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The United States Supreme Court has not always made the best decisions regarding the rights of Immigrants in either immigration or criminal courts. However, the recent decision in Padilla v. Kentucky does go a long way to insure the rights of aliens in criminal proceedings.  What the Court holds is that criminal attorneys are required to provide competent immigration advice to criminal clients:

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.


Because of this, there will likely be a large amount of cases reopened for the ineffective assistance of criminal attorneys who did NOT provide information about a plea agreements' impact on their immigration status. This kind of motion could lead to a new criminal or immigration proceedings, to allow aliens a chance to reconsider the plea agreement with full knowledge of the immigration consequences.

For this reason, it is vitally important that all immigrants (including those with no status, some status, or permanent residence), and all criminal attorneys who have cases involving immigrants, contact competent immigration counsel to determine what the impact of a proposed plea agreement will be. This is something that I have a lot of experience with, and would be happy to discuss with criminal counsel or immigrants in criminal proceedings.  Click on the "Contact Us" tab above for information.





This is difficult, yet important advice that I give to aliens and their criminal attorneys all the time when consider the best outcome for them in terms of the immigration consequences. Sometimes it really is better to spend a little time in jail in order to get the prosecutor to agree to a more lenient sentence, or even to remove specific charges in order to avoid deportation when the criminal process is over. Today I spoke to the Johnson County, Kansas Bar Association, 2010 Herbert W. Walton Bench/Bar Conference, on the topic of the “Intersection of criminal and immigration law, what criminal lawyers and judges need to know when they have a foreign-born defendant.” A key part of that presentation were the following five major considerations for criminal attorneys:

Top 5 things you should keep in mind when dealing with an alien in criminal proceedings.

  1. Always double-check the possibility of your client being a United States citizen, or contact immigration counsel to check - particularly if either or both of their parents are Citizens of the United States.
  2. Make sure your client doesn't admit the facts that constitute the crime in any plea agreements.
  3. Key time periods: maximum POSSIBLE sentence of more than one year (CIMT); sentenced to one year or more (many of the Aggravated Felony definitions); and five years cumulative sentence (multiple CIMTs, multiple offenses Aggravated Felonies).
  4. Sometimes you need to offer a few days/months of actual jail time (shock time) in order to get a deal that will result in avoiding removability or inadmissibility.
  5. Challenge their immigration arrest if possible. 5th Amendment protections against statements made under duress or coercion apply in immigration proceedings, though generally not 4th amendment protections.

Neelam Ihsanullah, a guest contributor to our blog, is an immigration attorney licensed in Pennsylvania and California. You can contact her directly at: This email address is being protected from spambots. You need JavaScript enabled to view it.


There is some good news for the nation’s refugee population: in connection with ongoing litigation, the government is carefully reviewing its policy permitting the detention of refugees who fail to apply for lawful permanent resident (green card) status after being physically present in the United States for one year. Earlier this month, the NGO Human Rights Watch issued a report criticizing this unique form of immigration detention, in which an “alien could be held indefinitely without charges and not even as part of a removal proceeding.”

The requirement that refugees successfully obtain their green cards after one year of physical presence in the US comes from Section 209(a) of the Immigration and Nationality Act. This section provides that any refugee “who...has been physically present in the United States for at least one year, and... who has not acquired permanent resident status, shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States.” Ever since a 2001 memo, the government has interpreted this confusing statutory language to mean that detention is mandatory for all resettled refugees who have failed to present themselves to obtain permanent resident status one year after arrival (so-called “unadjusted refugees”).

In practice, Immigration and Customs Enforcement, the agency responsible for enforcing the immigration laws, is unlikely to jail unadjusted refugees unless they have first come to the attention of immigration authorities because of a criminal arrest or conviction. But it is hard to ignore the fact that the law, as it is currently written and interpreted by DHS, permits the detention of all resettled refugees who fail to obtain their green cards after one year of physical presence in the US. This is a broad and severe interpretation of ambiguous statutory language, which could easily be read as merely requiring that refugees who have been physically present in the US for one year appear for inspection and examination in connection with their green card applications, with no detention required -   an alternative reading which was once endorsed by the legacy Immigration and Naturalization Service (INS). 

As pointed out by the Immigration Policy Center, the interpretation of Section 209(a) mandating the detention of those refugees who fail to adjust after being physically present for a year in the US runs counter to immigration regulations, which prohibit refugees from applying for adjustment of status until one year has passed since their admission in refugee status. See 8 C.F.R. § 209.1. The Immigration Policy Center points out the unfairness in this situation by explaining, “In essence, ICE detains refugees for not doing what the law bars them from doing.”

The United States was founded by immigrants coming for work, for freedom of religion, and to escape other forms of persecution. The travails of immigrants, migrant workers, organized labor, and the working class have often been intricately linked. Recent developments have highlighted abuses against immigrants in the form of labor rights violations, illicit human trafficking, and constitutional violations in arrests and detention. Below we will examine a series of reports, articles, lawsuits, and court decisions which  viewed together paint a picture of the way labor and enforcement issues are closely linked. In crafting a new way forward in immigration policy, protecting the most vulnerable in our society should be our primary focus. The great Woody Guthrie wrote poignant and powerful songs about the plight of the working man, and he included immigrants, migrant workers, miners, and any other laborers together, and saw strength in their unity. This is particularly important, as he wrote these songs about the time in and immediately after the Great Depression, where, even in the face of high unemployment, some migrant workers and labor organizations saw foreign and U.S. migrant workers as equals.

“As I went walking I saw a sign there and on the sign it said ‘No Trespassing.’ But on the other side it didn't say nothing. That side was made for you and me.” This Land is your Land, by Woody Guthrie.

Recently, a Missouri state court judge ordered the State to pay damages to a business owner who was stripped of his state contracts in violation of state law. Asamoah-Boadu v. State of Missouri, 07AC-CC000983, (Circuit Court of Cole County, 11/25/2009). A private cleaning company held contracts with the Office of Administration to clean state office buildings. The owner hired individuals and presented their information to the state for verification, in addition to the regular I-9 process all employers are required to follow. In early 2007, the federal immigration authorities raided the offices and arrested 25 employees of his which were not properly documented. Even though he had submitted their information and they were approved by the State, the state cancelled his contracts as a form of punishment.

The former governor of Missouri, Matt Blunt issued an Executive Order in 2007, which stated that if a contractor employs any unauthorized workers, they will be in breach of the state contracts. That was the same day the federal immigration raid of state offices took place. It is hard to believe the two were not somehow related. The former administration of Missouri seemed to want to make a statement. However, their complete misunderstanding of immigration laws, which provide for punishments of specific violations of immigration-related employment laws, lead to this decision repudiating their actions.

Federal immigration laws punish those who “knowingly” employ those without authorization, while Governor Blunt’s order created punishments for those who violate federal immigration laws, but it did not contain the “knowingly” clause. Therefore, the state inappropriately found the owner here to have violated federal immigration law, even though the state did not require a showing that the violations were “knowing”.

The court in this case clearly repudiated the state’s actions, and rightly so. The then-governor was acting in a climate of intense anti-immigrant sentiment, and acted in violation of the law. The court pointed out finally that the governor’s order can not repeal an act of the state’s congress. The state of Missouri had passed a law authorizing the stripping of contracts when the employer knowingly violated federal immigration laws. The governor’s order was an attempt to toughen the state’s stance on immigration violations, without passing a law to change the “knowingly” requirement.  

There are many examples of local enforcement of immigration laws, which similarly misunderstand the federal immigration provisions. Many immigrants in Missouri have run into problems in the last few years obtaining driver’s licenses, even when they are here with authorization, etc., because either the contractors at the DMV offices don’t understand the documents presented, or the computer system they use is not up-to-date in their case. Again, this results in the state denying benefits to individuals based on a federal issue - their immigration status.  

One week ago, the country of Haiti was hit by a terrible earthquake, devastating the already poverty-stricken and under-resourced country.  Please consider making a contribution to the Red Cross to aid the relief effort on behalf of needy Haitians. For our purposes today, I will not go into great detail into the United States' culpability for many of Haiti's problems, but I would like to point out that we have had major military and other incursions into Haiti's since at least 1915.  For this reason, and the arguably negative impact we have had on Haiti's development, I think it is particularly important that we offer Haitians in the United States a chance to remain here, and not be forced to return there until conditions can improve.  To that end, the Department of Homeland Security has finally granted Temporary Protected Status ("TPS") to Haitians who have been in the United States since at least January 12, 2010. Though, importantly warnings have been issued to Haitians NOT to come to the United States now without authorization. Additionally, the United States has stopped deporting people back to Haiti, and most recently have announced that Haitian orphans who are in need of care may be granted humanitarian parole to enter the United States while they await the completion of their immigration process.  These are tremendous steps that are really required for many reasons, not the least of which is the current horrid conditions in Haiti.

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