A Guyanese man living legally in the US who was ordered to leave the country by an immigration court following three convictions has won a reprieve following a decision by a US Appeals Court.
The Appeal Court overturned the decision and ordered that the case be retried because the lower court among other things had relied on unproven and disputed allegations in making its decision.
Justice Jed S. Rakoff on February 19 last in his ruling said that Andrew Aswald Padmore demonstrated that the Board of Immigration Appeals (BIA) improperly found facts which it held to be “significant” and “important to its decision denying him relief and as such “remanding [the case] to the agency would not be futile. Remand is therefore required.”
According to the court documents Padmore entered the US in 1989 as a lawful permanent resident but since his arrival he has been arrested on three occasions. In 1996 he was arrested and charged with selling marijuana to an undercover police officer and he pled guilty to criminal possession of marijuana in the fifth degree in violation of New York Penal Law.
At the trial that led to his first conviction Padmore had testified before the immigration judge that he was arrested while attempting to “purchase some marijuana for [his] own use.”
In 2001, Padmore was arrested again and charged with criminal possession of marijuana, more than four ounces of cocaine, drug paraphernalia, and a loaded 45-calibre firearm. In 2002, in satisfaction of the charges he pled guilty to criminal possession of a controlled substance in the fifth degree. The documents said that before the immigration judge he testified he had never used cocaine, had not possessed a weapon and was arrested based on a mistaken identification.
He explained that at the time of his second arrest he was in another person’s house and was not aware of “what was in the guy’s house.”
Padmore was arrested again in 2007 for violating conditions of his probation. The arrest was triggered by his visit to the house of the mother of his two eldest children. When Padmore appeared before a state court judge, the judge suspected that he was using illegal drugs.
However, the charges were dismissed without prejudice and he later told the immigration judge during his deportation hearing that his behaviour during that court proceeding was attributed to high blood pressure.
In June 2007 he was issued with a notice to appear before a court for removal and during the hearing he admitted to all the allegations, except the 2002 conviction for criminal possession of cocaine. Padmore refused to admit that he was convicted on possession of cocaine and the immigration judge relied on the conviction document of record, which is a printout from an unidentified database maintained by the New Your State Division of Criminal Justice Services. It was based on the two convictions the judge concluded that Padmore was removable as charged. However, the man applied for cancellation of removal which the immigration judge granted since he deemed Padmore statutorily eligible for relief and determined that he warranted an affirmative exercise of discretion.
This decision was appealed by the Board of Immigrations Appeal (BIA) and the immigration judge’s decision was overturned and Padmore then appealed.
The case will now have to be heard again.
