Archive | January, 2013

Padilla Loopholes

29 Jan

Most immigrants are aware of the Supreme Court’s decision in Padilla v. Kentucky, which says criminal defense lawyers must properly advise their clients of the immigration consequences of any criminal plea. However, many defendants fall through the cracks. An article in yesterday’s Washington Post discusses the problem of defendants who are not appointed defense counsel in the first place and plead guilty on their own. Therefore, they are never explained the immigration consequences of that plea.

The article discusses the case of Luis Bladilir Lopez. He was charge with marijuana possession. The prosecutor said he would not seek jail time and therefore, under the rules of most criminal court, including those in Texas, he did not have the right to appointed counsel. After being told that he would only have to pay a fine and have a suspended license for 6 months, and no jail time, Luis entered a guilty plea. He was later picked up by ICE and deported, as drug offenses carry significant weight in deportation hearings, even if only misdemeanors.

The article can be found here: http://www.washingtonpost.com/local/crime/immigrants-take-guilty-pleas-without-lawyers-and-can-later-be-deported/2013/01/27/ec70be46-591a-11e2-88d0-c4cf65c3ad15_story.html

This is an important hole in the protections that Padilla is supposed to provide. Even if defense attorney are competent with immigration law and correctly advise their clients, this does not matter if defendants are not being appointed attorneys in the first place.

There are two solutions. First, prosecutors and judges need to take responsibility in these cases. They should appoint counsel in cases where they may be no jail time but there could be severe immigration consequences. Or, they could advise defendants of the immigration consequences before making any plea offer or accepting any plea.

For immigrants who are charged with a crime, the lesson is also clear. Just because you have not been appointed an attorney does not necessarily mean that you will not face immigration consequences if accept a plea with no jail time. The federal government uses its own criteria to determine deportability, which could happen even without jail time. Therefore, people in such situations must take the initiative and insist on an attorney before accepting any plea.

Immigration Reform

28 Jan

Today is really the start of the immigration reform debate in Washington. A group of eight senators from both parties issued an outline of the principles that will guide their reform bill. These principles will form the basis for the debate in the coming months. The document is here:

http://apps.washingtonpost.com/g/page/politics/bipartisan-framework-for-immigration-reform-report/27/

There are a few notable features. First, it creates a provisional status for those here illegally. For a while, we have heard that there would be a “pathway to citizenship” for undocumented immigrants but they would have to go to the “back of the line”. It was never clear how this would work. There are still some questions, but it looks like they want to create a provisional legal status immediately, then grant permanent status once other things, like better border security, have happened. This is similar to what they did for Dreamers last year, creating an immediate provisional status, to take away the threat of deportation and provide work authorization, to be followed later by a permanent change of status. Just like with DACA, applicants would have to pass a criminal background check.

Incidentally, those who got deferred action for childhood arrival (DACA) will be on a faster track to permanent residence under this proposal.

Another interesting claim is that those with this provisional status will only get permanent residence after everybody waiting in line gets their green cards first. Since some people with family-based petitions have priority dates of 20 years ago, this would seem to be a long wait. Perhaps, they will issue a lot of green cards temporarily to clear the decks of everyone waiting in line. If so, people should apply now to get in line, even if it seems like a long wait, like a Mexican sibling of a US citizen. That wait might get a lot shorter. In fact, later in the document, they stress their intention to reduce backlogs for family-based visa petitions.

A lot more information will come out in the coming weeks and months. But, this document is important for setting the terms of the debate over immigration reform this year.