Mr. Rodriguez, along with his friends and brother, was socializing in the high school cafeteria when several gang members approached and threatened to brutally harm them if they did not obey orders. Mr. Rodriguez and his group disregarded the threats and walked away.

Several days later, outside the school, the gang members attacked Mr. Rodriguez, his brother, and a friend. They were outnumbered. Mr. Rodriguez’s brother was on the ground being brutally beaten. As one gang member pulled out a knife, Mr. Rodriguez’s friend handed him a knife to prevent the possibility of his brother being stabbed. Acting in self-defense and in defense of a third party, Mr. Rodriguez stabbed one gang member, seriously wounding him.

As a result, he was charged with aggravated assault in the first degree and possession of a weapon. His counsel at the time chose to go to trial on grounds of self-defense. The jury returned a guilty verdict, and Mr. Rodriguez was sentenced to five years in prison. At sentencing, his counsel asked the criminal court judge to sentence him as a Youthful Offender (YO), which for immigration purposes would render him non-deportable. The judge denied the request and sentenced him as an adult.

After serving his prison term, Mr. Rodriguez was detained by immigration authorities and placed in removal proceedings because his conviction constituted an aggravated felony for immigration purposes, making him 100% deportable.

Attorney Davar Yusufi was retained. Upon reviewing the record, Mr. Yusufi noted that because the case went to trial, it was unlikely that the criminal conviction could be vacated or reopened. Most attorneys would have advised there was nothing to be done and that deportation was certain.

However, Mr. Yusufi and his associates discovered that although previous counsel had requested a YO sentence, he had never raised Mr. Rodriguez’s mental illness—Bipolar Disorder—as a mitigating factor. Additionally, after Mr. Rodriguez’s arrest, a new law in New York State (an executive bill) was enacted allowing defendants who were sentenced as adults but arrested before the age of 18 to be resentenced as YOs.

Under immigration law, however, resentencing under the executive bill is generally considered a collateral attack, meaning it does not erase the conviction for immigration purposes. This often results in denial of relief from deportation. The key was to have Mr. Rodriguez resentenced as an original Youthful Offender, not under the executive bill.

In criminal court briefing in New York County, Mr. Yusufi argued that, because of Mr. Rodriguez’s mental condition, he should have been adjudicated as a YO at the trial level. After a year of litigation and negotiations, the New York County District Attorney’s Office agreed.

While the criminal case was pending, the immigration judge at Varick Street ordered Mr. Rodriguez removed, holding that the pending criminal resentencing was only a collateral attack and not recognized as relief from deportation. Mr. Yusufi appealed to the Board of Immigration Appeals (BIA), but the BIA agreed with the immigration judge.

Despite the final removal order, the New York County prosecutors consented to resentence Mr. Rodriguez as a Youthful Offender. The presiding criminal court judge resentenced him as a YO, explicitly adopting Mr. Yusufi’s argument that Mr. Rodriguez acted out of impulse, not with intent to cause harm, and recognizing his mental condition as a mitigating factor.