Posted on Mon, May 07, 2012 @ 10:43 AM
The U.S. Supreme Court agreed on Monday to repair the growing rift among lower courts over the retroactive effect of its landmark ruling that requires lawyers to advise their clients about the possible deportation consequences of pleading guilty. The justices added to their fall docket the case of Chaidez v. United States, which poses the retroactivity issue raised by the Court's 2010 ruling in Padilla v. Kentucky. In that decision, a 7-2 majority found that when a lawyer fails to tell a client that a guilty plea as part of a plea agreement could expose the client to deportation, it amounts to ineffective assistance of counsel.
COURT TO DECIDE IF PADILLA APPLIES RETROACTIVELY
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Posted on Tue, Apr 24, 2012 @ 09:10 AM
A New Jersey appeals panel says a clash in interpretations over a U.S. Supreme Court ruling means a noncitizen who wants to retract a guilty plea should turn to the federal courts. At issue in State v. Barros, A-1288-10, is fallout from a U.S. Supreme Court ruling in 2010 that recognized an affirmative constitutional right for alien criminal defendants to be warned that a guilty plea can result in deportation. The state Supreme Court found that the 2010 decision was a new rule and therefore prospective. The U.S. Court of Appeals for the Third Circuit found it merely restated an existing requirement and was therefore retrospective.
FEDERAL COURT IS FORUM FOR RETRACTION OF PLEAS BY NONCITIZENS, PANEL SAYS
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Posted on Thu, Feb 23, 2012 @ 10:26 AM
Defendant arrived in the U.S. in 1985, at age three. He became a lawful permanent resident and submitted an Application for Naturalization (N-400). He orally went through the form at a Citizenship and Immigration Service office. He answered "No" to: "Have you ever committed a crime or offense for which you were not arrested?" and "Have you ever sold or smuggled controlled substances, illegal drugs or narcotics?" His application was recommended and he was notified by N-445 of a mandatory oath ceremony. The N-445 contained questions to confirm that the applicant had maintained good moral character. Defendant again answered "No." He was naturalized in 2006. In fact, he had distributed cocaine 2004-2005, and, between the N-400 interview and the oath ceremony, was arrested for distributing cocaine and amphetamines. After pleading guilty to drug charges, defendant was convicted of making a material false statement to DHS (18 U.S.C. 1001(a)(2)) and unlawfully applying for and obtaining naturalization (18 U.S.C. 1425(b)). The First Circuit affirmed, rejecting arguments that admission of form N-445 violated his right to confrontation; that admission of form N-445 under the public records exception to hearsay was error; and that repeated reference to his prior conviction was unfairly prejudicial.
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Posted on Fri, Jan 06, 2012 @ 02:54 PM
A federal judge in California has certified a class of hundreds of undocumented immigrant detainees with mental disabilities who have alleged that they were unable to obtain legal counsel in violation of their due process rights. U.S. District Court Judge Dolly Gee of the Central District of California in Los Angeles certified the group in a ruling that applies to cases in Arizona, California and Washington — where, according to the suit, up to 25 percent of the nation's immigrant detainees are being held. "Defendants present no evidence that there is any procedure or mechanism in place for either identifying or evaluating a detainee's competency to represent himself or herself in immigration proceedings," she wrote. Gee went on to conclude that the problems were systemic, given the "dearth of guidance available to immigration judges in proceedings pertaining to unrepresented mentally incompetent aliens."
NJLJ 12/30/2011
JUDGE OKS CLASS OF IMMIGRANT DETAINEES WITH MENTAL PROBLEMS
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Posted on Wed, Jan 04, 2012 @ 08:38 PM
WITH IMMIGRATION CASE, COURT TAKES ON ANOTHER POTENTIAL BLOCKBUSTER
Once again raising the stakes in what may be a historic term, the U.S. Supreme Court on Monday agreed to decide whether Arizona's tough anti-immigration law can be enforced or is in fatal conflict with federal immigration law. The justices agreed to review four key provisions in Arizona's Support Our Law Enforcement and Safe Neighborhoods Act, commonly known as S.B. 1070, that the Ninth Circuit found pre-empted by federal law. Two of the four provisions enjoined by the lower courts create new state crimes and the other two provisions impose requirements on Arizona law enforcement to verify immigration status and provide arrest authority.
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Posted on Mon, Jan 02, 2012 @ 03:16 PM
JUDGE CERTIFIES CLASS OF IMMIGRATION DETAINEES SUFFERING MENTAL PROBLEM
A federal judge in Los Angeles has certified a class of hundreds of undocumented immigrant detainees with mental disabilities who have alleged that they were unable to obtain legal counsel in violation of their due process rights. U.S. District Judge Dolly Gee certified the group in a ruling made public Dec. 19. The ruling applies to cases in Arizona, California and Washington, where, according to the suit, up to 25% of the nation's immigrant detainees are being held. "Defendants present no evidence that there is any procedure or mechanism in place for either identifying or evaluating a detainee's competency to represent himself or herself in immigration proceedings," she wrote, noting a "dearth of guidance available to immigration judges in proceedings pertaining to unrepresented mentally incompetent aliens."
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Posted on Wed, Nov 16, 2011 @ 08:37 AM
JUSTICES PONDER DUTY TO ADVISE ABOUT GUILTY PLEA'S DEPORTATION CONSEQUENCE
The state Supreme Court on Wednesday continued to grapple with the effects of two rulings — one of its own and one by the U.S. Supreme Court — on what noncitizen criminal defendants need be told about the immigration consequences of pleading guilty. The state Court has stayed hundreds of post-conviction relief appeals while it irons out whether State v. Nunez-Valdez, 200 N.J. 129 (2009), and Padilla v. Kentucky, 130 S. Ct. 1473 (2010), should be applied retroactively. Argued Wednesday were appeals by two lawful U.S. residents who pleaded guilty to deportable drug offenses before those decisions came down. Though the state argues that Padilla created a new rule, its author, Justice John Paul Stevens, said the Court was applying what had been "professional norms" going back as far as 1999.
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Posted on Thu, Oct 13, 2011 @ 01:45 PM
Watch out for Immigration Scams
by Matthew Dourdis, Esq.
Immigration scams are abundant. Just this past summer, the United States Attorney General decided to unveil and initiative to keep scam artists from taking advantage of fear, poverty, and the language barrier. Often times, websites that cater to people who speak a foreign language come across as legitimate when they are, in fact, unauthorized purveyors of immigration counsel. These fake immigration services will charge a fee for forms that are free and publicly available online. They will also mislead immigrants and their families into thinking that they have connections with public officials and can streamline the immigration process. These are both illegal activities and can have devastating consequences for the status of immigrants' visas, green cards, etc. Fraudulent immigration services prey on the gap in understanding between cultures; and this is precisely the reason immigrants and their families should seek out an immigration attorney. Immigration attorneys can help you navigate through the immigration process fairly and as unhindered as possible. If you are in need of immigration counseling, feel free to contact our firm. We will be happy to discuss your case with you, and even happier to help keep fraudulent immigration services out of business.
For assistance with your immigration matter, call our office at 800-709-1131 or visit our website: http://www.simonattorneys.com/immigration/
Posted on Tue, Jun 21, 2011 @ 03:22 PM
14-2-2546 State v. Telford, App. Div. (Fisher, J.A.D.) (21 pp.) In this appeal, the court considered whether defendant was deprived of the effective assistance of counsel because — prior to his guilty plea to third-degree child endangerment in 2004 — his attorney only advised he "might" rather than "would" be deported. In affirming, the court held that the deportation consequences at the time did not require more specific advice because the situation was too complex, observing: (1) the split in the federal circuits regarding the scope of "sexual abuse of a minor," 8 U.S.C.A. § 1101(a)(43)(A), as a type of "aggravated felony," 8 U.S.C.A. § 1227(a)(2)(A)(iii), which presumptively mandates deportation; (2) unsettled questions surrounding the type of analysis that would be undertaken by the tribunals charged with determining whether a noncitizen has committed an "aggravated felony"; and (3) the growing tendency in those courts to give little weight to the rule of construction adopted in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), which resolves statutory ambiguities in favor of noncitizens facing deportation. These questions were unsettled when defendant pleaded guilty and, indeed, are largely unsettled now. As a result, counsel here could do no more than he did, which was to advise defendant of the likelihood rather than the certainty of deportation.
NJLJ 6/16/2011
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