Monthly Archives: February 2013

Supreme Court Decision in Chaidez Bad for Immigrants

prisoner_Congress, the Supreme Court, and the American public have always been unsympathetic to immigrants who commit crimes in the United States. That’s not surprising nor disturbing in and of itself.

However, the Supreme Court’s recent decision in Chaidez v. United States is an uncomfortable reminder that this harshness extends to immigrants who may not have actually committed crimes, or whose crimes were so minor that even U.S. laws would not ordinarily deem them deportable.

Here’s the background on this situation: Because of wrong advice from criminal defense lawyers who didn’t fully understand the immigration laws (which, in these lawyers’ defense, are insanely tough to understand), many immigrants have pled guilty to, or otherwise failed to fully defend themselves against conviction for a crime — not realizing that the conviction’s presence on their record would make them deportable.

For instance, a criminal lawyer might reasonably tell an immigrant defendant, “Look, we got a great offer from the prosecutor — you plead guilty to a misdemeanor, and you’ll avoid jail time and a trial.” What the criminal lawyer may not know is that even some misdemeanors are considered “aggravated felonies” or “crimes of moral turpitude” under U.S. immigration law — either of which can make even a green card holder deportable from the United States. (See “Crimes That Will Make an Immigrant Deportable” for details.) Yet, relying on the lawyer’s advice, the immigrant might agree to plead guilty, rather than pushing for a trial that might perhaps result on a “not guilty” verdict.

The Supreme Court made some progress toward resolving this problem in a case called Padilla v. Kentucky. There, the Court held that criminal defense attorneys must inform noncitizen clients of the risks of deportation arising from guilty pleas — and if they didn’t, those convictions could later be challenged. That raised hopes that not only immigrants currently fighting deportation or a criminal conviction, but those whose criminal convictions had already become final could go back and have the case overturned.

Those hopes were dashed by the Chaidez case. The Padilla rule, according to the Court, does not apply retroactively. An immigrant with a final conviction for a crime — whether it’s final because all appeals are over or because the immigrant did not file an appeal within the time period allotted — must live with the consequences of that conviction. For more on the immigration consequences of criminal acts, see Nolo’s articles on “Crimes and U.S. Immigration.”

Mandatory E-Verify: Would It Be So Bad?

IDsWith various bills in Congress aimed at making E-Verify — the system by which U.S. businesses can double check the validity of employees’ work-authorizing documentation — mandatory for all employers, a controversy has begun about what this will mean in terms of bureaucracy, costs, and civil rights.

In a February 7, 2013 Wall Street Journal article, for instance, Laura Murphy of the ACLU’s Washington Legislative Office and Fred L. Smith, chairman of the Competitive Enterprise Institute, argue that the program will result in unfair job losses and burdens on employers.

But as often happens in the U.S. media, the controversy is quickly becoming muddled with mistakes and hysteria. Before you form your own opinion, consider these key legal facts:

  •  E-Verify is a new method for enforcing an old law. In and of itself, there’s nothing either sinister nor exciting and different about employers being asked to check the documents of every employee. They’ve long been required to do that, in order to make sure that new hires are either U.S. citizens, permanent residents, nonimmigrants with a visa allowing work, or have a work permit in connection with some other immigration status. That process is often harder than it sounds, given the many types of potential documents, from different years and sources, that an employer must examine. E-Verify gives employers a new way to check whether the person is on record with the U.S. government as being who they say they are.
  • The E-Verify database isn’t new. The system is already voluntary for employers in some states, and mandatory in other U.S. states. Making it mandatory nationwide will not change the fact that, as squeamish as this might make us feel, the U.S. government is amassing information on every working person in this country.
  • Employers may NOT fire employees whose status in E-Verify is still being contested. As described by attorney Nicole Kersey in the article “What Employers Should Do After E-Verify Issues a Tentative Nonconfirmation for an Employee,” the first thing that happens when an employee’s data doesn’t match up with that in the E-Verify system is that the employer will get a nonconfirmation notice, and the employee will have an opportunity to provide further information or contest the nonconfirmation. Contrary to what was stated in the WSJ article, an employee who contests is protected from termination until E-Verify issues a “Final Nonconfirmation.”
  • Some employers voluntarily choose E-Verify. Although it’s not a slam dunk, some employers find that they like the certainty of being able to check the E-Verify system, and the ability it gives them to develop a track record of compliance with U.S. immigration laws. See “Should Employers Sign Up for E-Verify?” for more about the pros and cons.

E-Verify isn’t perfect, of course. While the information in the database is getting better year by year, mistakes can happen. There are reasons for employers to avoid this system and for employees to worry about it. But let’s make this legislative decision calmly, without misrepresenting the law or the situation that already exists.