Photo: Padilla vs Kentucky
This week marks the one-year anniversary of Padilla v. Kentucky – arguably the most important U.S. Supreme Court decision to date regarding the nexus between local criminal courts and federal immigration laws.
This is also the first week of renewed freedom for Jeysson Minota, 28, a legal permanent resident from Colombia, who had been in and out of federal detention centers for the past four years after originally being charged with vandalism. His detention, and his ultimate freedom, tells the story of the need and promise of the José Padilla decision.
In the Padilla case, the Supreme Court held that the U.S. Constitution requires criminal defense counsel to provide adequate advice on the immigration consequences of how a case is resolved. Such advice is critical to defendants like Minota.
The criminal act that got Minota in trouble—and put him on the radar of Homeland Security—was graffiti.
Minota, a graffiti artist, pled guilty to a felony charge of vandalism. Immigration and enforcement officials claimed that vandalism is a “crime of moral turpitude,” making it a deportable offense. He spent the next four years in detention, caught up in the deportation process, and fighting to stay in the country. Because he held a green card, Minota had the possibility of avoiding deportation, at the discretion of a judge.
During this critical time, Minota, while out on bond, caught another charge – a misdemeanor charge of trespassing. With the help of new attorneys, including Angie Junck, a coauthor of this article, he pleaded not-guilty to the trespassing charge. That decision eventually won him a new green card—and a new start in the United States.
That’s because a guilty plea would have caused him to forfeit his chance to have a judge review the case. He was able to get the immigration advice he needed from his lawyer, a right affirmed in the precedent-setting Padilla case.
But as with any legal device, the decision from Padilla v. Kentucky is a measure of protection that only has value if exercised. There are two glaring and systemic roadblocks that make cases like Minota’s, even with the Padilla decision, more the exception than the rule.
Strip away the political value judgments around constitutional protections for immigrants, and you are still left with overly impacted criminal courts. The reality is that guilty pleas, early and often, are perhaps all that prevent the country’s court system from bursting at the seams. In fact, less than five percent of all felony cases across the country ever reach the trial stage. Consequently, one of the most fundamental rights afforded to the accused – the right to a public hearing – is circumvented on a daily basis.
For those without immigration consequences, plea deals may be the best option in order to receive a lighter sentence. But for those like Minota, it is a decision often born out of the pressure and isolation of the experience, and one they may come to regret.
In Santa Clara County, where Minota faced criminal charges in 2008, the district attorney’s office tried only 260 cases, both for misdemeanors and felonies, out of roughly 30,000 cases. That is less than one percent, meaning the immigration fates of immigrants, who are part of that pool of defendants, were frequently sealed well before they faced an immigration judge.
Immigrants are often represented by public defenders. Nationwide, public defenders appoint attorneys to represent those without the resources to hire a private attorney. In California, 90 percent of all the accused are represented by some form of publicly appointed counsel.
Often, publicly appointed attorneys have an overwhelming number of cases to juggle compared to private lawyers, who choose their own dockets and workload. Consequently, there is an incentive for public defense lawyers to encourage their clients to plead guilty, rather than take the time for investigation, motions, defense construction and the financial resources required for a trial.
In Santa Clara County, which included San Jose, the public defender’s office does not even staff all misdemeanor arraignment courts, a key place where pleas are entered and immigrants may unknowingly dig their own deportation graves.
In these courts, immigrant defendants, unless they’ve retained private counsel, would not have an attorney to consult with to help them understand the potentially life-altering consequences of the plea they enter.
The second systemic hurdle, which makes enforcement of the Padilla decision difficult, is that there is no authority to hold defense attorneys accountable for meeting their responsibility.
Minota’s case was unusual because he had the help of a community organization that actively challenged his defense attorney to take into account his immigration status, along with an immigration attorney, who could advise the criminal lawyers.
The organization supporting Minota, Silicon Valley De-Bug, his family and his immigration attorney, Angie Junck of the Immigrant Legal Resource Center, met weekly to assess the status of the case and develop strategies.
Minota said, “I knew I could continue to fight because I knew I had people on the outside that were fighting for me.”
The notion of community involvement—communicating with lawyers, reviewing paperwork, attending court hearings—in criminal or immigration cases is currently not a common practice, particularly in immigrant communities. The Padilla decision may be a lever to make defense counsel better protect the rights of immigrants, but there have to be people to pull that lever.
There are two major lessons learned from Minota’s case: The criminal defense bar, particularly public attorneys on immigration matters, need to be educated on immigration consequences to criminal charges; and immigrant-advocacy groups need to see criminal courts as a central space where they can fight to keep families together in the United States.
For example, immigrant-advocacy groups can meet with public defenders in their counties to cite errors, underscore their responsibilities, and encourage their vigilance.
Also, advocates can call on public defender offices to develop protocols for defending noncitizens, who face immigration consequences. This should become an integral part of criminal defense practice. The Immigrant Legal Resource Center and Silicon Valley De-Bug are working on both these fronts.
Jeysson Minota’s freedom is a testament to what is possible when advocates employ both approaches.
Because the Padilla decision is on the books, immigrant communities facing criminal charges have a new window of opportunity. With a newly educated class of defense lawyers, and a freshly empowered community organizers and advocates, criminal courts will no longer be automatic feeder systems to deportation.
Raj Jayadev, a Soros Justice Fellow, directs the Silicon Valley De-Bug. Angie Junck is a staff attorney for the Immigrant Legal Resource Center. News America Media