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May 9, 2011

"Immigration Consequences: A Primer for Texas Criminal Defense Attorneys In Light of Padilla v. Kentucky"

The title of this post is the title of this new law review by Mario Castillo, which is available now via SSRN. Here is the abstract:

A noncitizen convicted of violating a Texas state criminal statute is subject to a variety of harsh immigration penalties including deportation from the United States.  Multiple variables determine whether a state criminal offense will trigger immigration deportation proceedings.  A parallel concern is the impact that a state criminal offense may have on one of the routine offenses prosecuted in federal courts: illegal re-entry in violation of 8 U.S.C. sec. 1326.  The Supreme Court has made it constitutionally impermissible for a criminal defense attorney to recommend the entry of a guilty plea in the absence of a basic, working knowledge of how that guilty plea will affect the noncitizen's immigration status.

This Article begins by introducing the reader to a survey of typical deportation proceeding invoking offenses (“DPIOs”) established by federal law.  Part II illustrates, via examples, how immigration law's adoption of well-known criminal law terms does not necessarily require analogous definitions across both contexts.  Part III then provides a brief overview of federal criminal sentencing enhancement law, on which much of immigration law relies, and closes by providing the distinct character that immigration proceedings have from their antecedents in federal criminal sentencing.  Part IV apprises the reader of select federal sentencing enhancements especially germane to noncitizens that unlawfully reenter the Nation after having been deported.  Finally, an attached appendix charts in detail, offense by offense, the immigration and federal sentencing consequences for select Texas criminal statutes.

May 9, 2011 at 04:27 PM | Permalink

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Comments

I thought Padilla was only concerned with the affirmative error made by counsel, claiming that there would be no immigration consequences. Not that correctly informing the defendant is required. Am I mistaken on what Padilla actually required? If not, this seems like an attempt to manufacture an issue that likely does not exist in many cases.

Posted by: Soronel Haetir | May 9, 2011 7:45:42 PM

Hi,

Thanks for the feedback. I will make this clearer in future editions. The Supreme Court specifically refused to limit its holding to affirmative misdavice. See Padilla v. Kentucky, 130 S.Ct. 1473,1484. In fact, Justice Alito's concurrence is based largely, in my view, on his unwillingness to extend it beyond affirmative midsadvice.

Thanks again,

Mario

Posted by: Mario K. Castillo | May 9, 2011 8:42:06 PM

Alright, thanks. You're right. I was thinking the requirement of being informed was a plurality and that Alito's concurrence would carry the day under Marks. But looking back I see that I am wrong on that.

Posted by: Soronel Haetir | May 9, 2011 10:58:29 PM

Hi, I had a criminal case about ten years ago which I plead out, after my first criminal attorney advised me that I would not have any immigration problems. Soon after I was detained by immigration where I stayed for eleven months fighting my case. With the help of god I was granted temporary relief based on my religion. Am I able to re-open my original case on this basis? Thank you in advance for your response!

Posted by: Kia | May 11, 2011 12:46:00 AM

Immigration lawyers, green card, immigration law, visa, passport, citizenship, immigration services, find a lawyer and more about immigration in USA.

Posted by: Immigration Lawyer NVC | Jul 19, 2011 4:58:13 PM

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