Jockey Stewart Elliott Granted Waiver

According to an article by the Thoroughbred Times, Immigration Judge Henry Dogin in Newark, New Jersey granted a waiver of deportation to jockey Stewart Elliott.

Stewart Elliott is a world-famous horse racing jockey who was the regular jockey of dual classic winner Smarty Jones. According to the article, Mr. Elliott was convicted in 2001 of aggravated assault for beating his friend with a beer bottle, pool cue, and wooden stool. Because of the amazingly broad definition given by Congress to what constitutes an aggravated felony, Mr. Elliott was convicted of what Judge Dogin ruled was an aggravated felony, which drastically limited his ability to avoid deportation.

In a highly controversial move, Congress in 1996 chose to limit drastically the ways a hard-working immigrant can avoid deportation if he or she is guilty of an aggravated felony. Before 1996, it was difficult but not impossible for a hard-working, tax-paying, well-respected member of society to escape deportation based on an evaluation of an immigration judge. After 1996, people are shocked to find out that it is extremely difficult and in some situations impossible to escape deportation even for those who can prove they regret their crime, are completely rehabilitated, and are now leaders of their communities.

In Mr. Elliott's case, the article suggests that he did not even spend a day in jail for his crime (receiving probation instead). Congress's controversial 1996 decision was to march thousands of immigrants toward deportation based on crimes that a criminal judge ruled did not even deserve a single day in jail. Despite many well-reasoned criticisms, Congress has not chosen to take a step back from its controversial 1996 law. In fact, there have been proposals to make it even harder to qualify for a waiver from deportation.

The article does not make clear whether the waiver was based on cancellation of removal for green card holders, section 212(c) relief (which Congress has tried to limit to those who pled guilty before approximately 1997), or section 212(h) relief for extreme hardship to a family member. These forms of relief are very complicated so you should get a consultation with a lawyer or accredited non-profit immigration assistance agency if you have a similar question.

Attorneys litigating these types of cases should consider raising the argument that a green-card holder (LPR or legal permanent resident) returning from a trip overseas should not be considered someone who left the US and seeks readmission from square one if the trip was just a fleeting trip outside the US. This doctrine was discussed in the Fleuti case and can be raised and preserved for appeal in these types of cases. In the Third Circuit, though, you need to point out that there currently is an adverse decision in a case titled Tineo. However, perhaps one day we can convince the Third Circuit to change its mind on this important issue.