Thursday, March 31, 2011

Stopping Deportations Before They Start

From Raj Jayadev (SV De-Bug) and Angie Junck (Immigrant Legal Resource Center)

This week marks the one-year anniversary of Padilla v. Kentucky – arguably the most important U.S. Supreme Court decision to date in terms of the nexus between local criminal courts and federal immigration laws. This is also the first week of renewed freedom for Jeysson Minota, a 28-year-old legal permanent resident from Colombia who had been in and out of federal detention centers for the past four years due to charges stemming from graffiti. His detention and his ultimate freedom tell the story of the need and possibility of the Padilla standard.

In the Padilla case, the Supreme Court held that the Constitution requires that criminal defense counsel provide affirmative and competent advice on the immigration consequences of a criminal disposition to noncitizen defendants. The advice is critical to defendants like Minota.

The criminal act that got Minota in the scopes of Homeland Security was vandalism. As a younger man, Minota was a graffiti artist and had plead to a felony charge of vandalism. Immigration and enforcement claimed that vandalism is a ”crime of moral turpitude,” thus being a deportable offense, even though Minota was a greencard holder.

Had his previous lawyers informed Minota that a guilty plea could lead to deportation, he may not have been in detention for four years. Because he did not plead guilty to his more recent misdemeanor criminal charge he was able to eventually win another green card and a new start in the United States, in immigration court. Had he plead guilty to the seemingly innocuous charge, one that would have carried no extra jail time, it would have been equivalent to an immigration death sentence triggering permanent deportation and separation from his U.S. citizen wife, two children, mother, and siblings. Instead, Minota took his case to trial, and with the advocacy of his public defender, was found innocent. The win gave his immigration attorney a shot to keep him in this country.

But as with any legal device, the decision from Padilla v. Kentucky is a measure of protection that only has value if exercised. There are two glaring and systemic roadblocks that make cases like Minota’s, even with the Padilla decision, more the exception than the rule. Both though can be overcome through legal education and expanding the lens of community advocacy. Read more...

bh

https://lawprofessors.typepad.com/immigration/2011/03/stopping-deportations-before-they-start.html

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