Sunday, July 25, 2010

Chicago Criminal attorney comments on how a misdemeanor, without jail, can get you deported

This Chicago Criminal attorney has posted here and here about the special issues facing defendants who are also immigrants, whether they are documented or not.

While immigration is a hot-button issue many don’t believe that those who came over, as undocumented children, should be deported.

 Vincenzo Donnoli was 9 when his family immigrated legally to Brooklyn. He attended Erasmus Hall High School, married and divorced in Flatbush, ran a landscaping business and had five children. But at 51 he is back — alone and jobless — in Pomarico, the hill town in southern Italy where his father was a shepherd, as a deportee banned for life from returning to the United States.
 His offense: two misdemeanor convictions for possessing small amounts of cocaine, in 1988 and 2006, both guilty pleas resolved without jail time. Retroactively, immigration authorities added them up to equal an “aggravated felony” that required Mr. Donnoli’s automatic deportation last year.
That kind of arithmetic, an aggressive government interpretation of 1996 immigration laws that has been increasingly invoked in recent years, was rejected by the Supreme in a unanimous decision in June. But the ruling came too late for Mr. Donnoli and thousands of deportees like him, all former lawful residents who have no way to turn that legal vindication into a chance to come home.
“The Supreme Court has said in a series of cases that the government’s theories of deportation have been wrong for years,” said Daniel Kanstroom, a professor at Boston College Law School, citing earlier decisions that rejected the government’s classification of other minor crimes as deportable offenses. “And yet the legal system has not developed a mechanism to right that wrong for the thousands of people who have been wrongly deported.”

Petitioner Jose Angel Carachuri-Rosendo, a lawful permanent resident who has lived in the United States since he was five years old, faced deportation under federal law after he committed two misdemeanor drug possession offenses in Texas. For the first, possession of less than two ounces of marijuana, he received 20 days in jail. For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10days in jail. After this second offense, the Federal Government initiated removal proceedings against him. He conceded that he was removable, but claimed he was eligible for discretionary relief from removal under 8 U. S. C. §1229b(a).
To decide whether Carachuri-Rosendo is eligible to seek cancellation of removal or waiver of inadmissibility under §1229b(a), we must decide whether he has been convicted of an “aggravated felony,” §1229b(a)(3), a category of crimes singled out for the harshest deportation consequences. The Court of Appeals held that a simple drug possession offense, committed after the conviction for a first possession offense became final, is always an aggravated felony. We now reverse and hold that second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction.
 In Illinois, admonishments are required whenever there is a plea of guilt or a finding of guilt even when no jail or conviction is entered against the defendant, because in immigration matters, at least prior to the U.S. Supreme Court’s latest opinion a felony for immigration court purposes may very well not be a felony in state court.

1 comment:

  1. I was ready to post a long comment because I too fall in this category. Unfortunately I lost the page on the final spell check. The point is I came here at 1 year old in my parents arms and now I am in my mid forties successful with a wonderful family and lives live like any average person does. Somewhere in the middle I hung out with the wrong crowd and had some brushes with the law and I have no way to avoid deportation because I would need a 212(c)waiver and cancellation of removal and today there is now way to get them both simultaneously. Hopefully this will change or you may be writing about me someday. The government should give the Judges the discretion to treat each case on a case by case basis. If a person has made a complete turnaround in life and is presently leading a productive life, the government should take that into consideration.