Florida Injury Attorney Blog

An American citizen child was recently deported to Columbia because there was nothing to indicate that she wasn't Columbian.

Fifteen year old Jakadrien Turner was born in Texas. She doesn't speak Spanish. She and her family have no ties to Columbia. Yet, this little girl was physically deported from her home country to to the foreign land of Columbia in a perfect example of why government oversight is and should continue to be a prized and celebrated American attribute.

The child was arrested on a petit theft charge in Houston, Texas. She made the grave error to give law enforcement a false name and tell them that she was from Columbia. Apparently, that is all it takes for a wayward child to get deported from the United States and physically removed from the custody of the child's parents.

The real question, however, is how immigration authorities, with all of their power, intelligence, and consolidated networking, could make such an eggregious error. The answer is shocking. Authorities claim that there was nothing to indicate that the child was not Columbian. Plain and simple.

This case goes to show how a 15 year old child can so easily find herself in the middle of a country that she has never been to, with a people who do not speak her language, with no money, no resources, and no familial support. Unlike in criminal proceedings where everyone is entitled to an attorney, in immigration proceedings, you are only entitled to an attorney at your own expense. If you can't afford an attorney, you don't get one. Even if you are a 15 year old U.S. citizen.

This case has made national headlines because Jakadrien is a child. But the implications go far beyond this case. The question remains: How many U.S. citizens have been deported who suffer from indigency, mental health issues, or other barriers that prevent them from being able to represent themselves in a dauntingly immense immigration court system.

Immigration officials, for the most part, make every effort to do their jobs in a fair and legal manner. But when you have a system that is underfunded and overextended, more and more mistakes are going to follow. Read more about Jakadrien's case here.

Jose, a lawful permanent resident, crosses the border into Mexico to retrieve his nephew, a citizen of Guatemala. Jose attempts to bring his nephew into the United States by using his son's birth certificate for entry. Jose's son is a U.S. citizen by birth. Jose is stopped at the border and interrogated by Customs agents. During this interrogation, Jose admits to using his son's birth certificate to bring his nephew across the border. Jose is then issued a Notice to Appear before an Immigration Judge for a removal hearing. During the hearing, Jose moves to suppress his admission because the Customs agent failed to advise Jose that he had a right to hire a lawyer and that any statement that he made would be used against him in the removal proceedings. Is Jose right?

If Jose were charged with a criminal offense, his statements would be suppressed because the Customs agent violated his Miranda Rights. That is, Jose has a right to remain silent, the right to have an attorney present prior to and during any questioning, and the right to have an attorney appointed to him at no cost, if he can't afford an attorney.

However, Jose was not charged with a crime. He was charged with being removable from the United States for violating the immigration laws. According to the Board of Immigration Appeals in Matter of E-R-M-F & A-S-M, 25 I&N Dec. 580 (BIA 2011), Jose was not entitled to any warnings until he was "placed in formal proceedings." In other words, until the Notice To Appear was filed with the Immigration Court, which would be long after he was questioned, he is not entitled to be told that he has the right to an attorney being present, at his own cost, before any questioning.

So what have we learned from this case? It is important to get the word out to immigrants everywhere (lawful permanent residents, nonimmigrant visa holders, unlawful presence aliens) that you have the right to hire an attorney and that any statement that you make will be used against you in the removal/deportation proceedings. Because the Government will not tell you.

There were a record number of immigrants deported last year. Many were deported for relatively minor criminal infractions, including driving or driver's license infractions and DUIs. The government is focusing more and more on deporting those with criminal convictions, including minor criminal convictions. The government deports lawful permanent residents ("greencard holders") as well as those here unlawfully. This article underscores the importance of knowing what effect a plea of guilty or no contest, even to the most minor criminal offense, will have on an immigrant's status in this country.

A new ICE memo issued this month advises ICE officials and Government attorneys to use their discretion in seeking deportation for non-citizens. While the memo suggests that the government officials should focus on deporting immigrants with criminal records and a history of immigration violations, it counsels officials to use discretion in which cases to prosecute, paying particular attention to those who have served in the military, those who came to the US when they were children, those with mental or physical disabilities, and others with positive factors. The question remains whether the soldiers on the line, i.e. ICE agents and government attorneys, will adhere to the memo. If you think you, or a loved one, might qualify for prosecutorial discretion, give us a call.

Operation "Cross Check" netted 2,400 arrests last month in a nationwide raid. The operation focused on those with outstanding deportation orders, those who had previously been deported and then returned, and those with past criminal convictions. This story underscores the importance of non-U.S. citizens, even greencard holders, in obtaining immigration assistance before entering a plea to any criminal charge. Even the most minor criminal conviction could be the basis for deportation for a lawful permanent resident. Lawful permanent residents often call our office after entering a plea of guilty to a criminal case and tell us that they believed that the conviction or withhold of conviction would not affect their immigration status only later to be served with a notice to appear charging them with removability. Many have been counseled by their criminal lawyers that there would be no negative immigration consequences. The law is extremely convoluted and complex relating to when and what criminal convictions will lead to removal of non-U.S. citizens. Read more about the raid here.

A 55 year old woman who has lawfully lived in the United States since she was a baby is facing deportation based on a 2001 misdemeanor drug possession charge. ICE conducted a pre dawn raid on her home. She has lived her entire life in the United States and has no ties to Italy, her country of citizenship. Yet, she is subject to deportation based on an old minor criminal conviction. Read more here. Although there may be forms of relief available to her, this story illustrates the importance of taking every criminal charge seriously when you are not a U.S. citizen.

A Minnesota Court of Appeals recently ruled in Campos v. Minnesota, that the Padilla decision should apply retroactively. The Padilla decision was a U.S. Supreme Court case, where the Court held that a defendant who was not advised or was improperly advised of immigration consequences could withdraw his or her previously entered plea of guilty or no contest. The question that lingered after the Padilla decision that courts across the nation have been wrestling with is whether the decision applied retroactively. A defendant generally has a short period of time after their plea to file a motion to withdraw that plea. The Campos Court held that those deadlines do not apply to a Padilla challenge. It remains to be seen how other courts across the nation will address this issue.

The Florida Third District Court of Appeal recently ruled in Hernandez v. State, that the U.S. Supreme Court's decision in Padilla v. Kentucky should not be applied retroactively. The Padilla Court held that a criminal defendant who entered a plea to a criminal charge, but was not properly advised, or advised at all, of the immigration consequenses of his or her plea, could withdraw his plea to the criminal charge if certain conditions were met. However, the Padilla Court did not specifically state whether this applied to cases prior to the Padilla decision (March 2010). The 3rd DCA stated in Hernandez that it appeared that the Padilla Court meant for the decision to be retroactive and thus apply to final convictions prior to March 31, 2010, but because the Court did not specifically state that the decision should be applied retroactively, the 3rd DCA refused to hold that it did, in fact, apply retroactively. The 3rd DCA did certify the issue to the Florida Supreme Court.
This decision will ultimately be decided by the Florida Supreme Court and the U.S. Supreme Court. It has far reaching consequenses for non U.S. citizens who have entered pleas of guilty or no contest and been sentenced in a criminal case. If the Florida Supreme Court or the U.S. Supreme Court agrees with the 3rd DCA, immigrant clients who have relied on the incorrect advice of their criminal lawyer in pleading to a criminal charge, and now are facing deportation because of that advice, will have no remedy to go back and challenge that criminal conviction.

The Board of Immigration Appeals narrowed the list of immigrants that can be deported in their decision, Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011). The law states that an alien can be deported if he or she commits a crime involving moral turpitude less than 5 years after being "admitted' into the United States. The question that lingers is what is the relevant date of admission? The entry date of the alien into the United States? What if the alien becomes a lawful permanent resident? Does that restart the relevant date of admission? Well, the Board answered this last question in the negative. How does this affect a non U.S. citizen?

Consider this example. John is a citizen of Germany. He entered the United States in 1995 on a nonimmigrant visa. In 2005, he became a lawful permanent resident. In 2007, he committed a crime involving moral turpitude (for example, theft or fraud). Prior to Alyazji, the BIA's former relevant decision suggested that when John adjusted his status to become a lawful permanent resident, he started his "admission" all over again, and therefore any crime of moral turpitude for the next 5 years (until 2010) would make him deportable. Under Alyazji, John would not be deportable because he committed the crime of moral turpitude more than 5 years from his "admission" (1995), and John's adjustment of status to become a lawful permanent resident no longer affects that admission date, under Alyazji.

Baker County's new detention facility is now hosting satellite video removal hearings. The Judge and government attorney are still located in the closest immigration court in Orlando. However, through video conferencing, the client and attorney may appear by video at the Baker County Detention Facility, instead of the client being transported to Orlando for the proceedings.

In Padilla v. Kentucky, 599 U.S. ___, 130 S.Ct. 1473 (2010), the United States Supreme Court held that when a non U.S. citizen is either inproperly advised or not advised of the immigration consequences of the plea of guilty or no contest to a criminal charge, the conviction may be overturned. So what does this mean for you? If the Government is attempting to remove or deport you based on a criminal conviction, you may be able to challenge that criminal conviction, even though you pled guilty or no contest, and even though it happened a long time ago. If you were not properly advised of what impact your plea to the criminal case would have on your ability to stay in this country, you may be able to challenge that conviction, thanks to Padilla.