CALENDER WINS FREEDOM FOR MAN FACING DEPORTATION, FIREARM CHARGES

Court: Immigration Court, Newark, New Jersey
Parties: U.S. Department of Homeland Security v. Denton M., respondent

The future looked anything but bright for the client, a 20-something year old resident of Queens, New York. He was a Green Card holder residing in the U.S. since migrating from Jamaica, W.I. at the age of eight. He was arrested and indicted on Felony drug possession charges. In exchange for the District Attorney’s offer of no jail time, he pleaded guilty to a Felony which subjected him to automatic, mandatory deportation under the Immigration and Nationality Act, Section 237(a)(2)(B)(i). The attorney who represented him in the criminal case did not alert him of the deportation consequences of the guilty plea. He was sentenced to five years’ probation.

Shortly after his probationary period ended, Denton M. was again arrested. This time he was charged with several Felony counts, including possession of a loaded firearm and possession of marijuana. While he was being processed on this arrest, it was discovered that the Felony drug conviction for which he had just completed probation subjected him to deportation. The U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) took him from Criminal Court jail and held him in Federal custody in deportation proceedings.

This was when attorney David Calender entered the picture. He made an application for the client to be transferred back to Criminal Court to face the firearm/marijuana charges. There, using his courtroom experience and his knowledge of the substantive criminal law and rules of evidence, Mr. Calender was able to convince the Criminal Court that the circumstances surrounding the arresting officer’s search of his client when the loaded firearm was recovered was an unconstitutional violation of his Fourth Amendment rights and therefore an illegal search. He accomplished this by filing a motion for a Suppression Hearing and, after cross-examining the police officers involved in the search and arrest, he made submissions that based on the testimony of the officers under cross-examination, the weapon recovered from the search should be suppressed (excluded from the case at trial) as the product of an illegal search. His submissions were upheld by the court. The firearm was excluded from evidence and the entire case against his client was subsequently dismissed.

After dismissal of the firearm/marijuana case, Denton M. was taken back into ICE custody to face deportation proceedings on the previous Felony drug charge to which he had pleaded guilty and had done five years’ probation. After many motions, proceedings and hearings which included testimony from the client’s relatives and others, Mr. Calender succeeded in convincing the Immigration Judge, Leo A. Finston, III, to cancel Denton M.’s removal from the United States. After almost two years in Federal detention, haunted every day by the prospect of “automatic, mandatory deportation,” Denton M. was ordered released on January 23, 2014 and is now living and working in Queens, New York. His application for U.S. Citizenship is pending. Case closed!