where Mr. Conry's client prevailed on appeal where Mr. Conry represented the client in either the trial court, the appellate court, or before both courts. Mr. Conry has been victorious in numerous courts over many years.

Updated cases to be added soon.

Board of Immigration Appeal
Hoguer Montano-Diaz (2006) The Board of Immigration Appeals reversed deportation order and terminated deportation proceeding. BIA representation by Mark Kinzler an associate attorney with Brian Conry.

State of Oregon: Oregon Court of Appeals, Salem, OR
State of Oregon v Gonzalez-Galindo (bad stop, conviction overturned) 146 Or.App. 291, 932 P.2d 118 (1997) (marijuana grow, drugs suppressed, case dismissed) 159 Or.App. 34, 977 P.2d 1175 (1997)

State of Oregon v Ordonez-Villaneuva (inadmissible evidence allowed before jury, conviction reversed and case remanded) 138 Or.App. 236, 908 P.2d 333 (1996)

Federal District Court Oregon
U.S. District Court (2008) USA v. Aduka Order on Motion to Dismiss. Federal habeas win due to inadequate assistance on immigration consequences of federal conviction.

USA v Jude Elebe Aduka Federal habeas corpus (2005) win (vacating federal felony conviction).

United States Court of Appeals: Ninth Circuit court
Snakeheads Lose a Slave
Zheng v. Ashcroft 89 Fed. App. 76 (2004) (reversal of deportation order saving alien from likely death at the hands of the snake heads, a human trafficking criminal organization in China.

US vs. Vea-Gonzales Collateral Attack (reduced sentence) 986 F.2d 321 (1993) 986 F.2d 321 amended by 999 F.2d 1326 (1993)

US vs. Shell 96 Speedy Trial Win (dismissal) 961 F2d 138 (9th Cir. 1992), also see 974 F.2d 1035 (9th Cir. 1992)

The following links provide some pleadings and decisions from deportation defense and Post Conviction Relief that may be helpful.

EOIR: IMMIGRATION COURT, PORTLAND, OR

CANCELLATION OF REMOVAL WIN: On March 8, 2002 Judge Bennett opinion "entered without inspection" Hispanic female from Mexico allowed to remain in the United States after she was discovered by the INS here "illegally". She is now "legal" has green card, etc.

State of Oregon Circuit Courts
Hood River County (2006) Post Conviction Relief
Clackamas County (2005)
Malheur County (2005)
Multnomah County (2004)
Washington County (2001)
Washington County (2000)