FindLaw KnowledgeBasePublished: 2010-05-10
Immigration law is constantly evolving, so it is important to keep apprised of recent changes to immigration statutes and case law. Two current cases – one recently decided and one just granted review by the U.S. Supreme Court – stem from problems arising after immigrants made problematic assumptions about their status. As both Padilla v. Kentucky and Flores-Villar v. U.S.demonstrate, it is essential for immigrants to seek advice from attorneys experienced in immigration issues.
Padilla v. Kentucky
Jose Padilla had lived in the U.S. as an immigrant with permanent resident status for over 40 years, even serving in the military during the Vietnam War. When Padilla was charged with transporting marijuana in Kentucky, however, he put himself at risk for deportation because he was not yet a U.S. citizen. Assuming that his many years living in the U.S. would offset his immigrant status, Padilla’s lawyer incorrectly directed him to plead guilty. He entered a guilty plea to an offense that rendered him removable with no relief available.
During a post-conviction hearing, which is where a criminal defendant asks the court to overturn a conviction or change or lower a sentence, Padilla claimed that his Sixth Amendment right to effective assistance of counsel was violated because of his attorney’s poor advice. The Kentucky Court of Appeals agreed with Padilla, but the Kentucky Supreme Court rejected Padilla’s request to set aside his guilty plea, stating that the Sixth Amendment “does not protect defendants from erroneous deportation advice because deportation is merely a ‘collateral’ consequence of a conviction.”
The U.S. Supreme Court decided in favor of Padilla. The court held that because of the seriousness of deportation as a result of pleading guilty to a crime, attorneys must advise their clients when a criminal plea bears a risk of deportation. Since Padilla’s lawyer failed to inform him that he would most likely face deportation by entering a guilty plea, his counsel was constitutionally ineffective, and therefore infringed on Padilla’s Sixth Amendment rights. Padilla’s conviction was overturned.
Having decided the Padilla case, another immigrant’s fate is now in the Supreme Court's hands.
Flores-Villar v. U.S.
Ruben Flores-Villar was born in Tijuana, Mexico to an un-wed Mexican mother, and was raised by his American father and grandmother from infancy in San Diego, California. After a criminal conviction, Mr. Flores-Villar was removed from the United States several times. When he was arrested and charged with reentering the U.S. as a deported alien in 2006, he claimed that he was a U.S. citizen through his father. The district court, after rejecting Flores-Villar’s request to present evidence of his citizenship, found him guilty of violating federal immigration laws. The district court’s reasoning behind its decision, and what also kept him from receiving a Certificate of Citizenship previously, was that his father could not confer citizenship to him because he was only 16 years old at the time of his birth.
Under applicable law at the time of Flores-Villar's birth, Flores-Villar’s father did not meet the law’s requirement that the U.S. citizen father have lived in the U.S. for “a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.” Since only two years had passed after turning 14 when Flores-Villar was born, his father could not physically satisfy the law’s five-year residency term. Flores-Villar appealed the district court’s decision and asserted that this condition violated the equal protection principles of the Fifth Amendment’s due process clause because only a one year U.S. residency rule was imposed on American mothers before having their children outside the country.
The U.S. Court of Appeals for the Ninth Circuit also disagreed with Flores-Villar and affirmed the district court’s ruling against him. The court found that the applicable law at the time of Flores-Villar’s birth, even though it has since been updated, had a rational basis, which was to avoid children being born stateless, or without citizenship. Therefore, there was no violation of equal protection with regard to gender or age. In addition, the court stood behind the district court’s decision to exclude Flores-Villar from showing evidence of his citizenship, as it considered his challenge of citizenship more of a misunderstanding on his part versus a defense that he should have had the right to provide at trial.
The Supreme Court agreed to determine the constitutional issues in the Flores-Villar case. The main issue is whether the law can require different residency requirements for unwed U.S. citizen mothers and fathers in order to transmit U.S. citizenship to children born outside the U.S. Historically, the court has permitted sex-based categories only when they support and are directly related to key government initiatives. While the Supreme Court has decided similar cases, the issues in Flores-Villar are unique and could impact the citizenship of children born abroad.
Impact of Cases
In general, people come to the U.S. for various reasons, such as finding better employment opportunities, fleeing persecution or violence in their home country, or simply to enjoy life as a citizen of the U.S. However, immigration laws can be complex and confusing, not to mention devastating when they separate families and put people into difficult situations. The cases of Padillaand Flores-Villar show that when it comes to being an immigrant in the U.S., deportation is a real and imminent fear that could result from any criminal or legal missteps.
The Padilla decision requires attorneys to advise of the immigration consequences of a guilty plea or conviction to an immigrant defendant. This will be helpful for immigrants charged with a crime, but the main lesson here is to consult with or hire an attorney who knows, and can advise on, immigration-related consequences like deportation. In Flores-Villar, although the case is still pending argument before the Supreme Court, one lesson for immigrants is to understand and work with the immigration laws before any deportation or arrests occur. Before an immigrant files for citizenship, he or she should consult an immigration attorney. There are many residency term requirements and minute details, which can be confusing for a non-attorney.
Contact Immigration Help
Immigrants cannot afford to proceed with immigration-related issues without professional legal assistance. You could possibly jeopardize your ability to gain a recognized legal status, or citizenship, in the U.S and ultimately face the harsh consequence of deportation. If you have questions about your immigration or work status, contact an experienced immigration and naturalization attorney immediately. You can also confidentially discuss further options for citizenship, employment, asylum or another immigration-related issue with an immigration lawyer.