Immigration and Criminal Law

Privacy is in the News – Repeatedly

February 24, 2020 | By James S. Friedman, LLC

Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently. These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country. He was extremely poor and his family was basically gone. Having absolutely no personal resources for even necessities, he became involved with a local gang. To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout. Significantly, he really did not want any part of the gang lifestyle. He eventually fled his home country and sought asylum in the United States. He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related. The therapist took notes of their meetings, which included discussions of his gang-related activities. Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States. The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

Consular Rights of Non-Citizen Criminal Defendants

November 9, 2017 | By James S. Friedman, LLC

Given the current political climate, protecting the rights of non-citizen criminal defendants is certainly not a popular activity. However, and as many judges and elected representatives have repeatedly stated, our judicial system (federal and state) is supposed to be a model of fairness for other countries, particularly those where there are no meaningful due process rights or protections. Our tradition provides that any criminal defendant – even one who is in the United States illegally – is still entitled to due process.

To help ensure this, there is a procedure which really should be utilized in most, if not all, criminal cases where the defendant is not a US citizen. International treaties provide that a non-citizen criminal defendant must be allowed to speak to a representative of his country’s consulate to seek whatever assistance the consulate can offer. This was a major issue in the case of Ruben Cardenas, who was executed last night in Texas.

Cardenas was arrested over 20 years ago for the murder of his teenage cousin. Following hours of questioning by law enforcement, he admitted to sneaking into his cousin’s through a window. He also confessed to kidnapping, raping and killing her, and leaving her body near a canal. He was not given an attorney until 11 days after his arrest, and his defense counsel claimed that his confession was coerced and other evidence in the case was problematic for different reasons. Representatives of the Mexican government and the United Nations all tried to stop the execution, providing this case with international visibility. The execution was carried out despite numerous appeals that raised the deprivation of consular rights, as well as other issues.

Jae Lee v. United States – Advising Defendants Facing Deportation Continues to be an Issue

September 7, 2017 | By James S. Friedman, LLC

The last United States Supreme Court term ended with some noteworthy criminal decisions. One of these was Jae Lee v. United States, decided on June 23, 2017. This is the latest case from the High Court to address the issue of effective assistance of counsel in the context of a criminal case where a non-citizen defendant resolves the charges by way of plea, thereby risking deportation.

The facts are not complicated. The defendant sold ecstasy and marijuana to an informant, and was charged with possessing ecstasy with intent to distribute. During plea negotiations, Lee repeatedly asked his attorney if he would be deported if he pleaded guilty, and defense counsel assured him that he would not. Because the offense was an aggravated felony, Lee was, in fact, subject to mandatory deportation as a result of the plea. Upon learning of this, Lee moved to vacate the plea, arguing that his attorney’s advice amounted to ineffective assistance. His attorney apparently admitted that Lee’s defense to the underlying charge was weak, but he would nevertheless have advised Lee to proceed to trial had he known that the guilty plea would have resulted in mandatory deportation. A Magistrate held in favor of Lee, but the District Court denied relief and the Sixth Circuit affirmed, finding that although the Government had conceded that counsel’s performance was defective, Lee could not show that he was prejudiced by the incorrect advice. Thus, Lee satisfied the first prong of the ineffective assistance test of Strickland v. Washington, but his application failed because he could not satisfy the second prong.

Fortunately, the Supreme Court reached a different conclusion and reversed. The Court found that Lee could demonstrate that he was prejudiced by showing a reasonable probability that but for his attorney’s errors, he would have gone to trial rather than plead guilty. The Government argued that Lee could not show that he was prejudiced by accepting a plea where he had no viable defense to the underlying charge, and his sole hope of a victory at trial stemmed from the possible occurrence of some unexpected and unpredictable event that would have led to an acquittal. The Court characterized this argument as an attempt by the Government to adopt a per se rule as to an inquiry that demanded a case-by-case analysis based upon the totality of the evidence. The Government also overlooked the fact that the inquiry focused on a defendant’s decision making process, which may not be grounded exclusively in the likelihood of a conviction after a trial. While it is true that the chance of a conviction after trial is an important factor in deciding to accept a guilty plea, there are cases where even the lowest possibility of success at trial may appear attractive to a defendant. Finally, the Government posited that Lee’s decision to reject the plea would have been irrational because of the increased prison exposure resulting from a loss at trial. But the Court could not find that a decision by someone in Lee’s position to risk a long prison term in exchange for even a small chance of avoiding deportation was irrational. Continue reading ›