It’s been 7 years since the Supreme Court ruled, in Padilla v. Kentucky, that it is ineffective assistance for defense counsel to fail to warn their client of the adverse immigration consequences of a proposed guilty plea, and yet, such failures continue to take place with shocking frequency. Unfortunately, the first time many learn their seemingly favorable plea bargain subjects them to deportation – removal, is after they are taken into ICE custody and are facing deportation. Often, the only way for them to avoid being deported is to go back to criminal court and try to vacate their conviction.
This past Friday, our CPL 440.10 motion to vacate our client’s misdemeanor conviction was granted, based on ineffective assistance of counsel. We convinced the Judge and District Attorney’s Office that if prior counsel had been aware the plea he negotiated would subject his client to deportation, he could easily have negotiated an alternate, non-deportable plea. We then negotiated a plea to a lesser offense, and our client is now eligible for cancellation of removal as a non-permanent resident.
In far too many cases, a plea blindly entered into, subjects a lawful permanent resident to deportation, or renders an undocumented client ineligible for cancellation of removal. A major part of our practice involves guiding defense counsel and their clients safely through the immigration minefield; other times, as here, our familiarity with criminal-immigration law enables us to vacate a conviction and so help our clients avoid being deported.
Last week, I was asked to speak at an event for the Criminal Defense Bar in Suffolk County. The lecture was on Strategies to Avoid Triggering Deportation for Non-citizen Defendants. Padilla v. Kentucky mandated defense attorneys advise their non-citizen clients of the adverse immigration consequences of a proposed plea bargain. How can they do it if they themselves don’t understand the complex interplay between criminal and immigration law? Always an honor to be asked to share my experience in this field with my fellow criminal defense attorneys.
In the past month, we successfully vacated two criminal convictions for our clients, and as a result, their deportation-removal proceedings will be terminated.
One client lost his Temporary Protected Status (“TPS”), because his defense attorney failed to warn him that pleading guilty to a second misdemeanor would render him removable. After pleading guilty, the client was placed into removal proceedings. After we filed a 440 Motion with the Criminal Court, the Judge granted our motion to vacate his conviction, finding that prior counsel’s failure to warn our client of the direct immigration consequences of his guilty plea, violated the Supreme Court’s decision in Padilla v. Kentucky, which requires defense attorneys to warn their clients of the immigration consequences of a proposed guilty plea. The Criminal Court Judge found defense counsel’s ineffective assistance prevented our client from making an informed decision on whether to plead guilty. Our client is now eligible to reapply for Temporary Protected Status, and we will be moving the Immigration Court to terminate his removal proceedings. Continue reading →
Conviction for Endangering the Welfare of a Child Triggers
Deportability-Removability for Lawful Permanent Residents
Yesterday, February 9th, 2016, the Board of Immigration Appeals issued a precedent decision in the Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016), holding that a conviction for endangering the welfare of a child, pursuant to N.Y.S. P.L. §260.10(1), is categorically, a conviction for a “crime of child abuse, child neglect or child abandonment” as that term is used at Immigration and Nationality Act (“INA”) §237(a)(2)(E)(i). Under that immigration statute, a conviction for a “crime of child abuse, child neglect or child abandonment” renders a lawful permanent resident subject to deportation. Under certain circumstances, a lawful permanent resident who has committed a deportable offense, and who satisfies other conditions, may be eligible for discretionary relief from deportation in the form of cancellation of removal. Continue reading →
Winston Churchill said we should “Never Surrender”, and he was right.
Too often attorneys see a non-citizen, especially a lawful permanent resident, who is charged with an aggravated felony conviction, and they simply turn the case away because they believe nothing can be done for the person, but that is often just not true. Sure, aggravated felony cases are the hardest to win, but the reality is they can be successfully defended, although we can’t win them all, we have saved many clients with seemingly hopeless deportation-removal cases.
We realize even good people sometimes make serious mistakes. Often they’ve accepted responsibility for what they’ve done. They’ve pled guilty to a felony, served a prison sentence, and in many instances have gone on to change their lives for the better. Then one day there’s a knock at the door, the person is taken into custody by I.C.E. and they face the true terror of deportation proceedings: mandatory detention, immigration court, and the threat of being deported and separated from their home and families. In many cases, the person came to the U.S. as a child. They have had no contact with their native country and have no prospects for employment. They face a life of misery and isolation if deported, and their families in the U.S. will also suffer. That is why it is so important to fight these cases, and to win. Here are some recent examples. Continue reading →
Our client, a Salvadoran male, had been living in the U.S. since 1992. In 2001 he qualified for, and received, a grant of Temporary Protected Status (“T.P.S.”). In 2009, he was arrested for a serious felony. His defense attorney had him pleadguilty to a lesser felony, and obtained a sentence of probation, but failed to warn his client that by pleading guilty to a felony, he would lose his T.P.S.. His defense attorney wasn’t familiar with immigration law: he had no idea a conviction for a felony would automatically cost his client his T.P.S.. Continue reading →