Tucson, Arizona Sunday, 28 July 2002
http://www.azstarnet.com/star/today/20728PLEAS.html
By Joseph Barrios
ARIZONA DAILY STAR
For people who are not U.S. citizens, pleading guilty to a crime can mean more than just time behind bars.
It means they can get kicked out of the country - although no one in Arizona is required to tell them so.
The state Supreme Court is reviewing a proposal to change that. It would require judges to advise people who are not U.S. citizens that pleading guilty to a crime could lead to their deportation. The proposal also calls for allowing a defendant to withdraw from a plea if he or she was not told. Some states, including California, already require that defendants be advised of the deportation possibility.
The proposed changes are "in the interest of fairness and justice," said Eleanor Eisenberg, executive director of the Arizona Civil Liberties Union, which is joined by the Florence Immigrant and Refugee Rights Project in asking for the changes.
But state prosecutors say federal deportation issues have no role in state court, and they shouldn't have to be responsible for informing defendants about federal law.
Before a person agrees to plead guilty to a crime, judges advise the defendant of the nature of the charge, the appeal process and the sentencing range for the crime.
Eisenberg said the possibility that they'll be deported if convicted is a crucial fact a person should also know before deciding to plead guilty.
"Often men, women or children who have lived in the United States for extended periods of time have established families here. Husbands and wives, children and parents, including United States citizens, may well be separated and families left bereft," Eisenberg said.
In state court, deportation is considered a "collateral consequence," said Deputy Pima County Attorney Elizabeth Hurley. She made the argument recently in a petition filed with the Arizona Court of Appeals over the guilty plea of Gerardo Castro, 28.
Castro, a Mexican citizen with a permanent U.S. resident card, is married to a U.S. citizen and has two children, both born in the United States. He was arrested in July 1999 as the driver in a car crash that injured two people.
Last year, Castro pleaded guilty to two counts of aggravated assault, criminal damage and driving under the influence of alcohol. After his plea, the Immigration and Naturalization Service notified Castro that he could be deported.
Castro's new attorney, Bertram Polis, argued in court that his client should be allowed to withdraw from the plea because he wasn't told of that possibility. Pima County Superior Court Judge Howard Hantman granted the motion, saying there were "language- barrier issues." The decision reversed his conviction, putting a stop to the deportation proceedings.
Hurley argues that Hantman made an error when he allowed Castro to withdraw from the plea agreement.
"We're arguing the state of the law is, there is no requirement that they be advised by their attorney because it has nothing to do with state court proceedings," Hurley said.
Prosecutors are often unaware of the defendant's status in the country and defendants won't necessarily tell their own attorneys, let alone the court or prosecutors. If the defendant does not share that status, "then how is anybody supposed to advise them? It's none of our business. It's not our issue," Hurley said.
Even if prosecutors do know the immigration status of a defendant, there is no obligation to share information with the INS.
But INS investigators routinely check rosters at the Pima County Jail to determine if anyone they're looking for is already in the custody of local law enforcement. Under federal law, border crossers with or without permanent U.S. residency status can be deported if they are convicted of certain crimes, including violent crimes.
Polis said the legal issue is whether the consequence is "collateral."
"I think it's a reasonable thing to do because it has consequences," Polis said.
Before harsh laws were enacted in 1996, Polis said, there were ways out of deportation.
"If it was a first offense, where you could prove it was going to be a family hardship, leaving family without support, then the court would generally give you relief," Polis said.
"Now, certain felonies are almost automatic deportable offenses.
"Because of the change of the immigration laws, it became a direct consequence, no ifs, ands or buts."
* Contact reporter Joseph Barrios at 573-4241 or jbarrios@azstarnet.com.
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