April 9, 2010

(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: Read More→

January 1, 2010

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)

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February 20, 2009

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.

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