Tuesday, April 27, 2010

Supreme Court Holds Competent Criminal Advice Includes Discussion of Immigration Consequences

On March 31, 2010, the U.S. Supreme Court held that the failure to advise a criminal defendant of the immigration consequences of a plea amounted to ineffective assistance of counsel.

Padilla had been a lawful permanent resident for forty years, and served honorably in the U.S. Armed Forces during the Vietnam War. On the advice of counsel, Padilla plead guilty to transporting a large amount of marijuana. Because of his guilty plea, Padilla faced deportation.

Padilla claimed that his defense counsel not only failed to advise him of the immigration consequences of the guilty plea, but that counsel assured him that since he had been a permanent resident for so long that he did not have to worry about his immigration status. Padilla insisted that if he knew about the immigration consequences of his guilty plea, he would have insisted on going to trial.

The Supreme Court of Kentucky, assuming Padilla’s claims were true, denied post conviction relief. Padilla appealed to the U.S. Supreme Court, which reversed the Kentucky decision.

Pursuant to the Sixth Amendment, before deciding on whether to plead guilty to a charge, a defendant is entitled to the effective assistance of competent counsel. Kentucky had argued that immigration consequences of a plea are merely collateral, and thus criminal defense counsel need not address them. The Supreme Court disagreed, noting the unique nature of deportation. While removal proceedings are a part of civil law, not criminal law, deportation is intimately related to the criminal process.

Based on this reasoning, the Supreme Court reversed the Kentucky Court’s decision, and remanded the case for further proceedings. Five justices joined in the Court’s opinion. Justice Alito concurred in the judgment, and was joined in his opinion by Chief Justice Roberts. Justices Scalia and Thomas dissented.

Arizona Law Ignites Firestorm of Controversy

Arizona passed a law addressing immigration concerns which has touched off a firestorm of controversy. The most controversial provision of the law provides that where any lawful contact is made by a law enforcement official or agency of the state or a county, city, town or other political subdivision, and a reasonable suspicion exists that the person is an alien unlawfully present in the united states, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

Opponents argue that it will be difficult for government officials to define when a reasonable suspicion exists that a person is an unlawful alien. Critics fear that police and other officials will rely on racial profiling to identify potentially undocumented aliens, thereby bringing a large number of lawful residents and U.S. citizens of Latino descent into suspicion.

Critics further note that the law will discourage many Latinos from seeking the vital services they may need from the government, for fear of being placed in immigration proceedings.

Despite pleas from immigrant rights groups across the country, and criticism from President Obama, the Governor of Arizona signed the bill into law on August 23, 2010. In response, the Board of Governors of the American Immigration Lawyers Association moved its fall conference from Arizona in protest.

Saturday, April 10, 2010

H-1B Visas for Fiscal Year 2011 Still Available

On April 8, 2010, USCIS announced that it was still accepting applications for H-1B specialty worker visas for fiscal year 2011. The H-1B visas are for foreigners who work in a position requiring a bachelor's degree or higher. There are 65,000 available each year, plus an addition 20,000 available for foreigners holding a master's degree or higher from a U.S. school.

The fiscal year begins on October 1, 2010. H-1B petitions can be filed as early as 6 months in advance. Thus, April 1, 2010 was the first date on which H-1B petitions could be filed. As of April 8, 2010, 13,500 H-1B petitions had been filed, and 5,600 petitions for individuals with advanced degrees.

In recent years, the trend had been for there to be more petitions filed on April 1 than there were available visas. This results in a lottery to see which applicants receive the visas. Last, year, however, H-1B visas remained available up through December of 2009. Fiscal year 2010 appears to be starting off in the same manner.