31 Mar 2010
In the United States, the immigration system and the criminal system are closely, but inconspicuously, related. Attorneys and immigrants alike frequently fail to realize the potential ramifications for pleading guilty to a seemingly minor criminal charge. In some cases, a misdemeanor drug offense can lead to removal from the country, regardless of any other positive factors favoring allowing the immigrant to stay.
The Supreme Court is set to reconsider this issue in Carachuri-Rosendo v. Holder. Mr. Carachuri-Rosendo was a longtime legal resident of Texas, settled down with a fiancée and four children, all of whom are Unites States citizens. But, after he had a couple of convictions for possession of marijuana and a tablet of Xanax, a common anti-anxiety drug, he found himself deported back to Mexico, leaving the life he had known for years behind.
Another example of this is Mr. Lemaine, a case cited in amicus briefs dealing with the same issue as Mr. Carachuri-Rosendo. Mr. Lemaine came to the United States from Haiti at the age of three. As a teenager, he was caught with a small amount of marijuana, but this case was dropped. Then, in 2007, he was again caught with a small amount of marijuana, and his legal aid counsel advised him to enter a guilty plea, and agree to pay the mere $100 fine. This normally would seem like the best way to handle such a charge; however, neither party was aware that this had drastic consequences for his immigration status. Before he knew it, he was in handcuffs, on his way to Texas to face an immigration judge, and eventual deportation.
In neither of these cases, were the defendants able to raise defenses in their favor, such as how both have large amounts of family in the United States, with little to return to in their home country. Nor does it matter that, in the grand scheme of our criminal justice system, the charges that were brought against them are minor; neither seemed to pose any large threat to public safety.
For now, both defendants must wait for a ruling in Carachuri-Rosendo v. Holder, their last hope for staying in the United States and continuing the lives they have known.
18 Mar 2010
Legal Issue: How does the Sixth Amendment’s guarantee for effective assistance of counsel affect a non-citizen where on advice of his criminal defense attorney he pleads guilty to a charge that will cause mandatory deportation in-spite of the attorney’s assurance that deportation was not a consequence. Does this advice amount to ineffective assistance of counsel and allow the setting aside of the guilty plea?
(This case was heard by the Supreme Court in October of 2009 and should be decided in 2010).
6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Jose Padilla, a legal permanent resident, originally from Honduras has legally resided in the United States for forty years and served in the United States Army during Vietnam faces deportation after a plea bargain on drug charges. He was thoughtful enough to ask his counsel if his plea would effect his status and he was told that he “did not have to worry about immigration status since he had been in the country so long.” That statement could not be more wrong.
Mr. Padilla (no relationship to the al-Quida suspect) now faces permanent deportation from a country that has been the lawful home to him and his family for forty years. He has petitioned to set aside his guilty plea and go to trial. His case is now pending a decision by the U.S. Supreme Court.
On March 2, 2010, the Supreme Court decided in Johnson v. US, that a crime of simple battery is not a violent felony. Though this decision was based such a categorization for the purposes of sentance enhancement under the Armed Career Criminal Act (ACCA), this decision may provide precendent that can be applicable in many other areas of law.
The area of assault and battery has been a cause of headaches for attorneys, judges, and law students across the nation. Assault’s common law legal definition, contrary to the general use of the word, is, to put it simply, putting someone in fear of imminent harm. Battery, on the other hand, is the actual touching of the person. This touching, however, is simply qualified as “offensive touching.” Courts routinely note that a simple tapping of another can be grounds for a conviction for battery.
On the other hand, a crime of violence is generally defined as an offense where the use or the threat of use of physical force is an element. Being convicted of a crime of violence can have additional ramifications for the offender; for example, as in Mr. Johnson’s case, he was potentially subjected to a sentence enhancement for multiple violent convictions. In addition, conviction of for a crime of violence has ramifications for immigration purposes. An immigrant who has committed a crime of violence can be subjected to deportation, or prevented from asserted certain rights and defenses when applying for legal status.
Because of the amorphous definitions an act of touching, or threatening to touch someone can take under the categorizations of assault and battery, courts have struggled with whether such convictions should categorically qualify as a crime of violence.
The Supreme Court addressed the issue of simple battery in US v. Johnson, and held that is is not categorically a crime of violence, because such a conviction requires only an intent to touch, without the need to find injury to the victim: We think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force- that is, force capable of causing physical pain or injury to another person.”