Gov Paterson Creates Immigration Review Panel in NY

[LateKnight]

http://www.nytimes.com/2010/05/04/nyregion/04deport.html?hp


Immigrants in detention or facing deportation orders can breathe a collective sigh of relief now that Governor David Paterson is set to establish a special pardons panel to review cases on an individual basis. The decision is a step in the right direction in granting immigrants a second chance and reprieve to families on the brink of being torn apart, many for minor transgressions committed decades ago.

At the annual gathering of the state's top judges yesterday, Gov. Paterson announced his intent to establish a five-member Special Immigration Board of Pardons to consider and grant pardons to legal immigrants with old or minor criminal convictions. In opting for this course of action, the governor cited rehabilitation and renewal as key factors.

Immigrants are in detention or facing deportation for a variety of reasons, including misdemeanor marijuana possession. In some cases, immigrants pleaded guilty without being apprised of the deportation consequences. This past March, the Supreme Court issued a landmark decision in Padilla v. Kentucky when it held that criminal defense attorneys must advise clients about the immigration consequences of pleading guilty.

The significance of Gov. Paterson's pardons panel can only be truly appreciated when you consider that Immigration Judges have no discretion to consider individual cases of immigrant detainees, and factors such as length of time of residence in the United States, impact on their American-born children or U.S. citizen spouse. The pardons panel is about to change this trend.

 

[dafortycal]

How nice of him....

Post-conviction Relief

1. Expungement or Vacation.

In the majority of circuits, an alien remains convicted of a removable offense for federal immigration purposes when a state vacated the predicate conviction pursuant to a rehabilitative statute or simply to aid the alien in avoiding adverse immigration consequences and not due to any procedural or substantive defect in the original conviction. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006); Sanusi v. Gonzales, 474 F.3d 341 F.3d (6th Cir. 2007); Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006), Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza, 396 F.3d 1125 (10th Cir.2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000). For example, in Matter of Adamiak, 23 I. & N. Dec. 878 (BIA 2006), where the state court vacated a conviction for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea, there was no longer a conviction for immigration purposes.

In contrast to the majority of circuits, the Fifth Circuit holds that a criminal conviction vacated for any purpose remains a conviction for immigration purposes. Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007); Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).

In Saleh v. Gonzales, 495 F.3d 17 (2d Cir. 2007), where the state court nunc pro tunc amended Saleh's 1993 conviction for receiving stolen property (for which a sentence of one year or longer could have been imposed) to petty theft "solely for the purpose of circumventing the immigration laws of the United States," and not based on any showing of innocence or any defect (substantive or procedural) in the underlying criminal proceedings, the court held that Saleh remained convicted of receiving stolen property for immigration purposes.

In Rumierz v.Gonzales, 456 F.3d 31 (1st Cir. 2006), two years after the BIA had entered its final order of removal in 2000 based on a crime involving moral turpitude, the alien sought to reopen based upon the state court having converted the crime to a conviction for an offense that did not constitute a crime involving moral turpitude. The alien's 1994 conviction for possession of stolen property was amended to negligent operation of a motor vehicle. The Vermont court stated only that the alien's conviction for possession of stolen property "shall be stricken and amended to negligent operation of a motor vehicle." The Vermont court did not indicate that the original conviction was stricken due to any defect, and the Vermont Deputy State's Attorney stated that the merits of the claim were not addressed by the court. The First Circuit gave Chevron deference to the BIA and concluded that it was the alien's "burden to show that the vacating of the Vermont conviction was based on a procedural or substantive invalidity" or defect in the underlying criminal proceedings.

2. Full and unconditional pardon. According to the Eleventh Circuit Court of Appeals, the pardon provision (INA sec. 237(a)(2)(A)(vi), 8 U.S.C. sec. 1227(a)(2)(A)(vi)) only applies to persons subject to deportation and does not apply to a respondent deemed inadmissible. Irabor v. U.S., 219 Fed. Appx. 964 (11th Cir. 2007); Balogun v. Attorney General, 425 F.3d 1356 (11th Cir. 2005). See generally Matter of Pedro Aguilera-Montero, 2006 WL 1647442 (BIA May 15, 2006). However, a Presidential pardon (but not a Governor’s pardon) exercised under the pardon authority in the U.S. Constitution, Art. II, § 2, would relieve the alien of all punishments, penalities, and disabilities that flow directly from the conviction. See Memorandum for Margaret Colgate Love, Pardon Attorney, Office of the Pardon Attorney, from Walter Dellinger, Assistant Attorney General, U.S. Dept. of Justice (June 19, 1995).

3. Sentence reduction

Rule 35 of the Federal Rules of Criminal Procedure permits a court to correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner for a limited time. The narrow function of Rule 35 is to correct an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence.

When a court concludes that the initial sentence was illegal and imposes a new sentence, then for immigration purposes, the new sentence “stands as the only valid and lawful sentence imposed upon the defendant.” Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982). A reduced sentence may result in an alien fitting within the petty offense exception at INA sec. 212(a)(2)(A)(ii)(II)

In Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), where a criminal court vacated the one-year prison sentence of an alien convicted of a theft offense and revised the sentence to 360 days of imprisonment, the alien did not have a conviction for an aggravated felony within the meaning of INA sec. 101(a)(43)(G). A trial court's decision to modify or reduce an alien's criminal sentence nunc pro tunc is entitled to full faith and credit, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction. Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005).

In Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001), a lawful permanent resident pled guilty to possession of more than thirty but less than 500 grams of cannabis. After the INS charged Sandoval with being removable based on this conviction, the Illinois state judge entered a modified order to first offender probation (after Sandoval demonstrated that he entered a guilty plea under the erroneous advice of counsel that his plea would have no collateral deportation consequence) which the court may only do if the individual is a first time offender guilty of possession of 30 grams or less of marijuana. The IJ concluded that the state judge modified Sandoval's sentence solely to avoid the immigration consequences, which was not effective for purposes of federal immigration law. The BIA affirmed. The Seventh Circuit held that the INS failed to establish that Sandoval was deportable as charged, and not eligible for the exception from removal for a single offense involving possession of 30 grams or less of marijuana.