The expectation of deportation

A Guatemalan immigrant convicted of drug and DUI charges after a cocaine-fueled police chase in Arlington will spend more time behind bars because of his immigration status.

Defense attorneys say the case represents one more potential pitfall for attorneys trying to advise defendants who face immigration consequences for their criminal problems.

The commonwealth’s attorney said there was nothing out of the ordinary about the sentence.

Arlington County Circuit Judge Louise M. DiMatteo balked at sentencing guidelines that provided for probation but no additional incarceration for Esquibel Amilcar, convicted of driving under the influence, possession of cocaine and eluding and resisting police.

The convictions assured that Amilcar would be deported.

“Why would I put somebody on probation under those conditions? He can have no benefit from probation,” DiMatteo said, according to a transcript.

With a sentence pursuant to the guidelines, Amilcar might have walked free. He had already been confined for five and a half months, according to his attorney. Instead, DiMatteo sentenced him to 18 months.

“I see a person who has to leave the country who can’t have the benefit of probation for any of the issues that might have caused you to come to this point,” DiMatteo said, according to a transcript of the Sept. 11 hearing.

“So I can’t – I need to sentence you directly on what I think are very serious charges and just use jail time as the only way to address it,” the judge said.

DiMatteo imposed an 18-month sentence for two felony charges of eluding police and cocaine possession, a 12-month sentence for DUI with an elevated BAC, and 12 months on resisting arrest. The sentences were to run concurrently.

Defense attorney Andrew Stewart said his understanding of the judge’s reasoning was that, because Amilcar would be deported and unavailable for probation, the court gave him a straight sentence and diverted above the guidelines.

The sentence was 600 percent above the high end of the prosecutor’s calculation of the guidelines, Stewart said.

“I think it is problematic for courts to sentence people more harshly because of their immigration status,” Stewart said.

“This is a problem for defense counsel because it makes it very difficult to advise a client about whether or not to go to trial or accept a plea when the commonwealth’s attorney is not willing to agree on sentence,” Stewart said.

The possibility of such a sentence “sets a dangerous precedent for all defense attorneys with clients in Arlington Circuit Court that face deportation,” he said.

The judge’s sentence was in no way out of line, said Arlington County Commonwealth’s Attorney Theo Stamos.

Amilcar’s actions – including speeding and bailing out of a moving car – put others at risk, Stamos said.

“He jeopardized the well-being of other unsuspecting motorists on the road that night,” she said. “He’s lucky he only got 18 months.”

“I think being present illegally is an aggravating circumstance,” Stamos added.

Enhancing a sentence based on the expectation of deportation adds to the burden for immigrants and their lawyers, said criminal defense attorney Corinne J. Magee of McLean.

“My feeling is they shouldn’t be treated any differently from someone who wouldn’t otherwise be deported,” she said.

Status consequences

For at least five years, defense lawyers have grappled with the ramifications of immigration law that arise from otherwise minor criminal cases.

The 2010 U.S. Supreme Court decision in Padilla v. Kentucky imposed a duty on defense counsel to advise non-citizen clients about the deportation risks of guilty pleas.

Attorneys from the Capital Area Immigrants’ Rights (CAIR) Coalition are conducting training sessions in Virginia to educate criminal defense lawyers. The Virginia Association of Criminal Defense Lawyers has for years made available a two-page “hot sheet” on immigration consequences of criminal convictions.

Nevertheless, Manassas lawyer Mark R. Voss said many court-appointed attorneys in Prince William County don’t understand the intricacies of what happens to non-U.S.-citizens when they’re convicted.

Even a deferred disposition leading to dismissal can trigger deportation if the process starts with a guilty plea, Voss said. He said a federal appeals court decision makes it clear that defendants can avoid the risk of immigration action if they accept deferred disposition without pleading guilty or having a judge proclaim guilt.

The effort to ensure that non-citizens don’t unwittingly subject themselves to deportation produced a legal ethics opinion from the Virginia State Bar this year imposing additional duties on prosecutors in some cases.

LEO 1876 would require some notification by a prosecutor when he or she is informed that a defendant is subject to deportation.

The legal guidance arose from concerns that some defendants in general district court were unwittingly agreeing to plea bargains that could get them shipped out of the country.

Alexandria civil rights attorney Victor M. Glasberg persuaded the Supreme Court of Virginia to add language to one court form – now available in several languages – that advised of possible immigration consequences. Glasberg also requested the LEO from the bar’s legal ethics committee.

Glasberg said he recently exchanged letters with Chief Justice Donald W. Lemons about concerns that certain low level deportable offenses do not require appointment of counsel, yet could expose non-citizens to deportation.

Glasberg said he understands the court will consider the issue.

“It is clearly something he has confirmed, and reconfirmed, that will be addressed,” Glasberg said of Lemons’ response.

Voss said the public rhetoric about immigration has calmed somewhat in Prince William County, where 22 percent of the population is identified as Hispanic/Latino, according to the U.S. Census.

“The county realizes that the phrase ‘illegal alien’ doesn’t mean they’re criminals,” Voss said.

But the effort to ensure effective representation requires constant attention at his three-attorney office, he said.

“We’re on the phone with immigration attorneys at least three times a week,” Voss said. “It never gets better.”