(U.S. Supreme Court Decision, Padilla v. Kentucky, 539 U.S. ___ (2010), Decided Mar 31, 2010)

Immigration Counsel to Criminal Defense Attorneys and Aliens in Criminal Proceedings

In Padilla v. Kentucky, 539 U.S. ­­___ (2010), the Supreme Court held that noncitizen criminal defendants, pursuant to the Sixth Amendment right to effective assistance of counsel, have a constitutional right to competent legal advice concerning the deportation consequences of a prospective plea agreement. That is, under Padilla, criminal defense attorneys now have an affirmative duty to advise their noncitizen clients as to the possible immigration consequences (i.e. deportation or exclusion from the U.S.) associated with a particular criminal conviction.

In the United States, just under 95% of all criminal convictions are obtained as a result of some sort of plea agreement. Now, before a criminal defense attorney representing a noncitizen defendant negotiates a plea agreement, that attorney should be aware of the associated immigration consequences. Specifically, in certain circumstances that defense attorney has a constitutionally mandated duty to “inform a client whether his plea carries a risk of deportation.” In other words, the Supreme Court has explicitly brought deportation considerations into the plea-bargaining arena. Furnishing legal advice with respect to an alien’s acceptance or rejection of a plea agreement without an adequate understanding of the probable risk of deportation may render counsel’s conduct constitutionally defective, constituting ineffective assistance of counsel under the Sixth Amendment. Moreover, counsel’s failure to possess a rudimentary understanding of the relevant deportation statutes in certain limited situations may constitute almost per se ineffective assistance.

The Padilla decision is not limited to affirmative misadvice. Rather, as stated above, defense counsel has an affirmative obligation to understand the relevant immigration law before advising a noncitizen client. This affirmative duty is particularly important where the deportation statute at issue can be fairly characterized as “succinct, clear, and explicit in defining the removal consequence[s]” of a particular conviction. In such situations, defense counsel’s failure to properly admonish his client could be considered ineffective assistance per se. In addition to a plea agreement that never reaches its intended settlement result, such ineffective assistance may be grounds for a malpractice suit—imposing personal liability on defense counsel. As such, it is imperative that criminal defense attorneys be apprised of the relevant immigration rules and procedure.

Given the fact that judges presiding over contemporary removal proceedings have almost no equitable discretion, once a noncitizen has been convicted of a removable offense, that conviction will almost invariably result in the removal of the noncitizen convict. Thus, the Padilla Court reasoned, “[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important.” Criminal defense attorneys representing noncitizen defendants must be mindful of the fact that, more often than not, protecting the accused’s right to remain in the United States is more important than avoiding the criminal sentencing process.

Roby Law Associates offers criminal defense attorneys and aliens timely advice concerning the immigration consequences of proposed plea agreements. In order to provide counsel, you will be requested to provide the following:

I. Proposed Plea Agreement in Criminal Proceedings

1. Copy of the Proposed Plea Agreement.
2. Copy of complete Arrest Record.
3. Copy of police notes.
4. Copy of Ticket, if any.
5. Copy of complete Transcript(s) of Court Proceedings.
6. Indicate State or Federal Statutes under which Alien is being charge.
7. Indicate State or Federal statute(s) under which plea is being made.
8. Indicate maximum possible criminal penalty – incarceration and fine.

II. Records about Alien’s Prior History of Arrest, Detention, Charges Filed, Convictions, Alternative Sentencing, Participation in any Rehabilitative Program

If you have had any contact at all with law enforcement officers, anywhere, of any kind, U.S. or Foreign, we need to have a full history of your involvement with law enforcement authorities (including traffic/vehicular):

A. Prior Arrest or Detention by Law Enforcement Officer &
NO CHARGES WERE FILED

1. Copy of complete statement of arresting agency confirming that no charges were filed, or Copy of complete statement of applicable court order confirming that no charges were filed.

B. Prior Arrest or Detention
CHARGED FILED AGAINST YOU &
DISMISSAL or ACQUITTAL BY COURT OF LAW

1. Copy of complete Arrest Record.
2. Copy of record of outcome – dismissal or acquittal order.
3. Copy of police notes.
4. Copy of Ticket, if any.
5. Copy of complete Transcript of Court Proceedings.

C. Prior Arrest
PLEA OF GUILT or NO CONTEST (nolo contendere) &
CONVICTION BY COURT OF LAW

1. Copy of complete Arrest Record.
2. Copy of record of outcome – conviction record.
3. Copy of police notes.
4. Copy of Ticket, if any.
5. Copy of complete Transcript of Court Proceedings.
6. Copy of Court Record indicating completion of your sentence: Probation or Parole Record.

D. Prior Arrest
PLEA OF GUILT, RESPONSIBILITY or NO CONTEST or CONVICTION &
PLACED in ALTERNATIVE SENTENCING or REHABILITATIVE PROGRAM

1. Copy of complete Arrest Record.
2. Copy of record of outcome – record including alternative sentencing or rehabilitation program.
3. Copy of police notes.
4. Copy of Ticket, if any.
5. Copy of complete Transcript of Court Proceedings.
6. Copy of Court Record indicating completion of Alternative Sentencing or Rehabilitative Program.

We urge you to call or write Roby Law Associates for legal advice on the immigration consequences of an alien’s plea in criminal proceedings before the plea is negotiated to completion.

In recent and recurring political discussions about U.S. immigration reform, politicians of many different political persuasions as well as news commentators and pundits have been talking tough against “illegal immigrants.” As the number of undocumented immigrants in the United States continues to swell – eight, ten, or twelve million? – the lingering question of amnesty, the granting of legal status to undocumented immigrants, has emerged as a focus for criticism of new immigration plans. Politicians respond by forswearing any interest in any amnesty plan. No politician wants to appear to encourage “illegal,” undocumented status or to express sympathy with people who break American immigration laws to get into the United States.

Despite the political war of words and vitriolic rhetoric, amnesty has been a reality of U.S. immigration law since 1952 – more than 57 years. It is known as “registry” and allows undocumented immigrants who entered the United States prior to January 1, 1972 to be lawfully admitted to permanent residence if several conditions are met. First, the immigrant must have been living in the United States continuously since the first entry. Second, the immigrant must be “of good moral character.” Finally, the immigrant must not be otherwise inadmissible for reasons such as having a criminal conviction a supporting international terrorism. As in any immigration case, the immigrant must prove continuous residence and good moral character with documentation.

According to USCIS’s own website, Registry is located under the search term ” “Green Card Through Registry”(Click here to follow the link)

Registry is a section of immigration law that enables certain individuals who have been present in the United States since January 1, 1972 the ability to apply for a green card (permanent residence), even if they are currently in the United States unlawfully.

Eligibility Criteria

• You may be eligible to receive a green card (permanent residence) under the registry provisions if you meet all of the following conditions:
• You entered the United States prior to January 1, 1972
• You have resided in the United States continuously since January 1, 1972
• You are a person of good moral character
• You are not ineligible for naturalization (citizenship)
• You are not removable (deportable) under Section 237(a)(4)(B) the Immigration and Nationality Act (INA) (see “INA” link to the right)
• You are not inadmissible under Section 212(a)(3)(E) of the INA or as a criminal, procurer, other immoral person, subversive, violator of the narcotics laws or alien smuggler

Note: An individual applying under the registry provisions is not required to undergo a medical exam.”

The registry law is limited in its usefulness, however, because it has not been updated since 1986. It would be logical for Congress to bring registry up to date by changing the cut-off to January 1, 1995. However, given the current political climate, it’s not clear that this will happen anytime soon. Moreover, U.S. Citizenship and Immigration Services has an enormous backlog of applications for permanent residency from immigrants who have followed typical lawful methods of achieving permanent residency, such as family petitions, employment-based petitions, and special immigrant petitions such as juveniles and ministers. While an amnesty law is on the books, then, immigrants living in the United States without documentation would be ill-advised to rely on it as a means of achieving permanent residency and eventually citizenship.

In closing, we wish you Happy Holidays. Every year, we send to every one of you, our friends and colleagues alike, the following sincere greeting for happiness, peace and prosperity in the English, Spanish and German languages:

Dear Friends, that Christmas with its joy and nostalgia be an incentive to persist in the hope of a world living in peace, where children can laugh and dance, be educated and grow up free from the horrors of war and the limitations of poverty. May love, health and prosperity accompany you into the New Year.

Queridos amigos, que la Navidad con su alegría y su nostalgia sea un aliciente para persistir en la esperanza de un mundo en paz, donde los niños puedan reír y danzar, educarse y crecer libres de los horrores de la guerra y las limitaciones de la pobreza. Que el amor, la salud y la prosperidad los acompañen en este nuevo año.

Meine lieben Freunde, möge Weihnachten mit Freude und Nostalgie ein Anlass dazu sein, zu hoffen, dass die Welt in Frieden lebt, wo Kinder lachen und tanzen können, mit guter Schulausbildung aufwachsen können, und frei von Ängsten wegen Kriegen und Armut sein können. Wir wünschen Ihnen ein gutes neues Jahr mit Liebe, Gesundheit und Wohlergehen.

We welcome your opinions and comments. For your comments or more information, please forward them to Immigration Attorney Steven Roby, via email sbr[at]robylaw.com, call him at 248-554-8500, or write to him at: Steven B. Roby, Roby Law Associates, PLLC, 32022 Woodward Ave., Royal Oak, Michigan 48302.

Steven B. Roby, Attorney at Law
Erin Camargo, Paralegal

This past December, Michigan companies, universities, and the legal non-permanent resident aliens possessing federal government authorizations to work, study or receive training in our state received a shock from Attorney General Mike Cox when, apparently without any Federal immigration law counsel, he issued a binding opinion that Michigan driver’s licenses could only be issued to U.S. citizens and permanent residents. Foreign university students, multinational managers, executives and technology specialists transferred temporarily to companies in the U.S., temporary foreign professional workers, and other aliens lawfully present in Michigan for temporary assignments or studies suddenly had no access to an important government-issued identity document used in everyday American life.

On February 19, 2008, in response to pressure from affected companies, universities, and individuals, Governor Granholm signed House Bill No. 4505, intended to alleviate the problems caused for legal nonresidents of Michigan by Cox’s opinion. Michigan now considers someone to be a resident for licensing purposes if he or she “resides in this state and…is legally present in the United States,” an improvement over the prior opinion’s failure to recognize that legal presence is not limited to U.S. citizenship or permanent residence. However, the new law has some flaws that may turn out to be far-reaching and thus subject to widespread litigation.

First, and most important, the law states that Michigan driver’s licenses issued to legal aliens will expire “on the date the person is no longer considered to be legally present in the United States,” in contrast to a U.S. citizen or Permanent Resident license which will be valid for four years. The problem here is that some nonimmigrant statuses are short in duration – TN status, for instance, available to Canadians and Mexicans in certain professional fields since the NAFTA treaty, is generally valid for one year periods, requiring the worker to play an endless catch-up game between obtaining a yearly extension of nonimmigrant status (often in a lengthy mail-in process requiring three to four months) and annual driver’s license renewals. Spousal dependents of TN workers will feel the same frustration.

Most other temporary nonimmigrant statuses last only two or three years, creating similar problems at renewal time. However, U.S. immigration law allows temporary nonimmigrants in many nonimmigrant classifications to remain lawfully in the U.S. for 240 days past the expiration of their status documents so long as they have filed for a timely extension of stay application. This means that, even though lawfully present in the U.S., aliens waiting for an extension after the expiration of their status documents will have an expired driver license and no way of obtaining a new one.

A further problem is the common confusion, even among nonresidents themselves, between valid status (lawful presence in the U.S.) and a valid visa (a sticker in the passport allowing an alien to apply for admission to the U.S. at a Port of Entry). In E-1 Treaty Trader and E-2 Treaty Investor status, for instance, aliens may be issued a visa for up to a five year period by a consulate outside the U.S., allowing the alien to make multiple entries to the U.S. within that five year period. However, each time the E Treaty alien enters, he or she is granted lawful status for only two years from the date of entry, irrespective of the E visa’s actual expiration date. Moreover, the alien can enter the U.S. on the last day of visa validity and still be granted lawful status for two additional years of lawful status in the U.S. (without a visa stamp in the passport.) Will Secretary of State employees know which document governs status in all cases, or will errors be made that lead to headaches and lost productivity at work, not to mention unnecessary time in the Secretary of State office, for aliens caught up in regulatory dilemmas?

Even in the text of the bill, there is confusion regarding what documents confer lawful status. In Section 307, the bill provides that “a person legally present in the United States includes, but is not limited to, a person…who is the beneficiary of an approved immigrant visa petition or an approved labor certification.” This is not true. Neither of these documents provides lawful status in the United States. Aliens who are the beneficiaries of either of these documents must maintain some other valid, temporary status, such as H-1B professional worker or L-1 intracompany transferee, until the government allows them to apply for permanent residence (a green card) from within the U.S., sometimes years after the petition or labor certification is first filed. In fact, an alien who is the beneficiary of either or both an approved labor certification and immigrant visa petition may be outside the U.S., awaiting final step immigrant visa processing, without ever having obtained prior U.S. work authorization or admission to the U.S. in any nonimmigrant status. Will this person now be allowed to travel as a tourist to Michigan and obtain a driver’s license by the mere fact that he or she is the beneficiary of an approved Labor Certification application or employer-based Immigrant Petition? This person must still show evidence of admissibility and be issued a “Green Card” before being finally admitted to the U.S. as a resident alien.

Even further, the legislation ignores those who are admitted to or present in the U.S. as refugees and asylees – victims of persecution – or recipients of Temporary Protected Status (TPS), whose safe haven and protection is granted by USCIS. These individuals have a stake in obtaining a driver’s license. Each relief category grants permission to be present in the U.S. and afforded the protections of this country, but oftentimes beneficiaries are outside of immigrant and nonimmigrant visa categories contemplated by the enacted legislation.

Clearly, Secretary of State employees will need extensive training in order to determine which documents are valid status documents and which are not. What should have been done, and what will now be required of Secretary of State Land, is the identification of specific immigration categories and concomitant documents evidencing such immigration status in order to have the State authorize issuance of Michigan Driver’s licenses. I suggest that Secretary of State Land look at the latest version of U.S. Citizenship and Immigration Service’s (USCIS) Form I-9, which is the basic document used by all employers in the U.S. to verify the lawful status of new hire employees. She should consider adding a reasonable grace period of 240 days to the validity of any driver’s license issued to an alien in lawful status provided an extension of stay application has been filed with USCIS.

If the State of Michigan wants to limit driver licensing of aliens present in temporary immigration statuses, it should involve the stakeholders and their attorneys in the legislative process so that potential areas of confusion – and the resulting litigation – can be avoided.