Public defenders in Tulsa County are giving immigrants an extra warning that their residency status may be affected by a guilty or no contest plea in settling their cases.
The move comes from a 2010 U.S. Supreme Court decision requiring criminal defense attorneys explain to noncitizens of possible immigration consequences in plea bargains.
That led to a February high-court decision against allowing retroactivity, meaning the earlier decision cannot be applied for immigration relief to those who pleaded before 2010.
Filings in the retroactivity case include the story of Jorge "George" Aguilar, who legally came to the country as a child but was later deported after pleading guilty in a deferred sentence agreement.
The Tulsa County Public Defender's Office has adopted a form to ensure noncitizens understand plea agreements may have consequences ranging up to deportation.
Tulsa County Chief Public Defender Jack Zanerhaft said attorneys in his office have been in compliance by advising clients to seek an immigration attorney for more specific questions about residency status.
The new form gives assurance clients have been informed and understand potential immigration impacts.
"I wanted to have a standard form in my office," Zanerhaft said. "Attorneys were handling it individually with file notations and forms. This was all fine and good and without incident.
"This in-house form makes for uniformity. It's a good reminder to have in our files to make sure this is done."
The form states that immigration is a separate proceeding governed by the federal government and that a guilty or no contest plea "makes it very likely (automatic for many crimes)" a person will be deported.
It also states that no one - including the defense attorney or district court judge - "can predict to a certainty" the effect of the plea on an immigration status.
The form, which is also in Spanish, ends with a sentence stating the defendant wants to go ahead with the plea agreement even with the warning.
"We are criminal defense attorneys," Zanerhaft said. "We make no representation that we are immigration lawyers. We are clear to recommend they seek advice from an immigration attorney if they have questions beyond this."
Immigration attorney David Sobel said this is the right move for defense attorneys.
"It's not the court's responsibility, it's the criminal defense attorney's job," Sobel said.
Sobel suggests defense attorneys inquire about a client's residency status, even when a person speaks perfect English. Then, check on immigration laws or with an immigration attorney and put it all in writing.
"For a public defender to do this is the right thing," Sobel said. "If a court is trying to do it, it is a little too late at that point."
He has represented several clients who sought to repeal their guilty or no contest pleas because they were not told of possible immigration consequences.
Some of the crimes were more than a decade old, and no client was granted relief.
One of his clients is Aguilar, who has been profiled previously in the Tulsa World.
Aguilar arrived as a 10-year-old from El Salvador with his mother with legal documents to join their extended family in Tulsa, where he was raised and graduated high school.
In December 2003, he and two friends were arrested for burglarizing three Baptist churches, taking mostly electronics. Aguilar was 20 at the time.
In 2004, Aguilar pleaded guilty to two felony second-degree burglary charges and received a five-year deferred sentence.
During this time, Aguilar changed his life with the help of parishioners at the First Baptist Church of Broken Arrow, which he once burglarized. He met the conditions of the agreement, and his guilty plea was expunged.
But having a clean state criminal record does not always help since the U.S. Immigration and Customs Enforcement doesn't recognize deferred sentences and expungements.
In court filings, his original criminal defense attorney said he did not advise Aguilar of possible deportation. After several appeals and once having his case terminated without prejudice, Aguilar was deported on Feb. 14, 2011.
The American Immigration Lawyers Association filed a brief with the U.S. Supreme Court favoring retroactivity citing Aguilar's case.
Sobel said Aguilar has accepted the Supreme Court decision about retroactivity and is doing mission work in El Salvador.
U.S. Supreme Court cases involving immigration
2010: Padilla v. Kentucky - In a 7-2 decision, the court expanded its previous decisions on Sixth Amendment rights by requiring criminal defense attorneys to tell immigrant clients about the deportation risks of a guilty plea.
February 2013: The high court decided in a 7-2 decision that the Padilla decision could not be applied retroactively. The case centers around legal Mexican resident Roselva Chaidez, who pleaded guilty to two counts of mail fraud connected with an auto insurance scam in 2003. In this case, including a filing of support from the American Immigration Lawyers Association, a reference is made to Tulsa immigrant Jorge "George" Aguilar, which the group argues "illustrates the plight of clients whose lawyers failed to provide them effective assistance of counsel regarding deportation consequences."
Ginnie Graham 918-581-8376
Ginnie.graham@tulsaworld.com
Original Print Headline: Tulsa public defenders' form should help noncitizens
