Articles Posted in Immigration Law

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Petitioner Abdulla Gutale was an immigrant who pleaded guilty to the crime of sex abuse in the third degree. He alleged in a petition for post-conviction relief that his trial counsel had failed to inform him of the immigration consequences of his guilty plea to a class A misdemeanor and, through that omission, led petitioner to believe that there would be no immigration consequences. Based on that alleged failure, petitioner asserted that his trial counsel was constitutionally inadequate and ineffective under the state and federal constitutions. His petition was filed outside the two-year limitations period, but petitioner alleged that his petition fell within an escape clause because he could not reasonably have known of his grounds for post-conviction relief within the limitations period because neither trial counsel nor the sentencing court gave him any indication that his plea could carry immigration consequences, even when petitioner stated, on the record, that he was pleading guilty in part because he wished to travel and become a United States citizen. Petitioner alleged that he learned of counsel’s inadequacy only when he was placed in deportation proceedings, after the statute of limitations had run. The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed, based on the principle that “persons are assumed to know laws that are publicly available and relevant to them,” including relevant immigration law. The Oregon Supreme Court reversed the decisions of the post-conviction court and the Court of Appeals: "Our conclusion that the subject of the reasonable- ness inquiry in ORS 138.510(3) is an unrepresented petitioner, rather than counsel, is significant. Although counsel may be responsible for knowing that there may be immigration consequences to a criminal conviction, we do not presume that to be the case for an individual petitioner, unless there is a factual basis for concluding that the petitioner knew that there may be immigration consequences to his or her conviction." View "Gutale v. Oregon" on Justia Law

Posted in: Immigration Law

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The Oregon Supreme Court allowed review of two cases this case, and Gutale v. Oregon, 395 P3d 942 (2017), requiring it to interpret the meaning and scope of the "escape clause" found in ORS 138.510(3). In both cases, petitioners alleged that their trial counsels were constitutionally ineffective and inadequate under the state and federal constitutions, based on the failure of those attorneys to provide petitioners with information regarding the immigration consequences of their guilty pleas. And petitioners in both cases alleged that their claims fell within the escape clause because they learned of their counsel’s inadequacy only when they were put in deportation proceedings after the statute of limitations had run. Both petitioners argued that they should not have been presumed to know the law any sooner than that. In this case (but not in Gutale), petitioner Ricardo Perez-Rodriquez was told at the time of his plea that there might be immigration consequences to his conviction, even though he was not told that there certainly would be immigration consequences. Furthermore, in this case (but not in Gutale), petitioner alleged that his mental illness and intellectual disability prevented him from knowing that he had a claim for post-conviction relief within the two-year limitations period. The state moved to dismiss, arguing that the laws underlying petitioner’s claim were reasonably available to him. The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed without opinion. Finding no error in this case, the Supreme Court affirmed the Court of Appeals and the post-conviction court. View "Perez-Rodriguez v. Oregon" on Justia Law

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Petitioner was a citizen of Mexico and, until 2006, was a permanent legal resident of the United States. In 2003, the state charged him with possession and distribution of a controlled substance after police officers found him in possession of five pounds of marijuana. The presumptive sentence on the distribution charge was 19 to 20 months in prison. Petitioner explained to his defense counsel that his primary goal was to avoid serving time in prison so that he could continue his job and education. Given the likelihood of conviction and petitioner’s stated goal of avoiding prison time, his defense counsel negotiated a plea deal with the prosecutor, which the trial court tentatively approved. Pursuant to that deal, petitioner agreed to plead guilty to distribution of a controlled substance, and the state agreed to dismiss the possession charge and recommend probation. In discussing the case with petitioner, defense counsel told him, as she told all her clients who were not United States citizens, that “the Federal Government can do whatever [it] wants to do and so [you] need to understand that [you] could be deported” as a result of pleading guilty. She later characterized her advice “as something more than ‘may’ be deported, but something less than ‘will’ be deported” as a result of a guilty plea. After petitioner’s conviction became final, Immigration and Customs Enforcement (ICE) did not seek to remove petitioner from the U.S. Rather, petitioner continued to live and work in this country until 2005, when he went on a personal trip to Mexico. When petitioner attempted to return to the U.S., federal immigration officials detained him at the border and then admitted him in January 2006 for a “deferred inspection” so that they could determine the effect of his state conviction. Slightly less than two years after his state conviction became final, petitioner filed a timely petition for post-conviction relief, alleging his defense counsel for the 2003 conviction gave him ineffective assistance of counsel, and that his plea was not knowing because the trial court did not inform him of the consequences that faces him if he signed the plea. Petitioner was ultimately denied post-conviction relief. While the case made its way through the Oregon courts, the federal Supreme Court decided "Padilla v. Kentucky," (555 US 1169 (2009)). In light of "Padilla," petitioner brought a second petition for post-conviction relief, which was again denied. The Supreme Court affirmed denial of post-conviction relief, finding that ORS 138.550(3) barred the grounds for relief alleged in petitioner’s second post-conviction petition. View "Verduzco v. Oregon" on Justia Law