Court Requires Warning About Deportation Risk - NYTimes.com
RAD ~ Padilla v. Kentucky sets an important precedent (especially in states like NH that don't have a mandatory non-citizen warning statute or court rule like the other New England States)
By ADAM LIPTAK
Published: March 31, 2010
“It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel,” Justice Stevens wrote.
The vote was 7 to 2, though two justices in the majority would have required only that criminal defense lawyers not say anything false and tell their clients to consult an immigration lawyer if they had questions.
The question in the case, Padilla v. Kentucky, No. 08-651, was whether bad legal advice about a collateral consequence of a guilty plea could amount to ineffective assistance of counsel under the Sixth Amendment.
Justice Stevens said the answer was yes. Where the relevant immigration law is “succinct and straightforward,” he said, the defense lawyer must explain the consequences of a guilty plea. Otherwise, the lawyer “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”
“The importance of accurate legal advice for noncitizens accused of crimes has never been more important,” he wrote. “Deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”
Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined Justice Stevens’s opinion.
Click on the title to see the whole article at NYT.com
Showing posts with label deportation. Show all posts
Showing posts with label deportation. Show all posts
Thursday, April 1, 2010
Wednesday, February 3, 2010
Slain veteran’s family leaves U.S. as wife’s visa is set to expire | Stars and Stripes
Slain veteran’s family leaves U.S. as wife’s visa is set to expire Stars and Stripes
from Stripes.com -
Hotaru Ferschke said it was her husband’s wish that the child be raised as an American, but the State Department refuses to recognize the couple’s July 2008 marriage because it was never consummated.
Michael Ferschke, 22, a team leader with the Okinawa-based 3rd Reconnaissance Battalion, 3rd Marine Division, married his wife by telephone during a deployment to Iraq and was killed a month later while conducting house-to-house searches.
His wife and son moved from Okinawa in February to live with Ferschke’s family in Maryville. But without recognition of a legal marriage, they faced deportation when her one-year visa expired.
The Ferschke family had been holding out hope on two bills introduced in Congress last year.
Rep. John Duncan, R-Tenn., sponsored a House bill to give permanent residency status to Hotaru Ferschke. A similar bill was sponsored in the Senate by Jim Webb, D-Va., Bob Corker and Lamar Alexander, R-Tenn., and Mark Udall, D-Colo.
As of Friday, the bill was still in committee in both the House and Senate.
RAD ~ This is another aspect of our enforcement happy immigration policy in the US of A. If you take a look at how these Senators and Congressmen voted on various immigration reform bills in the past how do you suppose it would jibe with their efforts on behalf of this family?
from Stripes.com -
Michael Ferschke, 22, a team leader with the Okinawa-based 3rd Reconnaissance Battalion, 3rd Marine Division, married his wife by telephone during a deployment to Iraq and was killed a month later while conducting house-to-house searches.
His wife and son moved from Okinawa in February to live with Ferschke’s family in Maryville. But without recognition of a legal marriage, they faced deportation when her one-year visa expired.
The Ferschke family had been holding out hope on two bills introduced in Congress last year.
Rep. John Duncan, R-Tenn., sponsored a House bill to give permanent residency status to Hotaru Ferschke. A similar bill was sponsored in the Senate by Jim Webb, D-Va., Bob Corker and Lamar Alexander, R-Tenn., and Mark Udall, D-Colo.
As of Friday, the bill was still in committee in both the House and Senate.
RAD ~ This is another aspect of our enforcement happy immigration policy in the US of A. If you take a look at how these Senators and Congressmen voted on various immigration reform bills in the past how do you suppose it would jibe with their efforts on behalf of this family?
Monday, December 21, 2009
MyrtleBeachOnline.com | 12/20/2009 | Deported adults leave U.S. citizen children behind
MyrtleBeachOnline.com | 12/20/2009 | Deported adults leave U.S. citizen children behind
Here's an all too typical story of how Congress (in an effort to look tough on illegal immigration) made poor public policy by removing discretion from immigration enforcement and immigration judges.
It happens all the time - not just in the immigration context. The war on drugs with its diparate treatment of "crack" cocaine offenders; the federal "three strikes" policy; mandatory federal sentencing guidelines. All of these expressions of Congressional bravado have been revisited over time because of their unfair or self-defeating effects in the real world outside Washington, D.C.
Law enforcement and judges need to have the ability (known as discretion) to decide how to apply and enforce the law under differing circumstances. This article discusses parents who have lived in the United States for close to 30 years raising a family of two U.S. born children (one heading off to college) - there is no discussion of these people being criminals or on welfare or not paying taxes or running up bills at the emergency room. They even have other family who have filed papers to get them legal status more than 10 years ago.
This should be an easy case...where the factors in favor of letting the family stay together outweigh the harms of the violation of the immigration law. Other cases may not be so easy, but the law gives the enforcement officers and the immigration judge's almost no ability to take each such case on its own merits. It's time to rethink that policy as well.
It is time for Congress to stop trying to look like tough guys and to give the people who actually do the work of immigration back the tools they need to do their jobs wisely.
Here's an all too typical story of how Congress (in an effort to look tough on illegal immigration) made poor public policy by removing discretion from immigration enforcement and immigration judges.
It happens all the time - not just in the immigration context. The war on drugs with its diparate treatment of "crack" cocaine offenders; the federal "three strikes" policy; mandatory federal sentencing guidelines. All of these expressions of Congressional bravado have been revisited over time because of their unfair or self-defeating effects in the real world outside Washington, D.C.
Law enforcement and judges need to have the ability (known as discretion) to decide how to apply and enforce the law under differing circumstances. This article discusses parents who have lived in the United States for close to 30 years raising a family of two U.S. born children (one heading off to college) - there is no discussion of these people being criminals or on welfare or not paying taxes or running up bills at the emergency room. They even have other family who have filed papers to get them legal status more than 10 years ago.
This should be an easy case...where the factors in favor of letting the family stay together outweigh the harms of the violation of the immigration law. Other cases may not be so easy, but the law gives the enforcement officers and the immigration judge's almost no ability to take each such case on its own merits. It's time to rethink that policy as well.
It is time for Congress to stop trying to look like tough guys and to give the people who actually do the work of immigration back the tools they need to do their jobs wisely.
Thursday, December 3, 2009
Immigration Detention System Lapses Detailed - NYTimes.com
Immigration Detention System Lapses Detailed - NYTimes.com
Growing numbers of noncitizens, including legal immigrants, are held unnecessarily and transferred heedlessly in an expensive immigration detention system that denies many of them basic fairness, a bipartisan study group and a human rights organization concluded in reports released jointly on Wednesday.
RAD~This is not news to immigration attorneys or the families of immigrants - but thanks Nina Bernstein, the Constitution Project, and Human Rights Watch for putting this system, and its flaws, in the public eye.
Growing numbers of noncitizens, including legal immigrants, are held unnecessarily and transferred heedlessly in an expensive immigration detention system that denies many of them basic fairness, a bipartisan study group and a human rights organization concluded in reports released jointly on Wednesday.
RAD~This is not news to immigration attorneys or the families of immigrants - but thanks Nina Bernstein, the Constitution Project, and Human Rights Watch for putting this system, and its flaws, in the public eye.
Monday, November 16, 2009
Dad in 'balloon boy' case turns himself in - CNN.com
Dad in 'balloon boy' case turns himself in - CNN.com
What's this got to do with immigration?
Here's a snippet from the article --
The threat of deportation for Mayumi Heene was a factor in the plea deal negotiation, the attorney's statement said.
"Mayumi Heene is a citizen of Japan. As such, any felony conviction or certain misdemeanors would result in her deportation, even though her husband and children are Americans," the statement said.
"It is supremely ironic that law enforcement has expressed such grave concern over the welfare of the children, but it was ultimately the threat of taking the children's mother from the family and deporting her to Japan which fueled this deal."
Prosecutors in the case could not be immediately reached for comment.
What's this got to do with immigration?
Here's a snippet from the article --
The threat of deportation for Mayumi Heene was a factor in the plea deal negotiation, the attorney's statement said.
"Mayumi Heene is a citizen of Japan. As such, any felony conviction or certain misdemeanors would result in her deportation, even though her husband and children are Americans," the statement said.
"It is supremely ironic that law enforcement has expressed such grave concern over the welfare of the children, but it was ultimately the threat of taking the children's mother from the family and deporting her to Japan which fueled this deal."
Prosecutors in the case could not be immediately reached for comment.
Monday, October 26, 2009
ImmigrationProf Blog: Sacramento Police Chief: It's time to legalize millions of undocumented immigrants who are productive, law-abiding citizens - the public's safety depends on it
ImmigrationProf Blog: Sacramento Police Chief: It's time to legalize millions of undocumented immigrants who are productive, law-abiding citizens - the public's safety depends on it
Sacramento Police Chief Rick Braziel has joined other chiefs in the nation in calling for an immigration overhaul that considers legalizing millions of undocumented immigrants.
Braziel said Congress must take a two-pronged approach: tighter borders and a way to allow undocumented immigrants who are productive to stay in the U.S. legally. Now, many are afraid to assist in criminal investigations, Braziel said.
"We need to remember that there are at least 12 million people out there who are unauthorized to be in this country, and they're our neighbors," Braziel said during a telephone press conference Thursday with police officials from Iowa and Texas.
"They're the ones that live down the street, participate in our communities, send children to our schools."
Their fear of deportation is putting the general public at risk, Braziel said. He told the story of a couple rear-ended by a drunk driver. "Prior to the police showing up, all of the witnesses left," Braziel said, "And the reason they left is because none of them had legal status in this country."
To read the rest you can check out the Immprof blog or go straight to the Sacramento Bee
http://www.sacbee.com/government/story/2275917.html
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
Monday, August 31, 2009
ICE Deports another US Citizen
Here is a link to a story in the Charlotte Observer (you can also see it on the BIBDaily). Sometimes you see only what you want to see. Mr. Lyttle (the "victim" in this sordid matter) did not cover himself in glory either...but it seems like doing the job correctly in this case was just a "Lyttle" too much for ICE.
http://www.charlotteobserver.com/topstories/story/917007.html
http://www.bibdaily.com/
http://www.charlotteobserver.com/topstories/story/917007.html
http://www.bibdaily.com/
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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