By Robert L. Reeves and Nancy E. Miller
2010 did not end on a joyous note for the immigrant community. The DREAM Act was defeated in Congress. Comprehensive Immigration Reform did not even get to a vote. Priority dates for employment and family-based cases either remained backlogged or retrogressed. Enforcement of existing deportation orders (meaning the forced removal of non-citizens) was at an all-time high. However, there were some positive developments for non-citizens in 2010.
Thanks to the United States Court of Appeals for the Ninth Circuit, the ability to apply for a waiver of certain misrepresentations has been expanded. A person who gave false information in order to obtain a green card may be eligible for a waiver of that misrepresentation if she has a parent, spouse, son or daughter who is a U.S. citizen or lawful permanent resident (known as a qualifying relative) and she can show that she has more favorable than unfavorable aspects to her case.
More often than not, the misrepresentation is discovered by the Department of Homeland Security (DHS) when the immigrant attempts to Naturalize or to petition for her spouse and children. At that point, the non-citizen is placed into removal proceedings (Immigration Court). The stakes are high. If an immigrant is granted the waiver, he or she will keep their green card and may be eligible to Naturalize.
Many times by the time the misrepresentation is discovered the immigrant’s qualifying relative had passed away. DHS had taken the position that the immigrant was not eligible for the waiver if the parent had died and many immigration courts agreed. In an important 2010 case, the 9th Circuit held that the alien remains eligible despite the death of the alien’s qualifying relative and may seek that relief.
Relief was also expanded for non-citizens who have been convicted of crimes. Many convictions that are misdemeanors under criminal law are aggravated felonies under immigration law. While there are waivers for certain criminal convictions, many of those waivers are not available for those with aggravated felony convictions. The list of aggravated felonies is long and continues to grow.
In 2010, the U.S. Supreme Court recognized and addressed the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings. In a case called Padilla v. Kentucky, the Court held that the Sixth Amendment to the U.S. Constitution requires criminal defense counsel to provide affirmative, competent advice to a non-citizen defendant regarding the immigration consequences of a guilty plea and that, absent such advice, a non-citizen may raise a claim of ineffective assistance of counsel. The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining.
The Court recognized that immigration law is very complex and that the criminal defense lawyer may not possess the necessary knowledge and experience to provide the necessary advise about immigration consequences of criminal convictions. In those cases, the non-citizen and the defense lawyer should consult with an experienced and knowledgeable immigration lawyer throughout the plea bargaining stage and certainly before any plea is agreed to. In cases where the immigrant has already entered into a plea agreement without having received the requisite immigration consequence-advice, the plea agreement may be vacated (set aside).
Clearly, avenues for relief still exist for non-citizens. While the disappointments received most of the publicity, it is important to focus on the positive and see that there is hope. Some monumental steps forward were achieved in this past year. Existing law and recent changes may afford non-citizens an avenue for relief that will help to resolve their immigration problem in 2011.