Blog Archive

Saturday, February 19, 2011

Deportation for petty larceny?

The Washington Post
February 19, 2011

EDGAR LUIS CABRERA, a lawful, permanent resident of Loudoun County, pleaded guilty to a misdemeanor charge of petty larceny in 2005 and was sentenced to 12 months in jail. He never served time behind bars because the sentence was suspended. He went about his life without other run-ins with the law until last fall, when he was notified that he would be deported. The reason: his guilty plea to the misdemeanor.

The news came as a shock to Mr. Cabrera, who claims that his lawyer never told him about the risk of removal linked to the plea. Had Mr. Cabrera been sentenced to less than one year - or pleaded guilty to a charge that carried a lesser sentence - it's likely he would have avoided deportation.

Last year the U.S. Supreme Court concluded that lawful immigrants who unwittingly entered guilty pleas that marked them for deportation should be given a chance to reopen their cases if their lawyers failed to advise them of the possible deportation consequences. In New York and Massachusetts, where state law is relatively flexible, such challenges have been raised, and some have prevailed.

Not so in Virginia, where Mr. Cabrera lives - and where the rules governing challenges to convictions are among the harshest in the country. The Virginia Supreme Court ruled in December that Mr. Cabrera and others like him could not bring such challenges.

Chief Judge Dean S. Worcester, presiding over Mr. Cabrera's case in Loudoun County, has refused to abide by the Virginia court's decree, arguing that the high court's decision is unnecessarily narrow and wrong. As a matter of justice, Judge Worcester is correct; as Virginia law stands, his position is weaker. He recently ordered new proceedings for Mr. Cabrera, but chances are slim that his decision will be allowed to stand.

There are two other possibilities. Virginia legislators could broaden state law; they would not be inventing a right but giving meaning to one that the U.S. Supreme Court has said exists. Or the U.S. attorney general could step in to review cases in which immigrants have been barred from challenging plea-induced deportations. The attorney general does not have the authority to reopen a state criminal case, but he does have some discretion over final orders of deportation. He should use that discretion to determine whether justice is being served by deporting nonviolent legal residents who have been prohibited from exercising their constitutional rights.