Tulsan awaits U.S. Supreme Court decision on immigration
BY GINNIE GRAHAM World Staff Writer
Sunday, September 09, 2012
9/09/12 at 7:05 AM
Related Story: Q&A: Jorge Aguilar talks about his deportation
The U.S. Supreme Court in October will hear arguments in a case that has featured a Tulsa immigrant in the legal briefs.
Two years ago, the court ruled that the Sixth Amendment requires criminal defense attorneys to inform non-citizen clients of the possible immigration consequences when accepting a plea agreement.
The court was silent on whether it could be applied in criminal cases adjudicated before the decision. Lower courts have been split on issue of retroactivity.
The U.S. 10th Circuit Court is among those siding against retroactivity, meaning deportation proceedings may continue for immigrants in that district, which includes Oklahoma, who received bad or incomplete legal advice before the Supreme Court rendered its decision.
Among the legal briefs in support of retroactivity is the story of Jorge "George" Aguilar, a Tulsa immigrant featured in a Tulsa World story in November.
"This was referenced as an extreme case that sets an example of why this decision of retroactivity needs to happen," said immigration attorney David Sobel, who began representing Aguilar during his deportation appeals.
"A door would definitely be opened to Jorge if retroactivity was allowed, but I'm hesitant and cautious to say he can come back. It is a start, but it's not automatic. There are a lot of other legal questions that could impact his case.
"Retroactivity would not just be a moral victory, it would be a legal one, too. But it is getting into untested waters."
Aguilar lived as a legal resident after arriving from El Salvador as a 10-year-old with his mother. His extended family eventually joined them in Tulsa, where he was raised.
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 deferred sentence.
That meant if he stayed out of trouble for five years and paid off the court-ordered fines and restitution, the charge would be expunged. He met all the conditions and his criminal record was cleared.
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 became a member, earned a GED, found full-time employment and became a volunteer helping new immigrants. He also fell in love and began studies to become a youth minister, with a special interest in helping troubled kids.
Pastor Nick Garland says Aguilar is "like a son" to him and said the church members "absolutely fell in love with him."
Despite having a clean state record, the U.S. Immigration and Customs Enforcement doesn't recognize deferred sentences and expungements.
Aguilar's guilty plea meant he could have his legal residency stripped, followed by deportation and banishment from the U.S.
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.
ICE sent Aguilar a notice in 2009 for him to appear in immigration court for possible deportation. A prosecutor in an administrative court based in Dallas exercised discretion and terminated the case without prejudice in March 2010.
A new prosecutor reversed that decision a month later.
On Valentine's Day last year, an immigration judge ordered that he be removed from the U.S. He was held in custody until his deportation Dec. 9. Garland and church members have written letters to federal officials and lawmakers on Aguilar's behalf, citing the need for forgiveness, second chances and fairness in punishment. Aguilar's motions to vacate the guilty plea agreement have all been turned down.
Immigration attorneys are uncertain how many cases would be affected by a Supreme Court decision in favor of retroactivity.
In Tulsa District Court, less than 10 cases had been filed citing Padilla as a reason to vacate plea agreements or guilty pleas. The state district courts and supreme court have not provided reversals based on this decision.
"There may have been more cases that could fall under Padilla, but they opted not to do anything about it," Sobel said. "But if the Supreme Court says it can be retroactive, there are still a lot of nuances to immigration. It's a path, but it's not a guarantee."
U.S. Supreme Court case
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.
Pending: The high court agreed to hear arguments to clear up the issue of whether the Padilla decision could 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.
Briefs: In the 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."
Original Print Headline: Supreme Court case may help Tulsan
Ginnie Graham 918-581-8376
Jorge "George" Aguilar: A legal resident of the U.S., Aguilar pleaded guilty in a burglary case in 2004. He received a deferred sentence and the charge was eventually expunged, giving him a clean record. However, U.S. Immigration and Customs Enforcement does not recognize deferred sentences and he was deported last year.