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Wednesday, September 22, 2010

Immigration and Immigrant Defense

This Thursday, September 23, 2010, CLORE will be co-hosting an event, where there will be a review of select cases from the Supreme Court’s 2009-2010 term and their impact on the Latino community and practitioners.  Immigration and immigrant defense will be a topic of interest at this discussion.  Manuel D. Vargas, Senior Counsel with the Immigrant Defense Project, will discuss Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) and Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Mr. Vargas is a nationally known expert on the immigration consequences of criminal convictions.

In Carachuri-Rosendo v. Holder, the Court held that a “second or subsequent conviction on a simple drug possession charge is not an aggravated felony” for purposes of the Immigration and Nationality Act (INA).  The statute makes clear that an aggravated felony” is a conviction for “illicit trafficking in a controlled substance.”  Carachuri-Rosendo’s possession offense did not “fit easily into the ‘everyday understanding’ of those terms.”   Unfortunately, before this, the definition of “aggravated felony” was expanding to punish immigrants convicted of crimes and was the cause of deportation of many non-citizens.  In fact, in this case, the Board of Immigration Appeals claimed Carachuri-Rosendo was ineligible for cancellation of removal because there was a possibility that his conduct, coupled with facts outside of the record of conviction, could have authorized a felony conviction under federal law.  The Court set the record straight saying “we are to look to the conviction itself as our starting point, not to what might have or could have been charged.” 

There are many who say that non-citizens who commit crimes are a growing threat to public safety and national security, as well as a drain on our scarce criminal justice resources.  I understand that administering justice to criminal aliens costs taxpayers.  However, justice should be administered to all.  Stretching statutory language to find any way to deport non-citizens is unfair.  Carachuri-Rosendo is a legal permanent resident of the United States and should be not have been disregarded in the way he was.  The outcome of his case brings great news for non-citizens or those working with non-citizens placed in removal proceedings based on criminal charges.

In Padilla v. Kentucky, the Court ruled that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation.  Here, Padilla was working as a commercial truck driver when he was arrested in Kentucky for transporting marijuana. His lawyer advised him that there would be no negative consequences for his immigration status if he accepted a plea bargain in the drug case, and so he did. However, this advice was incorrect, and Padilla was subject to deportation because of his guilty plea.  Padilla then filed a pro se motion for post-conviction relief, alleging that he had gotten bad advice from his attorney.

I feel the Supreme Court should not have had to make this clear.  It should be a matter of basic ethics for a defense attorney, or any attorney for that matter, to notify their clients correctly about consequences.  We are taught in law school to be advocates for our clients.  Shouldn’t this fall in the scope of the client’s best interests?  I’m glad this landmark case clarified and gave attorneys around the nation a reality check!

It will be interesting to hear Mr. Vargas’ thoughts on immigration-related decisions issued during the last term and immigration-related certiorari grants to be argued during the 2010-2011 term.  


For more information about Thursday’s event please visit the CLORE Facebook page at: http://www.facebook.com/group.php?gid=122869794964