I practice law in a small town (20,000). In the past 18 months, I’ve represented two Legal Permanent Residents (LPR’s) who came to me after they plead guilty to minor offenses, were placed on probation, and shocked when immigration agents arrested them and locked them up pending deportation.
One was a 20 year old woman, born in Mexico, who moved to this country with her parents when she was six months old. She was put on probation and deferred adjudication when she pled guilty to using a fake driver’s license. Immigration Customs Enforcement agents arrested her, and took her to the detention center in Pearsall, a hundred miles from home, and ICE started the process of expelling her from the US.
The other case involves a 38 year old man who has lived in this country since he was two years old. He was arrested for unlawful possession of a firearm, a .380 semi-auto pistol. Neither of these people had any criminal history. This gentleman also got probation and deferred adjudication. Two weeks later, he was snatched up by INS when he stepped out of his car to go to work.
The nightmare for both these people started when their lawyers failed to advise them that the offenses to which they were pleading guilty were grounds for automatic removal from this country, under the federal immigration laws (8 U.S.C. 1227(a).
In the young woman’s case, the DA had some compassion and allowed her to withdraw her plea, and enter a new plea to something that wouldn’t result in deportation. In the second case, the prosecutor is more of a John Calvin/Ayotollah type, who sees the world in black and white. You do the crime, you pay the consequences. I have filed for habeas corpus relief and believe that we will prevail, but meanwhile my client sits in a detention center in the middle of nowhere.
Lessons Learned/Practical Advice:
If you are a non-citizen, do not plead guilty or no contest to anything until you know the immigration consequences. A seemingly minor offense, even theft by check, misdemeanor possession of marijuana, or of a firearm, may be grounds for removal. Your lawyer should give you competent advice, but not all of them do. If you can afford it, you should have a criminal defense lawyer to represent you in the criminal case, and retain an immigration lawyer to advise you on the immigration consequences. If you are indigent,and have a court appointed lawyer, you should request - in writing - that he research the immigration issues and advise you - in writing - of the consequences.
If the horse is already out of the barn, you need a competent criminal defense lawyer to review your case. The Supreme Court held in the 2010 case Padilla v. Kentucky, 466 U.S. 668, 130 S.Ct. 1473, that, when the deportation consequence is truly clear, defense counsel is required to advise his client that removal is a virtual certainty. It’s not enough to just say that it’s “possible.” The court held that the defendant was denied effective assistance of counsel in violation of the 6th Amendment.
The problem arises, of course, of when are the deportation consequences “truly clear.” The lower courts are trying to sort that one out. A panel of the Texas Court of Appeals - San Antonio held recently that in cases where a non-citizen may be eligible for cancellation of removal through a petition to the Attorney General, that the consequences aren’t truly clear. The defendant has filed a petition for discretionary review with the Court of Criminal Appeals. ex parte Rodriguez, 378 S.W.3d 486, Tex.App.-San Antonio 2012, PDR #0081-13).
Other cases, where courts granted habeas relief, are also before the CCA. See Tanklevskaya v. State, 361 S.W.3d 86 (Tex.App.-Houston [1st Dist.] 2011 PDR filed);
Enyong v. State, 369 S.W.3 593 (Tex.App.-Houston [1st Dist.] 2012, PDR filed).
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