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In late August, U.S. Immigration Judge William Strasser in Newark, N.J., heard the asylum application of a Rwandan woman who claimed to have been gang-raped during the civil chaos in her homeland. She had been attacked, she said, because she married a police officer who belonged to a different tribe. The case was complicated, however, because she had confessed to law enforcement officers at the airport that she had swallowed several dozen condoms filled with drugs before getting on the plane. Men had forced her at gunpoint to be their mule, she said. The admission had resulted in a drug conviction, and the conviction had triggered deportation proceedings to send her back to Rwanda. During a break in testimony, Strasser became visibly frustrated with the legal advice the woman had received before the conviction, which severely narrows the circumstances under which an asylum claim can succeed. It’s a common scenario, he said: criminal defense lawyers landing their clients in far worse circumstances than any threatened by the U.S. criminal justice system. “The probability is she should have had an immigration lawyer before she pled guilty,” Strasser said. “I have these people coming in here all the time.” For aliens, even those legally in the United States, conviction-triggered deportation proceedings are far more serious than a criminal record or a spell in prison. A theft offense or crime of violence where the person is sentenced to one year or more is considered an aggravated felony for immigration purposes. Such a conviction automatically makes a client deportable. “Generally speaking, there is no relief available,” says Robert Frank of Newark, N.J.’s Frank & York, a former deputy attorney general in the Division of Criminal Justice who now runs an immigration practice. “A person convicted of possession of stolen property is in exactly the same position as a person who is convicted of murder.” “I have seen cases where people have been imprisoned with pending charges and the defense attorney has gotten [a deal for] time served. By entering the plea the man walks out,” Frank says, and the criminal lawyer feels satisfied. “But that plea becomes the basis for deportation.” The federal Immigration and Nationality Act, 8 U.S.C. 1101 et seq., which has long provided for removal of aliens convicted of serious crimes, was amended in the 1990s to increase the panoply of deportable offenses and to make judicial review harder to obtain. In addition, a 1996 amendment prohibited discretionary relief from deportation for aliens convicted of aggravated felonies such as murder, rape, sexual abuse of a minor and illicit trafficking in controlled substances or in firearms or destructive devices. Though many criminals are beyond the help even of a defense lawyer with knowledge of immigration law, some cases fall near the threshold of seriousness that can make the difference. Frank offers this example: “Drug distribution is an aggravated felony. The prosecution may offer a plea to possession with intent to distribute, and I’ll give you probation. The alien might say, I’ll plead to simple possession but I’ll spend a year in jail — I’m going to be punished more but I’ll take a lesser charge — that’s something that I might suggest to somebody.” NO TRAINING FOR PUBLIC DEFENDERS Frank, like other immigration lawyers interviewed, says that the criminal defense bar does not get enough training in immigration law or does not want to know about it. “I’ve talked to different people in the state public defender’s office and those that I’ve talked to have felt they were not getting adequate training in the immigration consequences,” he says. Gerald Boswell, a retired staff attorney of the Public Defender’s Office in Ocean County, N.J., who still handles a death penalty caseload, goes further. “I would join with the immigration bar in saying there should be a compulsory ICLE seminar [for public defenders] on this. It’s probably not that technical. There’s never been a seminar on immigration and criminal law statewide [in the Office of the Public Defender].” Boswell adds: “Even though I’ve been doing criminal law for 31 years, I am not sophisticated enough to know all of the consequences [in immigration]. So sometimes you’re not certain if your client takes a plea to a lesser charge [what will happen]. I’m not up to date enough.” Joseph Krakora, an assistant deputy public defender in Newark, says immigration seminars are scheduled for lawyers in his office. “The public defender’s office tries to ensure that its lawyers try to understand the possible ramifications of guilty pleas,” he says. “But the question of whether or not a defendant will be deported by virtue of a guilty plea is only one factor in any decision by a client.” Private criminal defense lawyers likewise say that the immigration effects of a conviction are not their foremost concern. “My first responsibility as a certified criminal trial attorney is to do the best I can on your criminal charge, and any ramifications as far as immigration goes, that’s not my primary concern,” says Mark Anderl of Anderl & Oakley in Perth Amboy and Princeton, N.J. Anderl adds that he always advises his immigrant clients to consult an immigration attorney. But, he says, “If someone is caught dealing drugs what happens as far as immigration is concerned — that’s not really my main concern.” STATE COURT UNRECEPTIVE A criminal defense attorney’s failure to factor in the immigration consequences of a plea bargain was found to be no ground for relief in State v. Myrie, A-6045-00T4, an unpublished New Jersey Appellate Division decision handed down on Sept. 3. Claude Myrie, a Jamaican by birth, appealed the denial of his petition for post-conviction relief on the grounds that he had ineffective counsel. His criminal defense attorney, he claimed, had not advised him that pleading guilty to aggravated manslaughter would subject him to deportation once his sentence was served. Myrie had not lived in Jamaica since he was 10 years old. Myrie’s appeals lawyer, solo practitioner Nina Rossi of Sergeantsville, N.J., showed that his original counsel had not bothered to ask Myrie whether he was an immigrant or a citizen, and immigration law did not enter his mind. “He [the lawyer] did not recall any instruction or training regarding asking clients whether they were citizens,” her brief states. But Myrie, on advice of counsel, had signed a plea deal that said, “Do you understand that if you are not a United States citizen or national you may be deported by virtue of a plea of guilty?” Myrie wrote “N/A.” Judges Philip Carchman and Anthony Parrillo affirmed the trial court and denied Myrie relief on the basis that the glitch did not affect the outcome of his case. Still, Rossi points out that the question Myrie answered, commonly used on plea deal forms, contains a bureaucratic tautology worthy of Joseph Heller’s Catch-22. It is impossible to answer the question in any way other than “yes,” as the question asks not whether the defendant knows that he might be deported, but whether the defendant understands the statement. A defendant who does not understand the statement — a client with limited English skills, like many immigrants, for instance — should not be able to answer the question at all. “Even the trial court commented that the question makes no sense,” Rossi says. Although prosecutors have no interest in immigration consequences, the assistant prosecutor who handled the Myrie appeal for Cumberland County, N.J., says that at least if nothing else, the question serves as a red flag. ” If the attorney goes over the question with the defendant then even if they may answer incorrectly the defendant should have at least the understanding of what the plea entails,” says Keith Bursack. And in immigration court it is never to a client’s advantage to claim that he or she got good advice before the criminal conviction. That would only make their asylum claim less sympathetic, adds Krakora. Robert Gluck, a former Middlesex County prosecutor and now a partner practicing criminal defense at Mandelbaum, Salsberg, Gold, Lazris, Discenza & Steinberg in New Brunswick, N.J., believes the storm between immigration lawyers and their criminal defense colleagues is more teacup than hurricane-sized. “There’s very little that a criminal defense attorney can do within the framework of the scope of his duties. Common sense tells them they should call an immigration lawyer.” Lastly, there is also a potential financial motive behind the immigration bar’s concern for the rights of criminal defendants: Frank says he’s willing to give free advice to public defenders over the telephone, but a more detailed consultation would require a modest fee.

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