Deportation and Drugs: The Shabu Epidemic

The use and abuse of crystal methamphetamine, colloquially known as “shabu” is high both in the Philippines and in Filipino communities in the United States. From high ranking politicians to the local laborer, most persons either personally know or know of someone who has been affected by this devastating drug.

Many Filipino youth, and adults for that matter, find themselves thrust into the criminal justice system as a result of a drug problem. For those who are not citizens of the United States, the criminal courts are merely the first step in what will prove to be a long and cumbersome process. After the legal permanent resident is through with the underlying criminal proceeding, and regardless of whether or not one’s jail or prison sentence has been completed, the INS will become involved. Consequently, one will find oneself in deportation proceedings before the Immigration Court, known formally as the Executive Office for Immigration Review.

A very common situation is when one who is accused of simple possession of methamphetamine is advised by his unknowing public defender or private criminal defense attorney to plead guilty to the offense so that he may take advantage of drug diversion. The District Attorney warrants and the defense attorney concurs that after 18 months of attending drug classes and remaining “clean” his record will be cleared and it will be as though the offense never happened. Right? Wrong!

For example, two years after the individual’s record is “cleared” he decides to apply for Naturalization. When he attends his naturalization interview, he is handcuffed and taken into custody by a deportation officer. Now, the INS is trying to forcibly return this individual back to the Philippines for a drug conviction.

In Matter of Roldan-Santoyo, the Board of Immigration Appeals held that a conviction, even if “vacated” pursuant to a drug rehabilitative statute was still a conviction for immigration purposes and subjected the legal permanent resident to deportation. Thus, even if one successfully completes drug diversion, there is still a guilty plea on the record for immigration purposes. Virtually, all drug offenses, outside of the simple possession of under 30 grams of marijuana, render a legal permanent resident deportable. This is especially true since the sweeping changes brought about by the Illegal Immigration Reform and Immigrant Responsibility Act did away with almost all forms of discretionary relief.

However, a very recent decision by the United States Court of Appeals for the Ninth Circuit has restored hope to those legal permanent residents of the United States who have been convicted of certain drug offenses. In the Matter of Magana-Pizano, the Court state that discretionary relief,formerly known as 212(c ) relief, is once again available to certain criminal (drug) offenders, depending upon the nature and date of the conviction. Moreover, the court in Magana-Pizano affirmed that legal permanent residents are able to file Writs of Habeas Corpus in the Federal District Court if they allege that their custody is in violation of the Constitution or laws or treaties of the United States.

The Write of Habeas Corpus is a traditional remedy whereby one can challenge the constitutionality of a conviction. Even if one is a legal permanent resident of the United States, they are still afforded the right to effective assistance of counsel. This right is conferred by the 6th Amendment to the Constitution.

In today’s day and age, ineffective assistance of counsel claims, often arise from a criminal defense attorney’s failure to adequately research, analyze and advise his client of the immigration consequences of his plea. Although the Supreme Court has yet to specifically state that a criminal defense attorney has such a duty, two cases are before the court which might result in such a decision, namely failure to adequately research, analyze and advise his client of the immigration consequences of his plea. Along those lines, courts in California and many other states are required to advise a non-citizen defendant of possible immigration consequences of his plea. Failure to advise may result in the conviction being exonerated. Without a conviction, the INS has no basis to deport.

In addition to the Writ of Habeas Corpis, other forms of post-conviction relief include, but they are by no means limited to the Writ of Error Coram Nobis, the Statutory Motion to Set Aside a Guilty Plea and the Non-Statutory Motion to Set Aside a Guilty Plea. These forms of post conviction relief apply regardless of when the conviction occurred and may be utilized not only to prevent deportation but in other situations as well. For example, if one is otherwise eligible for Naturalization but is afraid to proceed because of a prior criminal conviction, it may be worth examining the record of the proceeding to determine whether or not a valid basis exists to set aside the plea.

In short, the epidemic of shabu as destroyed the lives of those who use it and the families of those who use. More often than not, it is when one is in deportation proceedings that they realize they were not provided the effective assistance of counsel at the underlying criminal phase of the trial. There is home however. Given recent developments before the court, as well as the possibilities of post conviction relief, it is possible and often probably that deportation can be prevented outside of the immigration court by attacking the conviction itself.