Recently, the U.S. District Court in Alexandria, Virginia took up the issue of whether the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively. The Court held that Padilla announced a "new" rule because the failure of counsel to advise the defendant of the risk of deportation would not have been unreasonable at the time the defendant's conviction became final. Additionally, the Court held that none of the retroactivity exceptions identified in Teague v. Lane, 489 U.S. 288 (1989), were applicable to Padilla.
Read the opinion here.
Federal courts across the country are grappling with this issue and reaching widely different conclusions:
Finding Padilla Retroactive:
United States v. Zhong Lin - Western District of Kentucky.
Read the opinion in its entirety here.
Martin v. United States - Central District of Illinois.
Read the opinion in its entirety here.
United States v. Chaidez - Northern District of Illinois.
Read the opinion in its entirety here.
Finding Padilla Not Retroactive:
United States v. Perez - District of Nebraska.
Read the opinion in its entirety here.
United States v. Shafeek - Eastern District of Michigan.
Read the opinion in its entirety here.
Showing posts with label Consequences of Criminal Conviction. Show all posts
Showing posts with label Consequences of Criminal Conviction. Show all posts
Wednesday, February 9, 2011
Virginia Supreme Court Denies Audita Querela & Coram Nobis Post-Conviction Relief
In January, the Virginia Supreme Court issued its decision in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan). At issue were two ancient writs, the writ of audita querela and the writ of coram nobis, which Morris and Chan argued were available to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation.
The Court held that the write of audita querela was simply not an available form of post-conviction relief in Virginia, despite its availability in a number of other jurisdictions. The Court also held that ineffective assistance of counsel did not constitute and error in fact for the purposes of the writ of coram nobis.
Read the opinion here.
Read Washington Post article here.
The Court held that the write of audita querela was simply not an available form of post-conviction relief in Virginia, despite its availability in a number of other jurisdictions. The Court also held that ineffective assistance of counsel did not constitute and error in fact for the purposes of the writ of coram nobis.
Read the opinion here.
Read Washington Post article here.
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.
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.
Monday, August 23, 2010
ICE Announces Civil Enforcement Priorities
In a memo released June 30, 2010, Immigration and Customs Enforcement (better known as ICE) formally announced its priority system for enforcing civil immigration laws.
The memo, penned by ICE Assistant Secretary John Morton, notes that ICE only has sufficient resources to remove about 400,000 aliens (less than 4% of the estimated illegal alien population) per year. As a result, ICE now has a priority system for allocating its resources.
According to the memo, the following three categories represent ICE's civil enforcement priorities, with (1) being the top priority and (2) & (3) constituting equal but lesser priorities:
(1) Aliens who pose a danger to national security or a risk to public safety;
(3) Aliens who are fugitives or otherwise obstruct immigration controls.
The priority system set out in the memo suggests that the number of removal actions against "criminal aliens" may soon be on the rise. Additionally, the new policy makes it all the more important that attorneys understand the immigration consequences of criminal convictions for their clients.
Click here to read the memo in full.
The memo, penned by ICE Assistant Secretary John Morton, notes that ICE only has sufficient resources to remove about 400,000 aliens (less than 4% of the estimated illegal alien population) per year. As a result, ICE now has a priority system for allocating its resources.
According to the memo, the following three categories represent ICE's civil enforcement priorities, with (1) being the top priority and (2) & (3) constituting equal but lesser priorities:
(1) Aliens who pose a danger to national security or a risk to public safety;
- This category includes:
- Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
- Aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders;
- Where aliens convicted of crimes are concerned, the memo instructs ICE personnel to refer to the new Secure Communities Program offense levels, with Level 1 & 2 offenders receiving principal attention.
- The Levels are as follows:
- Level I : aliens convicted of"aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies";
- Level 2: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors"; and
- Level 3: aliens convicted of crimes punishable by less than one year.
- Aliens not younger than 16 years of age who participate in organized criminal gangs;
- Aliens subject to outstanding criminal warrants; and
- Aliens who otherwise pose a serious risk to public safety.
(3) Aliens who are fugitives or otherwise obstruct immigration controls.
The priority system set out in the memo suggests that the number of removal actions against "criminal aliens" may soon be on the rise. Additionally, the new policy makes it all the more important that attorneys understand the immigration consequences of criminal convictions for their clients.
Click here to read the memo in full.
Wednesday, August 18, 2010
Padilla v. Kentucky
As immigration practitioners undoubtably know, immigration law is often quite severe when it comes to the consequences of criminal convictions. Unbenownst to many criminal law practitioners, the unique severity of deportation often turns a seemingly advantageous plea deal into an immigration nightmare.
On March 31, 2010, the U.S. Supreme Court addressed this issue and held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. Writing for the majority, Justice Stevens stated that, "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."
As the Court noted, immigration law is notoriously complex. The Immigration group welcomes referrals and consultations on the immigration consequences of criminal convictions.
To learn more about Padilla, read the opinion and a practice advisory.
On March 31, 2010, the U.S. Supreme Court addressed this issue and held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. Writing for the majority, Justice Stevens stated that, "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."
As the Court noted, immigration law is notoriously complex. The Immigration group welcomes referrals and consultations on the immigration consequences of criminal convictions.
To learn more about Padilla, read the opinion and a practice advisory.
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