Immigration Law, Policy & Politics : Southern California Immigration Lawyer & Attorney : Carlos Batara Law Firm : Riverside, San Diego, Los Angeles

For over 10 years, judicial discretion has been absent from the review of many minor criminal convictions in the deportation context.

Offenses considered small under state law are often deemed aggravated felonies under immigration law.  Aggravated felonies lead to the near automatic loss of an immigrant's lawful permanent resident status.

Today, the Supreme Court took an extended look at the issue.

In the first case, Padilla v. Kentucky, the Court blocked the deportation of a Vietnam veteran from Kentucky.  He had pled guilty to trafficking marijuana.  His lawyer had told him erroneously he did not have to worry about his immigration status because he had lived legally in the U.S. for 40 years.

In his opinion, Justice Stevens noted, "The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes."  For this reason, lawyers must inform immigrants about the risk of deportation before entering a guilty plea.

In a second case, Carachuri-Rosendo v. Holder, the Court did not reach a decision.  They took under consideration whether a Texas man could be deported for possessing one tablet of Xanax, an  anti-anxiety drug, after he had pled guilty to having less than two ounces of marijuana the year before.  Both convictions were misdemeanors.

Nicole Saharsky, on behalf of the Solicitor General, defended the strict legal standards.  She stressed Congress had taken a hard line on criminal aliens, especially recidivists.  Since a second drug crime is punishable as a felony in some states, she stated, it qualifies as an aggravated felony.

Writing in the Huffington Post, H. Lee Sarokin, who sat on the federal bench for 17 years, asked "When Does Deportation Become Cruel and Unusual Punishment?"

He wrote:

"Many of these persons facing deportation have lived in this country for years, for many -- virtually their entire lives.  They have wives and children and parents here.  They have substantial ties to the community.  Deportation for them is often more severe than any prison term.  We must distinguish between the criminal and the minor offender in the same way that we do for our citizens.  Leaving one's family, friends and home is too great a punishment to impose so cavalierly.  We need some greater sense and sensibility when it comes to deportation."

Having practiced as a deportation defense attorney in San Diego and Riverside during the demise of judicial discretion, I agree with Judge Sarokin. 

A line of rationality must be drawn between serious and minor crimes.  Immigration judges should be allowed to intervene on behalf of deserving immigrants. 

Hopefully, today represents a new watershed for immigration law.  The day fairness made a comeback in deportation proceedings.

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Modern day slavery is on the move in Southern California.

A man shot multiple times a few days ago in Moreno Valley, the Riverside Press Enterprise reports, was likely a victim of human smuggling.  The Riverside County incident points to a recent trend noted by Immigration and Customs Enforcement (ICE) officials.  Human traffickers are shifting operations from Los Angeles to the Riverside and San Bernardino areas.

The problem expands far beyond Los Angeles, Riverside, and San Bernardino.  More help is needed.

What Is Human Trafficking?

Human trafficking is the process by which a person is recruited to be controlled and held captive for the purpose of exploitation.  

It involves the use of coercion, deception, or force, and places men, women, and children in slavery or slavery-like conditions.

How Big Is The Trafficking Problem?

Estimates compiled by the Coalition To Abolish Slavery & Trafficking (CAST) show the staggering magnitude of human trafficking:

•  Approximately 27 million people are enslaved around the world
• It is the fastest growing criminal enterprise in the 21st century - a nine billion dollar industry
• The majority of victims are women and children.  14,500 to 17,500 persons are trafficked into the U.S. each year.  70% of the victims are women, 50% are children.
• The U.S. is one of the top three countries for trafficked victims.  California, Texas, and New York are the leading U.S. destinations.
• About 10,000 women are being held in Los Angeles underground brothels.  This figure does not include those who are involved in domestic work, sweatshops, and other informal industries in Los Angeles.

Uniting To Meet The Challenge

Trafficking cannot be fully understood just in terms of statistics.  Trafficking is about human lives.  Humans living in degrading situations as modern day slaves.

One survivor recently shared her story in a video interview.  She was taken from her hometown at the age of 15, with promises of work in the U.S.   Upon her arrival, she was sold for $200.  She was beaten, raped, and often forced to work 18-20 hours per day until her owner died.

Most trafficking victims lack adequate English skills, financial resources, and identity documents.  Their ability to defend themselves is non-existent.

A few non-profits, like CAST, have emerged to lead the crusade against trafficking.  But the fight is too big for any organization on its own. 

I recently agreed to join the fight.  After participating in a day long course on how to effectively represent trafficking survivors, I decided to help victims on a pro bono basis.

I strongly encourage my fellow bar members in Southern California and other parts of the country to consider helping organizations like CAST.  Trafficking survivors need more allies. 

As an immigration lawyer, fighting trafficking is a worthy endeavor.

Slavery demeans all of us.

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As an immigration attorney in Riverside, it's a question I hear almost every day.

"Do you think," ask clients, "we'll have immigration reform this year?"

It's a tough question.

Immigration reform resembles a ping pong match.

Ping.

According to the Los Angeles Times, the President met yesterday with two senators, Democrat Charles Schumer and Republican Lindsey Graham, whose support are crucial to immigration reform.  Presumably, the purpose was to ask them to hasten a blueprint.

Pong.

Just a month ago, immigration reform seemed dead.  After Scott Brown won the Massachusetts special election, Newsweek's blog, The Gaggle, reported the chances of having an immigration reform bill had become dramatically slimmer.

Obama's State of the Union Speech also contributed to the pessismistic outlook of pro-reform leaders.  Many observers felt his reluctance to address immigration reform was tantamount to abandonment. 

Reverend Samuel Rodriguez, head of the largest U.S. Hispanic Christian organization, labeled Obama's 38-word commentary "a crumb" to satisfy the hunger of immigrant communities.  He added it marked the death knell of immigration reform in 2010.

Ping.

The disillusionment articulated by Rodriguez was a stark contrast to sentiments last fall.

In November, DHS secretary Janet Napolitano stated the Obama Administration would push for immigration reform in 2010. 

Shortly afterwards, Congressman Louis Gutierrez introduced the Comprehensive Immigration Reform for America's Security and Prosperity Act (CIR ASAP) Act of 2009. 

Pro-immigrant leaders expressed optimism about the prospects of immigration reform.

Pong.

Prior to these gestures, despite Obama's bold campaign promises, immigration reform languished for several months after his victory. 

At a populist pit stop in my neck of the woods last spring, the president was taken aback when posed a question about immigration reform.  The question was not surprising for a Southern California audience.  Yet, Obama's response resembled a rookie batter swinging at one of Josh Beckett's curveballs. 

And The Winner Is . . . 

The president understands the volatility of reform.  He has tried to appease both sides of the immigration equation.  However, with midterm elections around the corner, the issue is reaching a boiling point. 

Very soon, the administration will have to fish or cut bait.

The Democratic Solution: Counting Votes

Before joining the bar, I spent several years working in political offices. 

I learned the art of counting votes.  Before diving in too deeply.

Given the uncertain political climate in a midterm election year, my guess is the president will take a middle-of-the-road approach. 

He cannot go too far in promoting pro-immigration legislation or he'll lose the support of many moderates. 

On the other hand, as Politico's Ben Smith points out, Obama must push some of his campaign promises to maintain the enthusiasm of immigrant communities which strongly voted for his party two years ago.

My hunch is that one or two "safer" pieces of the pro-immigrant agenda will be taken up in the spring or early summer. 

But like I tell my clients, don't bet the house on it.

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