For those intrepid few who wanted to follow up on the cases listed as "attached" at the end of my presentation here are the links:
Padilla v. Kentucky
Matter of Cota
Matter of Perez Ramirez
Matter of Pickering
Matter of Adetiba
Carachuri Rosendo v. Holder (decision forthcoming from SCOTUS)
Lopez v. Gonzales
Matter of Yanez
Matter of Torres Varela
Matter of Lopez Meza
Hope you enjoy the reading!
Showing posts with label criminal. Show all posts
Showing posts with label criminal. Show all posts
Tuesday, April 20, 2010
Wednesday, March 3, 2010
The Associated Press: AZ may criminalize presence of illegal immigrants
The Associated Press: AZ may criminalize presence of illegal immigrants
PHOENIX — Over the past several years, immigration hard-liners at the Arizona Legislature persuaded their colleagues to criminalize the presence of illegal border-crossers in the state and ban soft immigration policies in police agencies — only to be thwarted by vetoes from a Democratic governor.
This year, their prospects have improved. A proposal to draw local police deeper into the fight against illegal immigration has momentum, and even opponents expect the new Republican governor to sign off on the changes.
The proposal would make Arizona the only state to criminalize the presence of illegal immigrants through an expansion of its trespassing law. It also would require police to try to determine people's immigration status when there's reasonable suspicion they are in the country illegally.
RAD~ I worked on cases like this in New Hampshire back in 2005. The local police chiefs in Hudson and New Ipswich decided to arrest people who could not prove their lawful immigration status for trespassing. I believe this is a bad policy - it is also unlawful because the admission, registration and control of aliens in the United States is an area of legal responsibility reserved to the federal government. The legal doctrine of preemption, therefore, applies to actions by states and municipalities who attempt to create and enforce their own individual laws on immigration. I am born and raised in NH and don't like to think of my state this way but clearly it is more than a coincidence that the only two states that have tried to criminalize undocumented immigrants as trespassers (New Hampshire and Arizona)were also among the very last states to recognize Martin Luther King Jr. Day.
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf
PHOENIX — Over the past several years, immigration hard-liners at the Arizona Legislature persuaded their colleagues to criminalize the presence of illegal border-crossers in the state and ban soft immigration policies in police agencies — only to be thwarted by vetoes from a Democratic governor.
This year, their prospects have improved. A proposal to draw local police deeper into the fight against illegal immigration has momentum, and even opponents expect the new Republican governor to sign off on the changes.
The proposal would make Arizona the only state to criminalize the presence of illegal immigrants through an expansion of its trespassing law. It also would require police to try to determine people's immigration status when there's reasonable suspicion they are in the country illegally.
RAD~ I worked on cases like this in New Hampshire back in 2005. The local police chiefs in Hudson and New Ipswich decided to arrest people who could not prove their lawful immigration status for trespassing. I believe this is a bad policy - it is also unlawful because the admission, registration and control of aliens in the United States is an area of legal responsibility reserved to the federal government. The legal doctrine of preemption, therefore, applies to actions by states and municipalities who attempt to create and enforce their own individual laws on immigration. I am born and raised in NH and don't like to think of my state this way but clearly it is more than a coincidence that the only two states that have tried to criminalize undocumented immigrants as trespassers (New Hampshire and Arizona)were also among the very last states to recognize Martin Luther King Jr. Day.
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf
Wednesday, October 21, 2009
Editorial Comment on Immigration Reform
Two reasons why pragmatism must trump passion on immigration reform
Think the health care reform debate got ugly? Well maybe so, but you may also have noticed that illegal immigration already made some cameo appearances in the health care debate. The August town hall debacle was perhaps just a glimpse of what awaits in this upcoming winter of our Congressional discontent.
Having practiced immigration law in New Hampshire for over a decade now, I can attest that our national immigration system is in dire need of an overhaul. With the lingering effects of recession pumping the brakes on both legal and illegal immigration – it is a good time to tackle the problem so that we can enjoy a glorious summer of economic recovery in 2010.
The Amnesty issue
Entering the United States without admission or inspection is a crime. To be precise, it is a class B misdemeanor under federal law – or what is called a “petty offense”. But you don’t have to take my word for it, you can read U.S. v. Sanchez, 258 F.Supp.2d 650 (S.D.Tex., 2003).
In this part of the country, a good percentage of the persons who are here unlawfully actually entered the United States legally but then failed to leave when they were supposed to – this does not constitute an actual criminal offense. Most of the time, however, these matters are not handled in criminal courts at all but rather as civil matters in administrative immigration courts set up within the Department of Justice. These administrative hearings are called Removal proceedings or more commonly known as Deportation.
Everyday we as a country deport non-citizens (some of whom have lived and worked here for decades) who are married to United States citizens and who have children born and raised here. In most cases these people cannot legally return to the United States for at least ten years. This country has the right to deport non-citizens who violate the law; however, that does not mean it is always in our best interests to do so. I personally don’t believe deportation should be the only government response to a petty criminal immigration offense or a civil immigration law violation.
Other options, such as legalization after paying a fine, have been proposed – but lately these have been shouted down as an amnesty. It should be noted that there are many people who would not qualify for such an “amnesty” due to a criminal record, other previous immigration violations, obtaining government benefits through fraud, lack of a qualifying relative or lack of prospective employment, etc. Such a plan is hardly a true amnesty if there is a fine assessed for the criminal behavior, unless one considers paying a speeding ticket an act of amnesty. Rather, it is a practical way to penalize people who have violated the law but then legalize the status of those whose removal from this country would do more harm than good.
The Demographic issue
The baby boom generation is beginning to reach retirement age. The US Census Bureau estimates that in 2010 there are five people of working age (18-64) to every person of retirement age (65+). Over the next twenty years that ratio is expected to drop to three to one.
From 2010 to 2030 the total number of persons of working age is expected to grow at an average rate of less than one million persons per year. This trend does not portend well for a growth economy or for public programs dependent on payroll taxes for funding – such as Medicare and Social Security.
The United States’ current immigration policies discourage foreign students from staying in this country to work once they have graduated from U.S. colleges and universities. The number of visas made available for skilled workers has also been curtailed over the past decade. It is all the more difficult to rebound from a recession if we attract and retain an ever shrinking number of the world’s best and brightest young workers, entrepreneurs and inventors. Perhaps you noticed that a majority of the American Nobel Prize winners this year were originally from somewhere else. [insert tasteless President Obama joke here]
Given the demographic trends, however, we may have a difficult time as a country producing enough homegrown labor for even semi-skilled or unskilled jobs. Just to maintain the current ratio of workers to retirees the country would need to increase immigration and guest worker levels to approximately seven million persons per year for the next twenty years. Even if we assume that greater numbers of people will continue working past age 65 due to increased longevity and decreased 401(k) balances – the US workforce will still have to be supplemented by a far greater numbers of foreign born workers than are present today if we are to avoid escalating payroll taxes and/or ever increasing budget deficits to cover entitlement programs.
It may be difficult to picture in these times when there already more people out of work than jobs to fill – but the numbers are looming out there for anyone who cares to look. The United States must get its immigration policy back on the track of welcoming the immigrants who have always been one of the great engines of our economic growth. More (not less) new immigrants, the businesses they start, the inventions they create and the work that they perform will make or break the middle-class of this country over the next twenty years.
http://www.census.gov/population/www/projections/files/nation/summary/np2008-t2.xls
Think the health care reform debate got ugly? Well maybe so, but you may also have noticed that illegal immigration already made some cameo appearances in the health care debate. The August town hall debacle was perhaps just a glimpse of what awaits in this upcoming winter of our Congressional discontent.
Having practiced immigration law in New Hampshire for over a decade now, I can attest that our national immigration system is in dire need of an overhaul. With the lingering effects of recession pumping the brakes on both legal and illegal immigration – it is a good time to tackle the problem so that we can enjoy a glorious summer of economic recovery in 2010.
The Amnesty issue
Entering the United States without admission or inspection is a crime. To be precise, it is a class B misdemeanor under federal law – or what is called a “petty offense”. But you don’t have to take my word for it, you can read U.S. v. Sanchez, 258 F.Supp.2d 650 (S.D.Tex., 2003).
In this part of the country, a good percentage of the persons who are here unlawfully actually entered the United States legally but then failed to leave when they were supposed to – this does not constitute an actual criminal offense. Most of the time, however, these matters are not handled in criminal courts at all but rather as civil matters in administrative immigration courts set up within the Department of Justice. These administrative hearings are called Removal proceedings or more commonly known as Deportation.
Everyday we as a country deport non-citizens (some of whom have lived and worked here for decades) who are married to United States citizens and who have children born and raised here. In most cases these people cannot legally return to the United States for at least ten years. This country has the right to deport non-citizens who violate the law; however, that does not mean it is always in our best interests to do so. I personally don’t believe deportation should be the only government response to a petty criminal immigration offense or a civil immigration law violation.
Other options, such as legalization after paying a fine, have been proposed – but lately these have been shouted down as an amnesty. It should be noted that there are many people who would not qualify for such an “amnesty” due to a criminal record, other previous immigration violations, obtaining government benefits through fraud, lack of a qualifying relative or lack of prospective employment, etc. Such a plan is hardly a true amnesty if there is a fine assessed for the criminal behavior, unless one considers paying a speeding ticket an act of amnesty. Rather, it is a practical way to penalize people who have violated the law but then legalize the status of those whose removal from this country would do more harm than good.
The Demographic issue
The baby boom generation is beginning to reach retirement age. The US Census Bureau estimates that in 2010 there are five people of working age (18-64) to every person of retirement age (65+). Over the next twenty years that ratio is expected to drop to three to one.
From 2010 to 2030 the total number of persons of working age is expected to grow at an average rate of less than one million persons per year. This trend does not portend well for a growth economy or for public programs dependent on payroll taxes for funding – such as Medicare and Social Security.
The United States’ current immigration policies discourage foreign students from staying in this country to work once they have graduated from U.S. colleges and universities. The number of visas made available for skilled workers has also been curtailed over the past decade. It is all the more difficult to rebound from a recession if we attract and retain an ever shrinking number of the world’s best and brightest young workers, entrepreneurs and inventors. Perhaps you noticed that a majority of the American Nobel Prize winners this year were originally from somewhere else. [insert tasteless President Obama joke here]
Given the demographic trends, however, we may have a difficult time as a country producing enough homegrown labor for even semi-skilled or unskilled jobs. Just to maintain the current ratio of workers to retirees the country would need to increase immigration and guest worker levels to approximately seven million persons per year for the next twenty years. Even if we assume that greater numbers of people will continue working past age 65 due to increased longevity and decreased 401(k) balances – the US workforce will still have to be supplemented by a far greater numbers of foreign born workers than are present today if we are to avoid escalating payroll taxes and/or ever increasing budget deficits to cover entitlement programs.
It may be difficult to picture in these times when there already more people out of work than jobs to fill – but the numbers are looming out there for anyone who cares to look. The United States must get its immigration policy back on the track of welcoming the immigrants who have always been one of the great engines of our economic growth. More (not less) new immigrants, the businesses they start, the inventions they create and the work that they perform will make or break the middle-class of this country over the next twenty years.
http://www.census.gov/population/www/projections/files/nation/summary/np2008-t2.xls
Friday, October 16, 2009
Immigration Impact » Blog Archive » U.S. Supreme Court Considers “Collateral Consequences” for Immigrants in Criminal Cases
Immigration Impact » Blog Archive » U.S. Supreme Court Considers “Collateral Consequences” for Immigrants in Criminal Cases
Will the Supreme Court decide that an attorney giving a client the wrong advice on the immigration consequences of a criminal conviction is grounds for withdrawing a guilty plea? That is what is at stake in the Padilla v. Kentucky case.
Here in New Hampshire -- I have had pretty good luck over the years in getting cases reopend when the client misunderstood the immigration consequences of his/her plea. Unlike other New England States, NH has no statutory requirement or court rule that a defendant be warned of the possible immigration consequences of a conviction.
However, a guilty plea does have to be made knowingly and voluntarily. A New Hampshire lawyer (or judge for that mater) has no duty to inform a defendant about immigration consequences. However, if the defendant convinces the judge that he/she only agreed to plead guilty to an offense because the attorney affirmatively told them that it would not result in deportation - that may be grounds for vacating the conviction.
Will the Supreme Court decide that an attorney giving a client the wrong advice on the immigration consequences of a criminal conviction is grounds for withdrawing a guilty plea? That is what is at stake in the Padilla v. Kentucky case.
Here in New Hampshire -- I have had pretty good luck over the years in getting cases reopend when the client misunderstood the immigration consequences of his/her plea. Unlike other New England States, NH has no statutory requirement or court rule that a defendant be warned of the possible immigration consequences of a conviction.
However, a guilty plea does have to be made knowingly and voluntarily. A New Hampshire lawyer (or judge for that mater) has no duty to inform a defendant about immigration consequences. However, if the defendant convinces the judge that he/she only agreed to plead guilty to an offense because the attorney affirmatively told them that it would not result in deportation - that may be grounds for vacating the conviction.
Thursday, June 25, 2009
“What part of illegal don’t you understand?”
That was a theme running through many of the letters and emails our office received, as well as in posts on various blogs, four years ago when we successfully defended clients charged with criminal trespass. Why criminal trespass? The cases arose when the Chiefs of Police in Hudson and New Ipswich, New Hampshire arrested and charged our clients because they did not have valid immigration status.
http://www.hispanic5.com/town_uses_trespas_law_to_fight_undocumented_immigrants.htm
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf
First, the part I do understand…
I understand that it is illegal for a non-citizen to enter the country without inspection; specifically, it is a class B misdemeanor or a “petty offense” as defined under federal immigration law and criminal law. This criminal provision of the law is, in my experience, seldom used except at the border. Rather, the cases are most often handled as civil matters. Most people who enter the United States without inspection and are later caught by Immigration & Customs Enforcement Officers are not charged with a crime – they are charged as being deportable from the United States. They go to a specialized administrative court called the Immigration Court, which is part of the Department of Justice.
Now here’s the part I don’t get…
With a very few exceptions, people who have lived here for decades get basically the same deal as those who illegally crossed the border last week. The petty offender gets nearly the same treatment as the very dangerous criminal – and that treatment is deportation. This is a problem. Why? You might ask. If they all broke the law they should be treated equally and get the same punishment right?
Wrong.
The United States has a “destroy the village to save the village” strategy when it comes to immigration policy. When we deport someone who has been here 10, 15, or even 20 plus years – that person often has a home, a business or a strong work history, and a family. So what is the result? It can often be a fire sale of the family home, a business closure or an employer who loses productivity while training a new worker, and U.S. born children that end up on public assistance or in foster care. For a class B misdemeanor? This is not smart public policy; it is self-defeating and unnecessary.
We have the right as a country to limit immigration levels and to secure our borders. However, that we have the right to deport persons from our soil if we wish does not mean that we should always do so. The United States needs some alternative remedies for dealing with immigration law violations. Alternatives that are not so destructive to the economy and the society that (through our laws) we claim to be trying to preserve.
In the 1990’s there was a program that allowed illegal immigrants to become legal residents if they had a U.S. citizen spouse or a U.S. employer to petition for them. They had to be otherwise admissible (meaning no serious criminal record, no communicable diseases, not likely to use public benefits, and no prior deportations, etc…) and they had to pay a $1,000.00 fine on top of the usual fees (over a thousand dollars each) the government charges immigrants to process their paperwork. That is called paying a fine for breaking the law; that is not amnesty -- unless you consider it an act of amnesty when you pay a speeding ticket.
Legalization of those immigrants who are not a danger to the public and who have family and employment ties to the United States would bring thousands of dollars per capita in fees to the U.S. Treasury ($24 billion perhaps). Investigating, detaining, trying and deporting a far smaller number of these same people each year costs the tax payers millions of dollars. There is no logic to inflicting emotional and financial damage on families and communities and to emptying the Treasury on account of the vast majority of illegal immigrants who are not terrorists or hardened criminals or otherwise undesirable. So why do we continue this way? It is time to change our approach.
http://www.hispanic5.com/town_uses_trespas_law_to_fight_undocumented_immigrants.htm
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf
First, the part I do understand…
I understand that it is illegal for a non-citizen to enter the country without inspection; specifically, it is a class B misdemeanor or a “petty offense” as defined under federal immigration law and criminal law. This criminal provision of the law is, in my experience, seldom used except at the border. Rather, the cases are most often handled as civil matters. Most people who enter the United States without inspection and are later caught by Immigration & Customs Enforcement Officers are not charged with a crime – they are charged as being deportable from the United States. They go to a specialized administrative court called the Immigration Court, which is part of the Department of Justice.
Now here’s the part I don’t get…
With a very few exceptions, people who have lived here for decades get basically the same deal as those who illegally crossed the border last week. The petty offender gets nearly the same treatment as the very dangerous criminal – and that treatment is deportation. This is a problem. Why? You might ask. If they all broke the law they should be treated equally and get the same punishment right?
Wrong.
The United States has a “destroy the village to save the village” strategy when it comes to immigration policy. When we deport someone who has been here 10, 15, or even 20 plus years – that person often has a home, a business or a strong work history, and a family. So what is the result? It can often be a fire sale of the family home, a business closure or an employer who loses productivity while training a new worker, and U.S. born children that end up on public assistance or in foster care. For a class B misdemeanor? This is not smart public policy; it is self-defeating and unnecessary.
We have the right as a country to limit immigration levels and to secure our borders. However, that we have the right to deport persons from our soil if we wish does not mean that we should always do so. The United States needs some alternative remedies for dealing with immigration law violations. Alternatives that are not so destructive to the economy and the society that (through our laws) we claim to be trying to preserve.
In the 1990’s there was a program that allowed illegal immigrants to become legal residents if they had a U.S. citizen spouse or a U.S. employer to petition for them. They had to be otherwise admissible (meaning no serious criminal record, no communicable diseases, not likely to use public benefits, and no prior deportations, etc…) and they had to pay a $1,000.00 fine on top of the usual fees (over a thousand dollars each) the government charges immigrants to process their paperwork. That is called paying a fine for breaking the law; that is not amnesty -- unless you consider it an act of amnesty when you pay a speeding ticket.
Legalization of those immigrants who are not a danger to the public and who have family and employment ties to the United States would bring thousands of dollars per capita in fees to the U.S. Treasury ($24 billion perhaps). Investigating, detaining, trying and deporting a far smaller number of these same people each year costs the tax payers millions of dollars. There is no logic to inflicting emotional and financial damage on families and communities and to emptying the Treasury on account of the vast majority of illegal immigrants who are not terrorists or hardened criminals or otherwise undesirable. So why do we continue this way? It is time to change our approach.
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