Ruling may mean stay in deportation cases
By Andrew Wolfe
The Nashua Telegraph (NH), April 7, 2010
A U.S. Supreme Court ruling last week overturned a long-standing legal precedent in New Hampshire and could prompt immigrants facing deportation due to criminal convictions to seek to reopen their cases, a local immigration lawyer says.
Ruling in the case of a Kentucky trucker caught hauling a load of marijuana, the high court ordered that non-citizen immigrants legal or otherwise must be warned that they could face deportation upon conviction of a crime.
New Hampshire lawyers are split on the practical effect of the ruling, noting that defense lawyers and judges in southern New Hampshire already routinely advise defendants of their risk of deportation.
'I do it all the time. Ive been doing it since day one,' said Adam Bernstein of Nashua, a former public defender now in private practice in Nashua. Bernstein said he tells non-citizen clients, 'They ought to expect the worst and consult an immigration lawyer.'
The courts decision in Padilla vs. Kentucky means that deportation can no longer be considered merely a 'collateral' side issue to criminal cases, as New Hampshire and many other state courts have ruled, Manchester immigration lawyer Ronald Abramson said. That means that lawyers are now legally required to advise clients about potential consequences to their immigration status.
'This has changed from something that would be an advisable practice to a legal, constitutional requirement,' Abramson said. 'This case turns what has been sparse but settled New Hampshire law on its head.'
The ruling applies to both legal and illegal immigrants, though lawyers noted that deportation has always been a foregone conclusion for the latter.
Bernstein said hes never heard of any case in New Hampshire where defendant wasnt warned accordingly.
'All the defense lawyers that I know do it, and not only do the defense lawyers do it, the judges do it,' Bernstein said, adding of the U.S. Supreme Courts ruling, 'I dont think its going to have any effect in New Hampshire.'
Legal immigrants can face deportation for a wide variety of crimes, including many misdemeanors, and immigration law is both complicated and inflexible, Abramson notes.
Anyone sentenced to a year or longer even if the sentence is suspended is deemed guilty of an 'aggravated felony' under immigration law, Abramson said. Thus, a shoplifter who gets a 12-month suspended sentence would face deportation, while someone ordered to serve 10 months in jail for a violent assault might not, he said.
'In immigration courts, there is no discretion' about the classification of a crime, Abramson said, and there is no way to appeal based on particular, individual circumstances. 'That just doesnt exist. That is not available.'
The high courts March 31 ruling came in the case of Jose Padilla, one of the more than 12.8 million legal immigrants living in the U.S. (and not to be confused with the U.S. citizen of the same name who was convicted in 2007 of conspiring to aid terrorists.)
A Vietnam War veteran, Padilla had lived as a legal U.S. resident for 40 years before his arrest in 2001, when police found more than 1,000 pounds of marijuana in an 18-wheeler that he was driving.
Padilla pleaded guilty to a felony drug trafficking charge in exchange for a five-year prison sentence after his court-appointed lawyer told him it wouldnt affect his immigration status.
His lawyer was wrong, but the Kentucky Supreme Court had ruled that it didnt matter. Because immigration is a whole different process, deportation was simply a 'collateral' consequence of Padillas guilty plea, and his lawyer wasnt obliged to advise him about it, the Kentucky courts had held.
'New Hampshire courts have traditionally found that immigration consequences are collateral' to criminal proceedings,' Abramson wrote regarding the Padilla cases effects. 'The U.S. Supreme Court expressly rejected that reasoning.'
'In an era of ever-harsher immigration consequences for even minor criminal convictions,' Abramson wrote, the Padilla ruling could result in similar requests to vacate guilty pleas and seek trials in New Hampshire courts, as Padilla has asked in Kentucky.
'The U.S. Supreme court has merely recognized the common sense notion that an issue as important as likely deportation should be part of the accuseds decision-making process during a criminal prosecution.'