CALEXICO — The San Diego State University-Imperial Valley Campus Borderlands Institute concluded the final portion of this year’s scheduled events calendar with an in-depth presentation by local attorneys regarding the legal nuances surrounding the current immigration and Deferred Act on Childhood Arrivals (DACA) executive action at the campus Library Wednesday evening.
“As we all know, the issue of immigration is, of course, a very hot topic and it’s pretty much at the forefront of our political, economic, and social culture,” said Carlos Herrera, SDSU dean of Student Affairs.
Local 23-year-old “dreamer” Juan Manuel Montes is currently suing the Trump administration over his recent deportation, which has erupted into another social justice issue in Imperial County that resulted in an immigration protest organized at the West Port of Entry in Calexico Saturday morning.Forum moderator, Imperial County Judge Poly Flores, introduced guest speakers Judge Rudy Cardenas, attorneys Jason Gundel, John Carter, and Kelly Smith.
“Oftentimes, clients don’t understand the collateral consequences of their convictions,” said Judge Flores, in regards to the underlying impacts of immigration law. “All they see is what’s before them. They see a charge, but they don’t understand the long term consequences can be more devastating on them and their family.”
Gundel elaborated on the concept of “crimmigration,” which is an intersection of criminal law and immigration.
“The Public Defenders office is really at the tip of the spear when it comes to an area of law called ‘crimmigration’,” Gundel said. “We represent anyone who is accused of a crime in Imperial County; that includes people who are citizens, people who are legal permanent residents, people who are here on visas, as well as people who are undocumented. For the second population (people who are not citizens) oftentimes the immigration consequences are the most important thing. Those clients of ours look at the prospect of removal and deportation far more seriously than they do custody time, fines, and fees.”
In 2015, after the Padilla vs. Kentucky case, the Supreme Court decided that defense attorneys have an affirmative duty to provide competent advice as to immigration matters.
The California Legislature codified the decision to make it part of the penal code in section (1016.2) saying that defense attorneys have the specific obligation to provide competent advice and prosecutors also have a duty of in-plea bargaining to consider pleas as a factor, naked of immigration consequences as an important factor in factioning pleas that will lead to a just and equitable solution.
Public defenders are the people who get assigned to criminal cases when a person cannot afford an attorney, and they will have one appointed by the court.
“One of the most extreme consequences for criminal conviction can be triggering eligibility to be deported,” said Carter. “The immigration consequences for an individual who is being potentially convicted of a crime can be the most important outcome, the most important priority, for that person. Amidst all the other consequences, their greatest priority is to protect their status in the United States,” he added.
Immigration law is federal law, they said, and things that will trigger deportation/ immigration proceedings are all defined by federal law.
The definition in the United States code of what will lead to immigration consequences then has to be applied to state laws, the speakers explained. Federal standards are applied to state crimes in certain areas which are necessary to determine if deportation or immigration proceedings are necessary.
“The Dream Act has been introduced to Congress numerous times, but never passed,” explained Smith. “People call children that were brought here at a very young age and who don’t have any status ‘the dreamers’. President Obama was able to issue an executive action which resulted in DACA. Many people were worried because Trump could have done away with it on the first day, he could have issued another executive order taking away DACA, but as of yet, that hasn’t happened,” Smith said.
As of April 25, 2017, “dreamers” are issued a renewable work permit and temporary protection from deportation. The requirements are as follows: born after June 15, 1981 (under 31 as of June 15, 2012), came to the U.S. before the 16th birthday, lived in the U.S. since June 15, 2012, but had no lawful status, and are currently enrolled in, or previously graduated high school, or earned a GED, or have been an honorably discharged veteran.
DACA Criminal Bars include any felony conviction (regardless of sentence imposed) and any significant misdemeanor conviction – punishable by over five days (regardless of sentence imposed).
Domestic violence, sexual abuse/exploitation, unlawful possession/use of firearm, drug sale (simple possession is not a bar, but goes to discretion), burglary, DUI, and any misdemeanor where the actual sentence imposed is greater than 90 days (suspended sentences are okay in this case, but only if they remain suspended) all exclude one from DACA status.
Three non-significant misdemeanors, occurring not on the same day, or arising from the same act or scheme, with each punishable by up to five days regardless of sentence imposed, and any criminal history goes to discretion and can lead to denial or revocation of the DACA status.