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Looking to erase a conviction for immigration purposes? What you need to know.
Deportation, Post Conviction
October 9th, 2010, shared by Aaron Tarin
Seeking a green card or citizenship but can't because of a criminal record? Changing and/or erasing a conviction in Utah for immigration purposes can be tough. Really tough. But it can be done although a simple expungement won't work. Check out page 19 of the Fall edition of UACDL's "Defender" magazine for what you need to know. (Text Below)
Fall 2010 Edition of Defender Magazine- UACDL (Utah Association of Criminal Defense Lawyers)_
Kentucky v. Padilla: Its perils and Its pearls.
By Hakeem Ishola, Aaron Tarin, Kimberly Herrera and Skyler Anderson
Introduction to Padilla
Immigration advocates across the country rejoiced on March 31, 2010, when the United States Supreme Court issued its greatly anticipated decision in Padilla v. Kentucky,[1] which established once and for all the constitutional right that a non-citizen must be advised of the collateral immigration consequences of a guilty plea in the criminal court. While the immigration bar celebrated Padilla, a collective groan could be heard from the criminal defense bar which realized that being a criminal defense lawyer now requires substantial knowledge of immigration law.
Padilla's ruling is not completely novel. Some jurisdictions, such as Utah, had already recognized the duty of counsel to advise defendants about immigration issues to a certain degree.[2] However, the obligation of counsel to accurately advise about the immigration consequences of a guilty plea was largely limited to affirmative misadvise. [3] In other words, if defense counsel chose to talk about the immigration consequences of a plea, the advice that followed needed to be accurate. After Padilla, defense counsel is now burdened with the affirmative duty to advise the defendant about the immigration consequences of a guilty plea. Simply put, avoidance of the issue by criminal defense counsel will no longer suffice.
Understandably, Padilla's greatest peril for criminal defense counsel may be the daunting task of becoming familiar with yet another special area of law in which "nothing is ever simple."[4] What is worse, Padilla's enigmatic holding has even some of the most experienced immigration practitioners wondering exactly what it means. Nevertheless, for better or for worse, Padilla is here to stay. As Justice Scalia decried in his dissent, the decision is a "sledge hammer" that has permanently "constitutionalized" the subject.[5]
The silver lining, perhaps, is that Padilla has placed immigration and criminal law on a collision course that is sure to produce better advocates for non-citizens. The decision is likely to spawn a new generation of hybrid lawyers equipped with tools from both trades. Expect to see the two areas of practice increasingly intertwined in ways ranging from how they are taught in law schools to the way the subjects are presented in continuing legal education courses. This article is merely one of many efforts aimed at the cross-germination of expertise between these two practice areas with the ultimate goal of producing lawyers better prepared to represent non-citizens in any and all fora.
Its Perils: What exactly does Padilla require?
Traditionally, courts have used the two-pronged Strickland v. Washington[6] standard to determine whether or not counsel was constitutionally deficient.[7] First, the movant must show that counsel's representation fell below an "objective standard of reasonableness."[8] Second, it must be shown that the outcome of the proceedings would have been different, or in other words that the defendant suffered prejudice.[9] So in the simplest sense, Padilla can be viewed as a mere modification of the first prong of the traditional Strickland test. Specifically, Padilla now means that proper advice on immigration consequences is part of what is reasonably expected from the criminal counsel. In sum, the failure of a criminal defense attorney to advise a non-citizen about the immigration consequences of a plea falls below the constitutional threshold.
That is the easy part. The hard part is determining exactly what advice must be given and under what circumstances. Padilla's holding leaves much to be desired for anyone looking for a straightforward answer. The Supreme Court held that if the immigration consequences of a plea are "unclear," an attorney need only advise a non-citizen that the plea may carry adverse immigration consequences.[10] On the other hand, if the immigration consequences of a plea are "clear," then the advice given regarding those consequences must be "equally clear."[11]
As noted in Padilla, determining exactly when immigration consequences are "clear" or not is where things get problematic.[12] No doubt, even the most seasoned immigration practitioners struggle to determine exactly what the immigration consequences are for a variety of offenses that a non-citizen may encounter. Treatises have been written on the subject, covering the varying types of immigration-related crimes, such as aggravated felonies, crimes involving moral turpitude [CIMT], and so forth. A comprehensive categorization of the different types of immigration-related crimes is outside the scope of this article and practitioners should refer to the wealth of resources available on the subject.[13]
It is important to note that Padilla has left many unanswered questions that are now being interpreted by lower courts in what has become an area of the law that is developing very quickly. As post-conviction litigation ensues on the issue, prosecutors attempting to protect their pleas will tend to argue that the immigration consequences were unclear. This is because the more unclear the immigration consequences of a plea are, the less clarity is required from counsel's advisals in order to sustain the constitutionality of a plea. Conversely, non-citizens seeking to vacate or ameliorate convictions will argue that the consequences were clear; thereby increasing the level of clarity the advisals must have contained in order to sustain a plea.
Courts are just beginning to struggle with Padilla's holding which can be viewed as a sliding scale of sort. The accuracy and specificity of the advice that counsel is required to give concerning the immigration consequences of a plea increase the more clearly those consequences are spelled out in immigration laws.[14] As time passes, and judges and attorneys are forced to hone their immigration knowledge, the sliding scale will undoubtedly shift towards more and more consequences becoming "clear." The pitfalls facing non-citizens will become more apparent as the subject becomes the topic of increased focus and attention.
Discussed below are four general types of immigration consequences which are arguably located at different points along this sliding scale. They vary from the most fundamental and obvious immigration consequences of a plea, to those that require more analysis to identify but nonetheless have perhaps the most severe implications for a non-citizen.
Crimes that Trigger Deportation Proceedings[15]
Determining whether a crime will trigger deportation proceedings is perhaps the easiest part of Padilla to comply with. Simply put, a non-citizen should know whether or not a plea will land the individual into deportation proceedings. However, as discussed further below, the triggering of deportation proceedings is just the beginning of a lengthy process that may take years to complete. Criminal defense practitioners, therefore, must part from the idea that deportation is a singular act that occurs overnight.
The true immigration consequences of a plea come into play only after deportation proceedings have been initiated.[16] Thus, advising a non citizen that a crime could result in "deportation" without further elaboration is akin to a defense attorney who advises a client facing murder charges that he simply faces "jail time" without providing further details. Proper advice for a criminal defendant would undoubtedly include discussions about potential jail time, the possibility of parole, probation, and the death penalty. Likewise, any meaningful advice given to a non-citizen concerning a plea whose collateral immigration consequences are "clear" requires discussions that go far beyond the simple fact that a plea will "trigger deportation."
Crimes that Prevent a Non-Citizen from Stopping Deportation Once it has Begun.
As noted in Padilla, the vast majority of convictions will land a non-citizen into deportation proceedings. [17] This is pretty much settled. However, once deportability is established the most important question becomes: Is there any way for the non-citizen to fight deportation and stay in the country?
As commonly referred to in immigration practice, a non-citizen may stop deportation by finding a "form of relief" from deportation.[18] There is little doubt that Padilla brings advice regarding the eligibility for relief into the spectrum of consequences that a criminal defense attorney must discuss. Padilla specifically states that "preserving the possibility of relief" is one of the principal benefits sought by defendants looking to negotiate a plea agreement.[19] This is problematic for criminal defense counsel because it requires an additional layer of analysis in order to properly advise the non-citizen. Nevertheless, analyzing forms of relief is a critical part of the plea process because many times the facts and circumstances behind a criminal charge simply make it unfeasible to avoid a conviction that will trigger deportability. In these cases, counsel should know when to shift gears and focus on obtaining a plea that will give the non-citizen a fighting chance at defending the deportation proceedings that will most likely follow. A non-citizen may choose to accept or reject a plea depending on whether or not the conviction will prevent him or her from ultimately stopping deportation once it starts. The problem is that in order to give advice about whether a plea will affect eligibility for relief once deportation is triggered, counsel must have solid knowledge of exactly what type of immigration "status" a non-citizen has. Phrased differently, not all non-citizens have the same resistance to the "deportation virus" once they contract it.
The immigration status of certain non-citizens such as legal permanent residents (green-card holders), for example, is much more resistant to deportation than the status of a non-citizen with Temporary Protected Status (TPS).[20] A long time green-card holder (and even some non-green-card holders) may be able to resist deportation even when triggered by serious convictions such as violent or sex crimes.[21] On the other hand, a mere traffic ticket might be fatal to the immigration status of a non-citizen with TPS.[22] In other words, certain crimes will have different collateral immigration consequences depending on the non-citizen. This is definitely an area where one size does not fit all.
A comprehensive discussion on the various forms of relief from deportation and a list of the non-citizens that qualify is outside the scope of this article. In order to properly advise about how a plea will affect a non citizen's ability to fight off deportation, counsel should inquire into the actual immigration status of the non-citizen and then refer to literature on the subject of available relief from deportation and how that relief may be impacted.[23]
Mandatory Detention Crimes
Padilla notes an obvious truth: In the criminal context, the potential for jail time is an important aspect of a plea that every criminal defendant should be aware of.[24] Arguably, the potential for jail time that a non-citizen faces at the hands of immigration officials is an equally important aspect of a plea which a defendant should understand. Jail time at the hands of Immigration and Customs Enforcement (ICE) sometimes greatly exceeds any state jail time imposed for the underlying offense.
Particularly, a non-citizen should be advised if a conviction will subject him or her to what is known as "mandatory detention" at the hands of ICE without the possibility of bail.[25] To illustrate, a non-citizen accepting a plea requiring only a weekend in jail might think he is getting a sweet deal until he finds out that instead of going home on Monday morning ICE will lock him up without possibility of bond for months or even years before ultimately being deported. Again, the peril for the defense counsel is becoming familiar with the nuances of the immigration laws governing the varying types of convictions which may or may not subject a non-citizen to mandatory detention at the hands of ICE.
For practical reasons, the subject of mandatory detention is an aspect that arguably trumps all other consequences stemming from a guilty plea. This is because a non-citizen's chances of surviving deportation almost always turn on whether or not the non-citizen can get out of ICE custody on bond while deportation proceedings are pending. Many non-citizens, who are eligible to stop deportation through the various forms of available relief simply throw in the towel once they learn they are ineligible for bond because they do not want to stay in jail for a lengthy deportation process.[26] In this sense, offenses classified as mandatory detention crimes have done more to doom efforts to keep non-citizens in the country than any other type of classification. Practitioners should therefore make detention considerations front and center when advising non-citizens on whether or not to accept a plea.
Inadmissibility Crimes [27]
There is no question that citizen defendants are often willing to accept pleas with potentially long jail or prison sentences if they know that there is a good possibility the actual sentence will be short or suspended, and they will be allowed to re-integrate into society early on probation or parole. Similarly, a non-citizen may be willing to accept deportation if it means having to leave the country for a short time and then becoming eligible to apply for reentry to the country in the future.
This distinction is important because certain crimes will not only get a non-citizen deported, but carry with them a life-time bar that banishes a person from ever coming back into the United States. [28] In immigration jargon, these are "inadmissibility" crimes and can render a non-citizen ineligible to ever return to the United States after being deported. Padilla notes that any "decent attorney" with knowledge that a client may face "banishment or exile" would surely inform the client of this risk.[29] Moreover, as mentioned above, the Padilla court embraces a prior Supreme Court holding which dealt with the importance to a defendant of preserving a form of "deportation" relief that came in the form of a waiver of "inadmissibility." [30] In other words, Padilla recognized the importance that a non-citizen be informed of whether or not the plea will prevent him from being "admitted" into the country in the future, and not just whether the conviction will subject him to deportation.
A criminal defense attorney would obviously advise his client about the consequences of a plea if he were facing the prospect of a lifetime in prison with no possibility of coming back into the free world. Likewise, advising a non-citizen that a plea will not only get him deported but will also impose life-time banishment from the United States may be the determining factor in whether or not a non-citizen decides to take a case to trial.
The peril is that this analysis sends the criminal defense attorney tumbling further down the rabbit hole into a complex area of immigration law that deals with a myriad of legal means that may be available for certain non-citizens to come back into the country even after being deported.[31] For example, deportation for an "aggravated felony" carries with it a life-time bar as defined by law.[32] Further, even other seemingly minor misdemeanor crimes, like possessing a single pill of Lortab, may also carry the same type of life-time banishment due to the fact that there are no re-entry waivers available for a crime involving that particular drug.[33]
Just like there is "life after jail" for a citizen, there may be life in the United States even after deportation for non-citizens. Thus a non-citizen contemplating a plea will be intimately concerned with the prospects of coming back to the United States someday, particularly if they have family members who will stay behind. Although it remains unclear the extent to which advisal on this particular immigration consequence is mandated by Padilla, criminal defense practitioners may be wise to add this to the list of considerations when advising about a plea.
Meeting The Prejudice Prong After Showing Ineffectiveness
Returning to the Strickland framework mentioned above, only the first step is completed when a non-citizen demonstrates that counsel's advice was deficient by failing to properly advise about one or more of the aspects of immigration law discussed in this article. Thus, at this point the post-conviction battle is only half over. The second Strickland prong requires proving prejudice. In essence, a non-citizen must show that even after being properly advised, choosing to reject a plea bargain would have been rational. [34] Padilla downplays how nuanced this portion of the analysis can be, noting that lower courts have had plenty of experience ironing out the kinks in this step of the Strickland analysis.[35]
However, practitioners representing non-citizens should avoid approaching the prejudice prong the same way they approach it when dealing with a United States citizen seeking to withdraw a plea. For example, a citizen could be foolish to reject a plea to a misdemeanor drug charge when the state's evidence is strong and there is little or no risk for jail time. The choice to accept a small fine or perhaps some drug treatment classes in order to avoid trial and jail time is a no-brainer for a citizen.
For a non-citizen, however, the risk of a few weeks or even years in jail pales in comparison to the prospect of banishment to a third world country where he fears torture or even death.[36] Some non-citizens would prefer a prison term in the United States where there is a roof overhead, three square meals a day, and weekly visits with loved ones. Others would prefer waiting things out in jail, hoping for a future change in the law or personal circumstances that might benefit their situation.[37]
Thus, when analyzing the prejudice prong, practitioners should point out that the stakes simply are not as high for citizens as they are for non-citizens. A seemingly "irrational" decision by a citizen to take a weak case to trial might be the only "rational" decision when made by a non-citizen facing the same charge. Non-citizens contemplating a trial and who fully understand the severe consequences of deportation have so much more to gain and almost nothing to lose by taking a gamble that a non-citizen would not even consider.
Understanding this mentality can be counterintuitive for criminal defense attorneys where avoiding and/or minimizing jail time for the client has long been the guiding mantra. Attorneys must keep this in mind when arguing the prejudice prong via Padilla. In sum, contrary to speculation by prosecutors, showing prejudice to a non-citizen is not nearly as daunting as it is for a citizen.
Its Pearl: Padilla's Retroactivity.
Although this issue is not completely settled, the majority of courts have held that Padilla should be applied retroactively.[38] The traditional test for retroactivity looks to whether or not the new decision in Padilla created a new criminal constitutional rule.[39] As discussed above, Padilla can be viewed as a mere modification or new application of the long-standing Strickland framework for determining ineffective assistance of counsel.[40] Moreover, Padilla went to great lengths to mitigate the concern that the decision would "open the floodgates" to a sea of challenges against old pleas.[41] Obviously, the Court was mindful that Padilla would indeed affect pleas entered into before the decision.[42] Had the Court believed the decision would not apply retroactively much of the discussion with respect to floodgates would have been unnecessary.
Despite the majority rule in favor of retroactivity, attorneys in Utah can expect prosecutors to continue to argue that Padilla is not retroactive until the issue is ironed out in the appellate courts.[43]
Its Peril: Utah's Post Conviction Remedies Act (PCRA) and Availability of the Ancient Writs.
For many Utah practitioners, jubilation over Padilla quickly turned into frustration with the realization that procedural hurdles in Utah effectively placed Padilla out of reach for many non-citizens looking to withdraw a plea or vacate a conviction. This is due to the fact that most non-citizens seeking post-conviction relief remain in deportation proceedings where removal from the United States by ICE is imminent.[44] For many years, obtaining post-conviction vacatur was simply a matter of reaching a stipulation with a reasonable prosecutor and getting the judge to sign off on the agreement. However, with the increase in deportations and the opening of the Salt Lake City Immigration Court, post-conviction petitions have dramatically increased and many prosecutors and judges have become somewhat hostile to them.
Further, in recent years, the Utah legislature has amended the Post Conviction Remedies Act (PCRA) and has attempted to usurp the authority of judges to address post-conviction claims through vehicles such as motions to withdraw plea, common law writs and other means. [45] Instead, the PCRA is now being touted as the only vehicle for obtaining post-conviction relief in Utah. PCRA, however, is extremely slow and cumbersome to use in order to vacate a conviction. [46] The days of filing a quick writ-based motion, or negotiating a modification with a prosecutor, are being threatened. Indeed, a recent newsletter put out by the Utah Prosecution Counsel confirms that prosecutors are coordinating their strategy to deal with Padilla essentially by stonewalling Padilla claims through PCRA before attempting to address the substance of a Padilla claim. [47] This is a constitutionally dubious yet clever strategy that is highly effective in disposing Padilla claims, given the fact that most non-citizens are deported long before their post-conviction claims have a chance to make it through PCRA's procedural hurdles and onto a judge's desk.[48]
In order to obtain post-conviction relief, traditional writs such as Coram Nobis and Habeas Corpus (the ancient guardians of due process), should be taken off the shelf and used by the defense bar to get around prosecutors' efforts to stonewall via PCRA .[49] The writs are needed now more than ever and attorneys should cite to the long line of cases recognizing the judiciary's inherent authority to ensure, through special writ or otherwise, the integrity of the criminal process and to guard against egregious injustice and unnecessary delay. [50]
Padilla provides additional ammunition against rigid, inflexible, statutes like Utah's PCRA.[51] The Supreme Court specifically recognizes the need for the States to provide "flexible" procedures to allow non-citizens to remedy unconstitutionally obtained pleas.[52] Continuing to distinguish cases involving citizens from those of non-citizens, practitioners seeking post-conviction remedies should underscore the unique circumstances of non-citizens in fast-moving deportation proceedings, and argue that the latter cases require timely remedies to ensure that non-citizens are afforded due process and equal protection under the law.[53]
Counsel should point out the broad array of authority that ICE possesses to quickly effectuate removal of a non-citizen who has been convicted. Sometimes this happens in a matter of days after a non-citizen pleads guilty to a crime.[54]
The speed of deportation should be contrasted with the delay inherent in the civil nature of PCRA proceedings. For example, PCRA allows the government to delay a case for years and requires a non-citizen to be present at dispositive hearings, making things impossible if the non-citizen is deported to another country.[55] Often, non-citizens and their counsel simply do not have that much time to begin working on post-conviction motions or petitions. The complexity of immigration law is such that many non-citizens may not realize the risk a plea carries until years later when deportation is upon them.[56]
In sum, the rights afforded to non-citizens under Padilla mean absolutely nothing if they have no effective vehicle through which to seek to vindicate those rights. Therefore, arguing the unique circumstances confronting non-citizens is critical to obtaining the relief needed, especially because of the often short period of time available to prevent deportation.[57]
The Pearls found between Padilla's lines.
The rippling effects of Padilla are beginning to be felt across the country and throughout the entire penal system. Courts, District Attorneys and public defenders are changing everything from their standard plea agreements to boilerplate court advisals as they struggle to find ways to deal with the implications from Padilla. It appears unlikely that mere changes to boilerplate plea forms or scripted advisals will do much to meet Padilla's requirement that a non-citizen understand the collateral consequences of a guilty plea.[58]
What is clear, however, is that the old days of tip-toeing around the giant immigration elephant in criminal courtrooms are over. Padilla has placed the issue squarely in the lap of everyone involved, including the prosecutor, judge, and defense counsel. Though some prosecutors and judges previously refused to consider immigration-related matters, Padilla now requires that the issue be addressed at arguably all stages of the criminal process.[59]
The days of working a sweet immigration deal past a prosecutor who is unfamiliar with what is really going on are over. The plea bargaining process of the future will entail putting all the issues, including immigration issues, on the table from day one. This strategy might make some counsel uncomfortable, but it is important to remember that Padilla provides great tools previously unavailable in negotiating pleas for non-citizens.
A fundamental point to remember is that Padilla came very close to completely blurring the historic lines between deportation and criminal punishment, pointing out that deportation can be the most important aspect of punishment arising from a guilty plea.[60] The Court engaged in a lengthy overview of the evolution of immigration laws and pointed out just how harsh they have become.[61] Viewed differently, the Court took its first rational step towards proportionality in recognizing that pleading a non-citizen in the same way you would plead a citizen produces results that simply do not comport with traditional norms of justice. This principle of proportionality should be a selling point to judges and prosecutors when negotiating pleas for non-citizens. Padilla instructs that by bringing deportation consequences into the process, the parties "may well be able to reach an agreement that better satisfy the interests of both parties."[62] In other words, Padilla should be used to fashion a plea in such a manner that the non-citizen is exacted a degree of "punishment" that fits the crime, to the satisfaction of both parties. The trick is to achieve a result that does not appear to be giving a non-citizen any special "break" not available to citizens.
Achieving this result may require some counterintuitive thinking on the part of defense counsel and prosecutors alike. For example, a plea might be fashioned to include jail time for conduct that normally would not warrant it, in exchange for pleading to a different statute that does not carry the same harsh immigration consequences. Another example may involve pleading a non-citizen "up" instead of "down" in exchange for a stipulated sentence of 364 days instead of 365. These are deals that a citizen may not even contemplate as they are considered "worse" than the original charges. This however bolsters the position that the non-citizen is not necessarily being afforded a better deal than a citizen. The creative use of Padilla at sentencing can also be used to compel judges to participate in this process by honoring the delicate balance struck by the parties in their agreement.[63]
Most importantly, Padilla means that the wrangling over immigration consequences no longer needs to be viewed as a kind of sinful compromise, secretly conspired and struck in the dark corners of the courthouse. Padilla legitimizes the process as something that should be played out in open court, with the informed participation of all involved. Avoiding the issue might still be appropriate in some circumstances, particularly when the practitioner knows the tendencies of a particular judge. But, sooner or later, everyone involved will be forced to face Padilla's music, and it does not necessarily have to be a bad thing.
[1] 599 U.S. ___, 130 S.Ct. 1473 (2010).
[2] See, e.g., State v. Rojas-Martinez, 125 P.3d 930 (Utah 2005) (recognizing the seriousness and "gravity of the consequences of deportation," which may include banishment or exile, and holding that defense counsel must advise non-citizens of deportation consequences of guilty pleas), overruled on other grounds by Padilla 130 S.Ct. 1473.
[3] Id.
[4] Padilla, 130 S.Ct. at 1489.
[5] Id. at 1496-97 (Scalia, J., dissenting).
[6] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
[7] Id at 687.
[8] Id.
[9] Id.
[10] Padilla, 130 S.Ct. at 1486.
[11] See id. at 1483.
[12] Id.
[13] See,e.g., Kurzban's, Immigration Law Sourcebook 163 (11th ed. 2008).
[14] See Padilla, 130 S.Ct at 1483. (Alito, J., concurring).
[15] See generally INA 237, 8 USC §1227.
[16] Deportation begins with issuance of a Notice To Appear (From I-862) in which the alien is summoned to appear in front of an immigration judge at a specified time and place to begin the process. See INA §239(a); 8 U.S.C. §1229(a); 8 C.F.R. §§ 1003.14, 239.1(a), 1239.1(a), 1240.30, 1240.55. DHS initially has low burden of proving alienage which can be met through hearsay on form I-213 as federal rules of evidence not applicable in immigration court. See e.g., Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2, rehear'g denied 256 F.3d 546 (7th Cir. 2001) Burden then shifts to the non-citizen to show s/he is "clearly and beyond doubt entitled to be admitted and is not inadmissible under the section pursuant to federal law. See INA §240(c)(2); 8 U.S.C. §1229a(c)(2); and 8 C.F.R. §1240.8(b).
[17] See Padilla, 130 S.Ct at 1476.
[18] See generally INA §§240A(a)&(b);Kurzban's, Immigration Law Sourcebook 163 (11th ed. 2008).
[19]See Padilla, 130 S.Ct at 1483; see also INS v. St. Cyr, 533 U.S. 289 (2001).
[20] Cf. INA § 101(a)(20), 8 USC 1101(a)(20)(defining an LPR, green card- holder) with INA §244, 8 U.S.C. §1254(a) (status of TPS).
[21] See, e.g., In re Sidney Michel, 22 I. & N. Dec. 1101 (BIA 1998) (holding that 212(h) relief remains available for certain aliens convicted of an aggravated felony); see also Martinez v. Mukasey, 508 F. 3d 255 ( 5th Cir. 2007).
[22] See,e.g., 8 C.F.R. §§ 244.1, 1244.1 (TPS eligibility lost if a felony or two or more misdemeanors); U.C.A 41-6a-202 (violations of Utah traffic code are class C misdemeanors, unless otherwise provided).
[23] See generally Kurzban's, Immigration Law Sourcebook (11th ed. 2008); Kramer, Immigration Consequences of Criminal Activity (4th ed. 2009).
[24] See Padilla, 130 S.Ct. at 1483.
[25] See INA §236(c), 8 USC § 1226 (aliens subject to mandatory detention for even relatively minor crimes for which they become ineligible for bail, referred to in immigration proceedings as "bond").
[26] The DHS has authority under federal regulations to initiate and conclude deportation proceedings before the alien has even served out a state or federal sentence. See INA § 238(a)(1); and 8 USC § 1228(a)(1).
[27] See generally INA 212(a)(2), 8 USC 1182.
[28] See e.g., Padilla, 130 S.Ct at 1485; INA §212(a)(9)(A)(ii), 8 USC §1182(a)(9)(A)(ii) (regarding lifetime bar for aggravated felons); INA§ 212(h), 8 USC § 1182 (barring reentry waiver for any drug crime not involving 30 grams of marijuana or less).
[29] See Padilla, 130 S.Ct at 1484 n. 11.
[30] Id. at 1482 (citing INS v. St. Cyr, 533 U.S. 289, 294 (2001)). The St Cyr decision itself generally discussed guilty pleas entered into by non-citizens seeking to preserve waiver of "exclusion", the precursor concept for current "inadmissibility" grounds and found in former INA 212(c), 8 USC 1182(c), and which was available to only to non-citizens who had departed the United States after the ground of deportation arose and were thus "excludable". Note that Section 212( c) only became available to non-citizens in deportation proceedings when the Second Circuit in Francis found that denial of such reliefs to non-citizens in deportation proceeding violated the equal protection clause. See Francis v. INS, 532 F.2d 268 268 (2d Cir. 1976).
[31] See,e.g., INA§ 212, 8 USC § 1182; See also Ferguson, American Immigration Lawyers Association (AILA), Focus on Waivers Under the Immigration and Nationality Act (2008).
[32] See INA §212(a)(9)(A)(ii), 8 USC §1182(a)(9)(A)(ii) (regarding lifetime bar for aggravated felons).
[33] See INA 237(a)(2)(b), 8 USC 1227(a)(2)(b)(for ground of removability for any controlled substance crime not involving 30 grams or less of marijuana), see also INA§ 212(h), 8 USC § 1182 (barring reentry waiver for any drug crime not involving 30 grams of marijuana or less).
[34] See Padilla, 130 S.Ct at 1483.
[35] Id.
[36] See Padilla, 130 S.Ct. at 1484.
[37] See e.g., INA §§101(b)(1) & 201(b)(2)(A)(i), 8 U.S.C. §§1101(b)(1) & 1151(b)(2)(A)(i) (providing that U.S. citizen children may petition for parent upon turning 21).
[38] Several courts have held that Padilla applied retroactively to convictions had before March 31 2010. See, e.g., USA v. Chaidez, 2010 WL 2740282 (N.D.Ill., July 8, 2010) United States v. Obonaga, 2010 WL 2629748 (EDNY June 24, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010); People v. Bennett, 906 N.Y.S.2d 696, 700 (N.Y. Crim. Ct. 2010); People v. Jose Garcia, 4050-06, NYLJ 1202471399332, at *1 (Sup. KI, Decided August 26, 2010). There are, however, other courts going the opposite way. See Gacko v. United States, No. 09-CV-4938 (ARR), 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010); People v. Kabre, No. 2002NY029321, 2010 WL 2872930, at *10 (N.Y. Crim. Ct. July 22, 2010)(pro se litigant failed to establish retroactivity).
[39] See Whorton v. Bockting, 549 U.S. 406, 416 (2007); Saffle v Parks, 494 U.S. 484, 488 (1990); Teague v. Lane, 489 U.S. 288, 301 (1989).
[40] See, e,g., Chaidez, No. 03CR636-6 (N.D. Ill, August 11 2010) (reported in Google Scholar.com);
[41] See Padilla, 130 S.Ct. at 1485.
[42] See id.
[43] For a more ample discussion of Padilla retroactivity, see Dan Kesselbrenner, National Immigration Project, "Retroactive Applicability of Padilla v. Kentucky" (2010).
[44] Mere initiation of post conviction action does not affect removal process. See generally Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Khalik, 17 I & N Dec. 518 (BIA 1980); Matter of Fortis, 14 I & N Dec. 576 (BIA 1974); Matter of Sirhan, 13 I & N Dec. 592 (BIA 1970); Matter of Adetiea, 20 I&N Dec. 506 (BIA 1992). "Full faith and credit" must be given to state court judgments regardless of any actual or alleged constitutional or jurisdictional deficiency. See Matter of Kaneda, 16 I&N Dec. 677, 679-90 (BIA 1979); Matter of O'Sullivan, 10 I&N Dec. 320, 339-40 (BIA 1963). Post-conviction petitions are given no effect unless and until the conviction has been overturned on constitutional grounds. See Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976). See also Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132, 2005 WL 237759 (10th Cir. 2005); Pickering v. Gonzales, 465 F.3d 263, 270 (6th Cir. 2006); Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005); Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006); Sandoval v. INS, 240 F.3d 577, 583 (7th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000); United States v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999). In addition, collateral attack cannot be mounted in deportation proceedings. See Trench v. INS, 783 F.2d 181 (10th Cir. 1986); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981).
[45] See,e.g., Utah Code § 78B-9-102(1)(2008) ("This chapter establishes the sole remedy....[and] replaces all prior remedies for review, including extraordinary or common law writs"). But See State v. Rees, 125 P.3d 874 (Utah 2005), (leaving open the possibility of relying on a writ of coram nobis in cases where a defendant was otherwise without remedy). Specifically, Rees noted that a writ of coram nobis exists to "correct fundamental errors which render a criminal proceeding irregular and invalid," and reiterated that a writ of coram nobis can be used "by a sentencing court to modify or vacate a judgment of conviction on the basis of the facts which, without defendant's fault, did not appear on the face of the record and as to which the defendant was without other remedy." Id. at 876 n.1 (citations omitted; emphasis added).
[46] State v. Nicholls, 148 P.3d 990, 991 (Utah 2006). There is no provision within the PCRA defining a timeline within which the judge must make this determination, leaving the possibility of indefinite delays. See Utah R. Civ. P. 65C(h), (no timeline or guideline is included in the PRCA for initial determination). Once the PCRA judge has made a determination, provided the motion is not summarily dismissed, the State is then allowed at least 30 days to respond but time is afforded the government where the notice was received by mail, or "as the court may allow." See Utah R. Civ.P. 65C(j); see also Sparrow v. U.S., 174 F.R.D. 491 (D.Utah 1997) (ruling a default judgment to be an inappropriate response to the government's failure to timely respond to defendant's motion to vacate his sentence, instead simply issuing an order to show cause). This opens the door for any number of procedural delays, warranted or not, by the government. Prior to setting a date for a formal hearing, the PCRA provides that the judge may order a prehearing conference. See Utah R.Civ.P 65C(k). Although such a hearing may not be used "so as to delay unreasonably the hearing on the merits of the petition," what would in other circumstances be a reasonable delay, greatly increases the likelihood that non-citizen defendants will be deported prior to addressing the merits of their motion. In cases where non-citizen defendants are not represented by counsel, they must be present for the prehearing conference, which would be an impossibility for those subject to mandatory detention under immigration law, or for those already removed from the country. See Utah R. Civ. P 65C(l). Although non-citizens under such circumstances could appear telephonically or via video conferencing, this option may be entirely impractical in cases where the country of removal lacks the means to facilitate such a communication with the district courts. See, e.g., Yakomba Yavwa, Enabling Communication in Developing Regions, at www.ejisdc.org/ojs2/index.php/ejisdc/article/view/32 (discussing lack of communication facilities in the third world).
[47] See http://www.upc.state.ut.us/newsletter/July2010.pdf.
[48] PCRA cases may take years to finalize. See,e.g., Peterson v. Kennard, 2007 UT App 26, ¶ 3, 156 P.3d 834, 836 (Utah 2007) (initial PCRA filing occurred in 2002 but Utah Supreme Court made final determination in the matter more than six years later on December 30, 2008. See Peterson v. Kennard, 2008 UT 90, 201 P.3d 956 (Utah 2008)).
[49] E.g, the Utah Constitution gives the Utah Supreme Court "power to issue all writs and orders necessary for the exercise of the Supreme Court's jurisdiction or the complete determination of any cause." Utah Const. art. VIII, § 3.
[50] See e.g., Gardner v. State, 234 P.3d 1115, 1146 (Utah 2010) ("We have not examined whether the PCRA and Rule 65C now wholly accommodate the full measure of our constitutional authority or whether the Utah Constitution requires that we be able to consider, in some cases, the merits of claims otherwise barred by the PCRA"); see also, Gardner v. State, 234 P.3d 1115 (Utah 2010) (the State acknowledged that the Supreme Court "retains constitutional authority, even when a petition is procedurally barred, to determine whether denying relief would result in an egregious injustice"); Lucero v. Kennard, 125 P.3d 917, 922-23 (Utah 2005) ("It should first be noted that the PCRA cannot limit this court's authority to review justice court defendants' petitions for post-conviction relief"); Adams v. State, 123 P.3d 400, 407. (Utah 2005) (holding that the defendant was "entitled to a hearing on his claim for post-conviction relief based on his former counsel's failure to assert a voluntary intoxication defense" and because he had a "non-frivolous claim that may prove meritorious as well as good reason for filing his petition late"); Tillman v. State, 128 P.3d 1123, 1130 (Utah 2005) (quoting Martinez v. Smith, 602 P.2d 700, 702 (Utah 1979) (When evaluating a post-conviction claim for good cause, "howsoever desirable it may be to adhere to the rules, the law should not be so blind and unreasoning that where an injustice has resulted the victim should be without remedy"); Tillman v. State, 128 P.3d 1123, 1130 (Utah 2005) (internal quotations and citations omitted) ("Thus, even where an issue could have been raised in a previous post-conviction petition, post-conviction review may be available in those rare cases, or unusual circumstances where an obvious injustice or a substantial and prejudicial denial of a constitutional right has occurred that would make it unconscionable not to reexamine the issue"); Gardner v. Galetka, 94 P.3d. 263, 268 (Utah 2004) (Quoting Hurst v. Cook 777 P.2d 1029, 1034(Utah 1989)) ("By preserving the 'good cause' exceptions we imply no lack of deference to the legislature, but rather recognize, and emphasize, our solemn responsibility to safeguard 'one of the most important of all judicial tools for the protection of individual liberty'"); Hurst v. Cook, 777 P.2d 1029, 1033 (Utah 1989) (the power to allow writs of habeas corpus and all prerogative writs "[q]uintessentially...belongs to the judicial branch of government"); Manning v. State, 89 P.3d 196, 202 n.4 (UT App. 2004) (quoting Swart v. State, 976 P.2d 100) (UT App. 1999) (Internal quotations omitted) ("The Legislature enacted the current provision, lengthening the time period to one year and adding the 'interests of justice' exception... which, as we have previously held and affirm today, must always [be] consider[ed] ... when a petitioner raises meritorious claims").
[51] See Padilla, 130 S. Ct. at 1491(Alito, J., concurring) (States must provide "flexibl[e] procedures" and "discretion to determine whether the interests of justice would be served by allowing a particular defendant to withdraw a plea entered into on the basis of incomplete information.").
[52] Id.
[53] Id. at 1491; see also supra notes 51 and 52 and accompanying texts.
[54] Certain aliens with convictions that are "aggravated felonies" are subject to "administrative removal" (as opposed to a court-based deportation hearing before an IJ) allowing for removal in a mere 14 days. See INA §238(b), INA §238(c); 8 U.S.C. §1228(b); 8 C.F.R. §§238.1, 1238.1. "Detained" aliens are placed on an expedited calendar to be given even higher priority for processing their deportation. See INA §236(c), 8 U.S.C. §1226(c). 8 C.F.R. §1003.1(e)(8); see, e.g., Matter of G-,20 I & N Dec. 764 (BIA 1993). Once IJ issues final order, aliens are deported to some countries, Mexico for example, on a weekly basis. Federal statute provides DHS a maximum of 90 days to remove alien once final order issued by DHS or an IJ. See INA §241(a)(1)(A) & (B), 8 U.S.C. §1231(a)(1)(A) & (B). See generally Ishola, Representing Detained Aliens, American Immigration Lawyers Handbook (June 2005).
[55] See,e.g., Rule 65C (k) or (l).
[56]See Padilla, 130 S. Ct. at 1483(recognizing that many criminal practitioners not well versed in immigration law).
[57] For an example of how these arguments can be used, on July 22, 2010, Judge Allen in the First Judicial District Court allowed a late-filed motion (Two decades late) to withdraw guilty plea under UCA 77-13-6. Judge Allen held that PCRA applies only to those who have exhausted all other legal remedies, and that PCRA is not applicable to a defendant who can still raise an issue by a post-trial motion or where the defendant asserts that he was denied the right to appeal. See State v. Wong, Case# 101100241 (First District Court, Logan Department).
[58] See e.g., People v. Jose Garcia, 4050-06, NYLJ 1202471399332, at *1 (Sup. KI, Decided August 26, 2010)(Judge's general immigration warnings to defendant failed to cure counsel's failure to warn as per strict requirements of Padilla. Conviction vacated and Padilla held retroactive).
[59] See Padilla, 130 S.Ct. at 1486.
[60] Id. at 1481; see also St. Cyr, 533 U.S. 289 at 321.
[61] See Padilla, 130 S.Ct. at 1478-1479.
[62] Id. at 1486.
[63] See Utah R. Crim. P. 11(i)(2)(allowing for advanced submission of tentative plea agreement to judge for pre-approval).
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Vacate a Conviction
Deportation
October 9th, 2010, shared by Aaron Tarin
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Senators Menendez and Leahy Introduce First Comprehensive Immigration Bill
Immigration Reform
October 6th, 2010, shared by Aaron Tarin
WASHINGTON, DC - The American Immigration Lawyers Association (AILA) views the introduction of the Comprehensive Immigration Reform Act of 2010 (S. 3932) by Senators Robert Menendez (D-NY) and Patrick Leahy (D-VT) as an important step in advancing reforms of our nation's broken immigration system. The Menendez-Leahy bill is the first comprehensive immigration bill introduced in the Senate since 2007. It includes key elements that both Republican and Democratic leaders have called for: enhanced border security, mandatory employment verification, fixes to the business and family visa systems, a legalization plan for the millions who are undocumented, and stiffer penalties on illegal immigration. This bill launches the long-needed debate about how to reform our immigration system.
"The Menendez-Leahy bill combines enforcement with broad legalization," said David Leopold, president of AILA. The CIR Act of 2010 sets stringent benchmark "triggers" that must be met before anyone can get a green card under the proposed legalization plan. It includes major increases in border patrol officers, worksite enforcement investigators, security measures on the borders, and surveillance technology. The bill is also tough on illegal immigration and raises the penalties for illegal entry, increasing the maximum criminal penalty to up to 25 years imprisonment. The bill also cracks down on gang violence and sex offenders, and restricts immigrants from buying guns.
"The Menendez-Leahy bill includes important elements from Sen. Schumer's REPAIR Proposal, which Democrats offered as a bi-partisan compromise to Republicans," said Leopold. "S. 3932 also includes the DREAM Act, AgJobs, and other proposals that have drawn support from both sides of the aisle." AILA has been calling for an immigration system that works - a fair and effective program that secures our borders, goes after employers who take advantage of undocumented workers, and creates a process to legalize current undocumented immigrants who meet strict eligibility requirements. Leopold added, "The time is now for comprehensive immigration reform. CIR would aid our economy and provide fairness to taxpayers, job creators, and families that now get hopelessly entangled in the dysfunctional immigration system."
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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Tags: immigration reform bill
