NON DEPORTABLE DISPOSITION IN SERIOUS ASSAULT CASE

EU, a 19 year old resident alien from Albania, lives in Peabody with his parents and two brothers. His mother was apparently having an affair with a 31 year old man. EU’s father was very angry with his wife and the man with whom she was having an affair. EU found his Mother’s apparent boyfriend and in full view of a security camera at a local YMCA EU proceeded to beat up the apparent boyfriend leaving the boyfriend bleeding profusely from the head. People inside the Y saw the beating and called the police. EU fled the scene before the police arrived. EU was known to the people at the Y and he was quickly identified by the police. EU was charged with Assault and Battery.

EU’s father consulted with and retained Attorney Robert Lewin from North Andover to represent EU. The biggest problem that EU faced is that Assault & Battery is a deportable offense. EU is NOT a citizen and in this climate having a criminal conviction for Assault & Battery can lead directly to deportation, exclusion from admission to the country if you leave, and denial of citizenship. Attorney Lewin explained the Federal Deportation law in detail to EU and his father and explained the real risk that EU was facing if he were found guilty. Even a continuance without a finding followed by a dismissal is a deportable disposition. The Federal Government treats a continuance without a finding the same as a guilty finding.

The video was terrible as it showed EU (and another man) attacking the victim. In addition the police took photos of the victim and the photos showed the cuts to his head and the blood all over his face and clothing.

Attorney Lewin met with the Assistant District Attorney at Peabody District Court. Attorney Lewin explained to the District Attorney that a guilty finding or even a continuance of the case without a finding would leave EU exposed to being deported (back to a country he left when he was one year old).

If a criminal case is outright dismissed or if a criminal case is disposed of by means of “pre-trial probation” then there are NO deportation consequences. “Pre-trial probation” is not a continuance without a finding. The big difference between a continuance without a finding and pre-trial probation is that a continuance without a finding requires an admission of guilt or an admission to sufficient facts to warrant a finding of guilt; with pre-trial  probation there is no admission of guilt and there is no admission of sufficient facts to warrant a finding of guilt.

EU’s case was scheduled for pre-trial hearing in Peabody District Court on January 18, 2018. Shortly before that date Attorney Lewin learned that the mother’s boyfriend had been charged in Lynn District Court with Indecent Assault & Battery. That is a sex offense and can be quite serious.

On January 18, 2018 EU and Attorney Lewin appeared in Peabody District Court. After further discussion with the District Attorney the DA agreed to place EU on pre-trial probation for 18 months with the condition that he complete an anger management program. EU accepted this proposal. The Judge accepted the proposal as well and continued EU’s case for 18 months. EU has to complete an anger management program and he has to stay away from the victim. In 18 months the case will be dismissed.

Attorney Lewin explained the significance of this disposition to EU and his father:

  • EU’s plea of NOT guilty remains in full force and effect
  • There was NO change of plea.
  • There was NO admission of guilt or wrongdoing.
  • There was NO admission to sufficient facts to warrant a finding of guilt.
  • There was NO finding of guilt or wrongdoing.
  • There was NO finding of sufficient facts to warrant a finding of guilt.
  • In 18 months the case will be DISMISSED.
  • Most importantly, because there was no finding or admission of guilt or sufficient facts this was a NON-Deportable Disposition.

In light of the viciousness of the attack, the resultant injuries, and the fact that the attack was all captured on video the result was a terrific result. EU and his father left Peabody District Court very happy. The burden of deportation of this 19 year old who had been in the US since age 1 had been lifted.