Pageviews last month

November 23, 2013


Posted by Attorney Norka M. Schell
Law Offices of Norka M. Schell
Tel. (212))564-1589

Petitioner Raul Ruiz-Ibanez, an alien who was admitted to the United States on July 13, 1982, with IR2 immigration status (Immediate Relative - Unmarried Child Under 21 Years of Age of a United States Citizen). He was under a final order of removal from the United States, because he pleaded  guilty of a felony without knowing of the immigration consequences in his immigration status. He filed  a petition for a writ of habeas corpus pursuant to 28 U.S.C. sec. 224 seeking release from detention in the custody  of United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"), pending the execution of a final immigration order of removal.

'On November 6, 2013, the New York Supreme Court, Appellant Division ruled that due process compels state court judges to warn defendants in criminal proceedings who are not U.S. citizens that pleading guilty to a felony may result in their deportation. The court found that “deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice. Due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.” The court partially overruled the 1995 case of People v. Ford , which held that a court’s failure to advise a defendant of the possibility of deportation never affects the validity of a guilty plea.

When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, many more minor crimes became grounds for automatic deportation. Moreover, Congress largely stripped prosecutors of the discretionary ability to prevent the deportation of noncitizens who pled guilty to such crimes, making deportation “practically inevitable,” regardless of whether people have been here legally for many years, have U.S. citizen family members or children, or make significant contributions to their communities. Many immigrants, both documented and undocumented, who are deported due to criminal convictions have pled guilty, often without advice about the immigration consequences or any legal representation at all."