Broken Arrow immigrant's case calls federal laws into question
BY GINNIE GRAHAM World Staff Writer
Sunday, November 20, 2011
11/20/11 at 7:20 AM
Related Story: Plea deals hit disclosure snag with immigrants
Jorge "George" Aguilar was granted mercy from the church he once pleaded guilty to burglarizing.
From the moment he entered the judicial system seven years ago at age 20, he turned to the First Baptist Church of Broken Arrow to mend his life and spirit.
What Aguilar didn't understand was how differently the federal immigration service views guilty pleas. And the dire consequences.
"He is the epitome of the American story," said senior pastor Nick Garland. "He came to this country with virtually nothing, was raised with virtually nothing, made some bad decisions but got his life on track. He would be an inspiration to people, if he could tell them his story."
'You have to forgive'
Aguilar had arrived in the U.S. legally from El Salvador at age 10 with his mother.
Between November and December 2003, he and two friends were arrested for burglaries at three Broken Arrow Baptist churches - First Baptist, Aspen Park and Indian Springs - taking mostly electronics.
The three were caught within a month. In 2004, Aguilar pleaded guilty to two felony second-degree burglary charges and received a deferred sentence. That meant if he stayed out of trouble for five years, the charge would be expunged.
It sparked a change, beginning with attending services at First Baptist.
Aguilar was quiet in his approach to the church, letting his actions speak for him.
He became a regular at services, attended Bible studies and helped with odd jobs. He became a volunteer helping immigrants learn English and translate documents. He obtained his GED and worked steadily at a flooring business.
During the last major winter storm, he dug neighbors out of the snow. He's known for picking up strangers in the rain and handing over his lunch to a homeless person.
"I saw Jesus Christ change this young man," Garland said. "This was a life-changing commitment, and it was a beautiful process for him. I wish everyone could have a spiritual experience like he did. The world would be very different."
When Garland presented Aguilar to the church as a saved member, the congregation swarmed him in congratulation.
"The church absolutely fell in love with him," Garland said.
"We all have things we wish we could start over and erase. To be forgiven, you have to forgive. Truly, we have been forgiven by the grace of God. For George to come to us and say, 'I want my life to have value and meaning,' that is remarkable."
Aguilar met a girl, fell in love and was studying to become a pastor or youth minister.
"George is like a son to me," Garland said. "He is not a church member I know at arm's length."
Aguilar kept his end of the plea agreement with the state by paying off fines and restitution, doing his community service and staying on the straight and narrow.
But U.S. Immigration and Customs Enforcement doesn't recognize deferred sentences and expungements.
That guilty plea meant Aguilar can have his legal residency stripped, followed by deportation and banishment from the U.S.
Aguilar's two co-defendants also received deferred sentences. One, Richard Taylor Hollingshead, was cited for marijuana possession in January 2005, which led to finding of guilt and a three-year suspended sentence with supervision.
Aguilar's ICE case began in 2009 when he received a notice to appear in immigration court for possible deportation.
The prosecutor exercised discretion and terminated the case without prejudice in March 2010.
Aguilar returned to Tulsa, believing his immigration woes were over, said David Sobel, his immigration attorney.
But a new prosecutor reversed that decision a month later. On Valentine's Day, a immigration court judge ordered Aguilar's removal from the country, Sobel said.
He was immediately placed into custody and held at the Tulsa Jail.
Sobel's motion to change his plea in Tulsa District Court was denied, which is being appealed.
"He had no idea this could happen or he would have never made that plea bargain," Sobel said. "Unfortunately, he was never advised by his attorney of the possible immigration consequences. I have no doubt he and his attorney would have handled this differently."
In a court affidavit, his original criminal defense attorney, Mark Harper, states that he did not advise Aguilar of possible immigration consequences at the time of the plea agreement.
"I was not aware that as part of the prevailing professional norms I needed to investigate and inform my client of any possible immigration consequences," the affidavit states.
A Supreme Court decision last year - Padilla v. Kentucky - would have helped Aguilar. The ruling requires criminal defense attorneys to tell their immigrant clients of the deportation risks involved in making a guilty plea.
Left unanswered is whether the Padilla decision is to be applied retroactively, referring to noncitizens facing deportation in plea bargains made before the high court's ruling. This is Aguilar's situation.
"I respect and understand the law and regulations," Sobel said. "However, I wish that the law were different and not penalize those that have paid their punishment to society."
The Tulsa Jail was Aguilar's home for about nine months as his attorney searched for a solution.
Always hanging over his head was the possibility of being deported at any time. Automatic stays from removal while appeals are pending are not available to noncitizens.
In the jail pod, Aguilar led a Bible study and helped immigrants with translations. He saw his girlfriend twice a week and the other visitation day was used to see friends from church and family members, who are legal residents.
"He sees a purpose in him being there," said Kara Culp, his girlfriend. "He hopes somehow, someday his case will change some policies for the rest of the immigrants here."
Aguilar is on prayer lists and receives postcards of encouragement from people in his church. He talks to Garland two to three times a week.
Culp said he is a "realistic optimist."
"He's very thoughtful, very generous and there's nothing fake about him," Culp said. "We know it's a very difficult case. By nature, we are optimistic people and have faith in God and hope it works out in some way."
For his friends, they simply want ICE to take into consideration Aguilar's life after his plea.
"What is frustrating about this is that it's faceless," Garland said. "It's not like they are looking for an exception. I feel like George is just a piece of paper on someone's desk. There is nowhere to go and look at a judge and say, 'This is a nice, young man with a promising future.'
Garland said he has received a crash course on how different administrative immigration courts are from the U.S. judicial system.
"I'm not anti-immigration law, but in the American court of law there is a side of mercy with people," Garland said. "We live in a time where our security as a nation is a priority and concern. I don't know what the answer is.
"But I know we can't treat people like they have no rights and values if they are here legally. We owe them the respect to say 'Who are you?' "
'Not his home'
The Tulsa World had permission from Aguilar and his attorney for an interview. No response was received from ICE after two requests were made in October to arrange for the interview.
At 3 a.m. Monday, ICE officers put Aguilar on a bus for Texas and immediate deportation. No one but ICE knew the transfer would happen then.
Sobel was denied an emergency stay Wednesday by the 10th Circuit Court of Appeals to keep him in the U.S. until all legal remedies are exhausted. Aguilar could be removed at any moment.
"I am in this fight to hopefully change the ruling in this case and, perhaps, the law in this area," Sobel said. "All we can do is fight and do so within the law. I always try and seek justice.
"Immigration is a tough area of the law that needs reform, compassion and understanding under the system created by our statutes and regulations. Unfortunately, it has become a political tool. I will not give up."
Sobel has promised to keep the appeals alive - one at the Oklahoma Court of Criminal Appeals and one at the U.S. 10th Circuit.
"How do I consult my client? How do I confer with my client? He's gone," Sobel said.
Once Aguilar is dropped off in El Salvador, he goes to a country where he has no family or ties.
"America has been his home for all these years," Garland said. "He was a boy when he left there. It is not his home."
Padilla v. Kentucky
Supreme Court decision in March 2010: Requires criminal defense attorneys to tell immigrant clients about the deportation risks of a guilty plea. Attorneys must warn non-citizen clients about deportation, they cannot remain silent on the issue. In cases where the law is certain, counsel must tell clients deportation will be the result. In situations where the law is unclear, then attorneys must advise immigrants deportation may result.
Background: José Padilla, a legal immigrant of the U.S. for 40 years and Vietnam War veteran, was arrested in 2001 in Kentucky for transporting 1,000 pounds of marijuana. The Honduras native pleaded guilty to a felony charge of trafficking and received a 5-year sentence. His defense attorney told him he "did not have to worry" about the conviction affecting his immigration status, according to court filings. The advice was wrong because nearly all drug convictions result in deportation. In 2004, Padilla filed for post-conviction relief, arguing he received ineffective counsel. He won his case in the Kentucky Appellate Court but the Kentucky Supreme Court reversed the decision.
Supreme Court vote: In a 7-2 decision, the court expanded on its previous decisions on Sixth Amendment rights. Justice John Paul Stevens wrote for the majority, equating deportation to punishments of banishment and exile: "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel." While agreeing with the majority, Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. tempered their opinions stating defense attorneys should not give any false advice and suggest a consultation with an immigration attorney. Dissenting were justices Antonin Scalia and Clarence Thomas.
Pending: Whether the ruling can be applied to cases in which plea bargains were struck before the decision was handed down.
Original Print Headline: Immigrant's case calls federal laws into question
Ginnie Graham 918-581-8376