People v. Valdez, 2016 IL 119860 (September). Episode 272 (Duration 41:18).
The Illinois Supreme Court has reset the obligation on criminal lawyers to inform their clients about immigration consequences of convictions.
Two experienced immigration attorneys walk us through the decision.
Attorney David Richmond and Attorney Omar Salguero are primarily immigration law attorneys. This made them the perfect guests to help the criminal defense bar slog through these issues.
David Richmond runs the Latino Immigration & Legal Center in Aurora, Illinois. He concentrates his practice on deportation, removal and other immigration related issues. David can be reached by phone or email. He is always happy to help other attorneys with immigration questions.
- [email protected]
- (630) 897-5992
Omar A. Salguero-Duarte
Omar Salguero also focuses his law practice on immigration related cases. He has legal offices in DeKalb, Rockford and Aurora, Illinois. He too is always eager to answer questions from civilians and the defense bar.
- [email protected]
- (815) 446-0770
People v. Valdez
The Illinois Supreme Court has described certain criminal convictions that carry “succinct, clear, and explicit” immigration consequences. For these types of cases defense attorneys have an affirmative obligation to inform their non-citizen clients of dire immigration consequences. Dave and Omar help pinpoint these cases.
Additionally, they provide other tips and pointers for criminal lawyers defending non-citizens.
Important Links & Resources
- People v. Valdez, 2016 IL 119860 (September)
- Padilla v. Kentucky, 559 U.S. 356 (2010)
- 1-Page Immigration Checklist
- Immigrant Defense Project
- American Immigration Lawyers Association (AILA) – Crimmigration 101
- crImmigration Blog by Professor Cesar C. Garcia-Hernandez
- Defending Immigrants Partnership
- Immigrant Legal Resource Center
- Other Important Sentencing Ramifications
In This Episode
3:59 – We begin with a refresher on Padilla v. Kentucky, 559 U.S. 356 (2010). Dave likes to think of Valdez as an evolution of Padilla.
5:20 – This was the advice from the Padilla attorney that SCOTUS said was entirely ineffective.
5:30 – Here is the number one difference between Padilla (where counsel was found ineffective) and Valdez (where counsel was not found ineffective). Note: Valdez still did something wrong, but he got away with one because the second prong of the Strickland standard was not met.
6:17 – A quick and easy way to discover which criminal convictions carry “succinct, clear, and explicit” immigration consequences. These convictions mandate deportation and/or removal. (Hint: Make sure to download the checklist at top or bottom of this page.)
6:41 – You’ll be shocked to hear what Dave says about the definition of CIMTs (crimes involving moral turpitude). Nonetheless, there are two critical components that persuade judges they may be looking at a CIMT.
7:36 – This is the final word on whether or not Illinois criminal defense attorneys also have to become experts in immigration law.
8:19 – How the Valdez attorney kind of dropped the ball on this immigration consequences issue. Good thing the Strickland standard has two prongs. Also, we learn that the “generic” immigration admonishment looks like this.
9:10 – Why crimes with “succinct, clear, and explicit” immigration consequences require a more definite admonishment from defense counsel. Defense counsel has to step-up in these situations and be more direct about disastrous immigration consequences attached to these types of crimes. (The Good News: the most damning of these charges have been listed and identified as the “aggravated felonies”.)
10:28 – Where to find the aggravated felonies in the federal code. Please Note: These sections in the Immigration and Nationality Act and the United States Code are horribly written. Download the 1-Page checklist if you have not done so already.
11:19 – Do not ignore the 1 year imprisonment requirement attached to some of these aggravated felonies. If the defendant is not sentenced to more than a year of prison for these charges then it’s not an “aggravated felony”.
11:44 – Did you know not all killings are considered aggravated felonies? Murder, yes. Manslaughter and reckless homicide, no.
11:56 – Don’t even mess with drug cases. Even just a “pinch” of cocaine is a big problem for a non-citizen. However, there is a one time “weed” exception.
13:14- What about drug paraphernalia?
14:39 – What should we tell clients when they are charged with an aggravated felony.
15:09 – This is absolutely the very first thing you have to do when you are defending a non-citizen. The second thing is to get an immigration lawyer involved.
16:34 – WARNING: Don’t make this common mistake when representing non-citizens. LPR (lawful permanent residents) are still in the immigration process. Even clients with legit papers have to worry about removability & inadmissibility and how a charge can effect these.
20:12 – Common concerns and issues with domestic violence cases. Why (a)(2) is better than (a)(1).
23:13 – Common problems with differred prosecutions, special probations, and second change programs. Why the Kane County Second Chance Program sucks for non-citizens. Why the DuPage and Cook County programs are way better…Is your home county program more like Kane or Cook?
26:23 – Common concerns and issues with DUI charges.
28:52 – The problem with credit for time served & disorderly conduct.
Before You Go…
The hard work has already been done for you. To get your hands on the 1-Page Immigration Checklist just click the orange button below.