It is so important for immigration and criminal defense attorneys to work together and for non citizens to be aware of the potential immigration consequences of criminal charges.
Stopping Deportations Before They Start – How Advocates Can Protect Immigrants Facing Criminal Charges
Silicon Valley De-Bug • Op-Ed • Angie Junck, Raj Jayadev • March 30, 2011 On the heels of the one-year anniversary of a historic Supreme Court decision, attorney Angie Junck and organizer Raj Jayadev share lessons learned from a case of a San Jose man who beat a deportation order.
This week marks the one-year anniversary of Padilla v. Kentucky – arguably the most important U.S. Supreme Court decision to date in terms of the nexus between local criminal courts and federal immigration laws. This is also the first week of renewed freedom for Jeysson Minota, a 28-year-old legal permanent resident from Colombia who had been in and out of federal detention centers for the past four years due to charges stemming from graffiti. His detention and his ultimate freedom tell the story of the need and possibility of the Padilla standard.
In the Padilla case, the Supreme Court held that the Constitution requires that criminal defense counsel provide affirmative and competent advice on the immigration consequences of a criminal disposition to noncitizen defendants. The advice is critical to defendants like Minota.
The criminal act that got Minota in the scopes of Homeland Security was vandalism. As a younger man, Minota was a graffiti artist and had plead to a felony charge of vandalism. Immigration and enforcement claimed that vandalism is a ”crime of moral turpitude,” thus being a deportable offense, even though Minota was a greencard holder.
Had his previous lawyers informed Minota that a guilty plea could lead to deportation, he may not have been in detention for four years. Because he did not plead guilty to his more recent misdemeanor criminal charge he was able to eventually win another green card and a new start in the United States, in immigration court. Had he plead guilty to the seemingly innocuous charge, one that would have carried no extra jail time, it would have been equivalent to an immigration death sentence triggering permanent deportation and separation from his U.S. citizen wife, two children, mother, and siblings.
Instead, Minota took his case to trial, and with the advocacy of his public defender, was found innocent. The win gave his immigration attorney a shot to keep him in this country.
But as with any legal device, the decision from Padilla v. Kentucky is a measure of protection that only has value if exercised. There are two glaring and systemic roadblocks that make cases like Minota’s, even with the Padilla decision, more the exception than the rule. Both though can be overcome through legal education and expanding the lens of community advocacy.
Strip away the political value judgments around constitutional protections for immigrants, and you are still left with overly-impacted criminal courts. The reality is guilty pleas, early and often, are perhaps all that prevents the county court systems from bursting at the seams. In fact, less than five percent of all felony cases across the country ever reach the trial stage. Consequently, one of the most fundamental rights afforded to the accused – the right to a public hearing – is circumvented on a daily basis.
For those without immigration consequences plea deals may be the best option in order to receive a lighter sentence, but for those like Minota it is a decision often born out of the pressure and isolation of the experience, and one they may come to regret. In Santa Clara County in 2008, where Minota faced criminal charges, the District Attorney’s office tried only 260 cases (including both misdemeanor and felony cases) out of roughly 30,000 cases. That is less than one percent, meaning the immigration fates of immigrants who are part of that pool of defendants were sealed well before they faced an immigration judge.
Immigrants are often represented by the Public Defender’s office. Public Defender offices across the country appoint attorneys to the indigent — those without the resources to hire a private attorney. In California, 90 percent of all the accused are represented by some form of publicly-appointed counsel. Often times publicly-appointed attorneys have an overwhelming number of cases to juggle compared to private attorneys who choose their own dockets and workload. Consequently, there is an incentive for public attorneys to encourage their clients to plead, rather than take the time for investigation, motions and defense construction for a trial.
In Santa Clara County the Public Defender’s office does not staff all misdemeanor arraignment courts, a key stage where pleas are being entered and where immigrants are digging their own deportation graves. In these settings immigrant defendants, unless they’ve retained private counsel, would not have an attorney to consult with to understand the potentially life altering consequences of the plea they enter.
The second systemic hurdle which makes the enforcement of Padilla difficult is a simple one: Who will hold defense attorneys responsible to meet that criteria? Minota’s case was unique in that he had the help of a community organization that actively challenged his defense attorney to take into account his immigration status, and an immigration attorney who could advise the criminal attorneys. The organization supporting Minota, Silicon Valley De-Bug, his family and his immigration attorney Angie Junck of the Immigrant Legal Resource Center met weekly to assess the status of the case and develop strategies. Minota says, “I knew I could continue to fight because I knew I had people on the outside that were fighting for me.”
The notion of community involvement — communicating with lawyers, reviewing paperwork, attending court hearings — in criminal or immigration cases is currently not common practice, particularly in immigrant communities. The Padilla standard may be a lever to make defense counsel better protect the rights of immigrants, but there have to be people to pull it.
The lessons learned from Minota’s case then are two-fold: The criminal defense bar, particularly public attorneys on immigration matters, need to be educated on immigration consequences to criminal charges and immigrant advocate groups need to see criminal courts as a central space for advocacy to keep families together in this country. That is why the Immigration Legal Resource Center advocates for institutionalizing immigration protocols and resources in defense offices so that defending noncitizens with immigration consequences in mind becomes an integral and ongoing part of criminal defense practice. It is also why Silicon Valley De-Bug is encouraging immigrant advocacy groups across the country to meet with the public defender offices within their counties, to both hold them accountable and to encourage and support their vigilance.
Minota’s freedom is a testament to what is possible when both approaches are employed.
Raj Jayadev is the Director of Silicon Valley De-Bug and a Soros Justice Fellow. Angie Junck is a staff attorney for the Immigrant Legal Resource Center.
The Immigrant Legal Resource Center identifies and mentors immigration point persons within defense offices, creates written reference resources, and provides ongoing training and technical assistance to help defenders effectively represent immigrants against the adverse consequences of criminal dispositions.
Silicon Valley De-Bug, through the Albert Cobarrubias Justice Project, works to empower families who have had direct contact criminal and immigration laws. They are currently equipping community hubs — churches, ethnic community centers, neighborhood associations — with the tools and information needed to provide sustained support for a loved one who may be detained.
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