Friday, April 9, 2010

Linda Greenhouse on Padilla v. Kentucky

As Kevin Johnson noted earlier, Linda Greenhouse's column in the NY Times yesterday, made some wonderful points about the decision in Padilla v. Kentucky and the deportation of longtime lawful perament residents:

The Supreme Court’s ruling recently that lawyers have a duty to warn their noncitizen clients about the potentially disastrous immigration consequences of pleading guilty to a criminal charge seemed so sensible that it left me wondering why a question with such an obvious answer needed to be debated by the Supreme Court in the first place. Surely if the Sixth Amendment’s guarantee of effective assistance of counsel means anything, it means that lawyers must advise their clients that admitting to even a minor offense can earn a noncitizen a quick one-way ticket into what immigration law delicately calls “removal proceedings.”

Before anyone objects that such individuals have no right to be in the country in the first place, I should make clear that today’s harshly anti-immigrant legal regime applies not only to the undocumented, but to permanent legal residents as well. Jose Padilla, the Honduran-born petitioner in the recent case, has lived legally in the United States for 40 years and served honorably in the military during the war in Vietnam. (This is a different Jose Padilla, not the American citizen whom the Bush administration held in a Navy brig as an enemy combatant for more than three years before he was convicted in federal court on charges of conspiring to commit terrorist acts.) . . . .

What on earth is going on here?

That question evidently occurred to Justice Ginsburg during an argument last week in Carachuri-Rosendo v. Holder, a case mentioned in Ms. Bernstein’s article about a single marijuana cigarette leading to deportation. Jose Carachuri-Rosendo, a legal United States resident born in Mexico, father of four children who are United States citizens, was arrested in Texas in 2004 for possession of less than two ounces of marijuana, a misdemeanor under Texas law. He pleaded guilty and was sentenced to 20 days in jail.

The next year, he was arrested for possession of a tablet of Xanax, a common anti-anxiety drug that requires a prescription, which Mr. Carachuri-Rosendo did not have. That offense, also a misdemeanor in Texas, earned him 10 days in jail. Under the federal government’s interpretation of the Immigration and Nationality Act, the combination of those two state-law misdemeanors amounts to an “aggravated felony.”

As an aggravated felon, the government argues, Mr. Carachuri-Rosendo is not only subject to deportation, but categorically ineligible for “cancellation of removal,” a form of administrative discretion that provides the only remaining safety net to immigrants caught in the deportation net.

During the argument on March 31, Justice Ginsburg had this to say to Nicole A. Saharsky, a lawyer from the solicitor general’s office:

“Here we are talking about two crimes. One is a small amount of marijuana. He gets 20 days in jail. The other is a pill that I never heard of, a Xan-something, and he gets what, 10 days in jail for that. If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say ‘Never, ever darken our doors again’ because of one marijuana cigarette and one Xan-something pill — it, it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute ….”  Click here for the entire piece.


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