Thursday, January 13, 2011

Fourth Circuit Ruling on Virginia's 1st Offender Deferred Adjudication (§18.2-251)

Recently, the Fourth Circuit issued an opinion in which the court held that a disposition for possession of marijuana under Virginia Code §18.2-251, a first offender deferred adjudication statute, did not constitute a “conviction” under INA §101(a)(48) where the Defendant did not plead guilty.

The government argued that the judicial finding of facts sufficient to justify a finding of guilt made by the judge under § 18.2-251 was the functional equivalent of a judge finding the alien “guilty” as required under § 1101(a)(48)(A)(i).  The court decided, however, that the plain language of the statute required an actual finding of guilt, not just a finding of facts sufficient to justify a finding of guilt.

This decision may be useful for planning purposes where a defendant must avoid a conviction but is eligible as a first offender.

Read the opinion here.

New Padilla Resources

The ABA's Criminal Justice Section recently announced the establishment of a Padilla Task Force, in response to the decision in Padilla v. Kentucky.  The task force aims to assist defense lawyers in fulfilling their counseling obligations under that decision.  With that goal in mind, the ABA now has a Padilla Resource Page that provides access to a number of helpful vidoe discussions, powerpoints, and guides for practitioners. 

Check out the ABA's Padilla Resource Page here.

Thursday, January 6, 2011

Court Orders Government to Provide Counsel to Mentally Incapacitated Aliens in Deportation Proceedings

As a general rule, aliens in deportation proceedings are not provided with legal counsel at taxpayer expense when they cannot afford to hire counsel on their own.

Recently, however, a Federal District Court Judge in California ordered the U.S. government to give a group of mentally incapacitated illegal immigrants legal representation to fight their deportations. In March, a group of attorneys and the ACLU of Southern California argued that the men's diminished mental capacities made them unable to represent their own interests.

The case involved a number of indigent, mentally incapacitated plaintiffs including Jose Franco-Gonzalez, 30, who spent nearly five years in immigration custody after pleading guilty to assault with a deadly weapon because authorities determined he was too mentally incompetent to represent himself in his own deportation hearings.  The U.S. District Court Judge hearing the case ruled that Franco and another plaintiff be released and that additional plaintiffs in the case be given representation for their hearings. 

Review the Complaint here.