One strike and you’re out: Facing the criminal justice system

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Somali immigrants came to the US as refugees and asylees over the past 10 years. Children that arrived here in 1990s know Minnesota as their home. But if they get convicted of a crime – even a minor theft, they could lose their immigration status and get deportation ordered for Somalia. Whether they get orders for deportation or not depends on the legal help they get from public defenders and immigration law clinics. Some immigrants lose their way navigating the maze of immigration law and criminal law.

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Somali immigrants came to the US as refugees and asylees over the past 10 years. Children that arrived here in 1990s know Minnesota as their home. But if they get convicted of a crime – even a minor theft, they could lose their immigration status and get deportation ordered for Somalia. Whether they get orders for deportation or not depends on the legal help they get from public defenders and immigration law clinics. Some immigrants lose their way navigating the maze of immigration law and criminal law.

The Brian Coyle Community Center in the Cedar Riverside neighborhood of Minneapolis houses periodic free clinics where Somali immigrants can get legal advice. The majority are legal immigrants with green cards. Every Tuesday afternoon clinic organizer Abdirizak Biji signs people up on a crumpled white sheet of paper. Some folks need help with their immigration papers, others come because they are victims of human trafficking. Biji also gets young people who have pled guilty to crimes only to realize later what the consequences would be.

“There are a lot of young adults that are encouraged to plead guilty for lesser sentence or probation like that,” Biji said. “They are not the only ones I believe. A lot of people take that option, knowing no other options. Better sentence or other options.”

Most of the time when you are charged with a minor crime, you never go to trial. Instead you plead guilty to a lesser charge that was negotiated by your attorney. That usually works out for citizen defendants, but immigrants need special legal help. Like anybody accused of a crime, immigrants get a public defender assigned to their case. But public defenders don’t always know enough about immigration law to tell their clients what might happen. Bihi said Somali immigrants don’t realize they need advice from a specialized immigration lawyer.

“We never had access or representation to attorney’s back home,” he said. “Maybe elderly people know. Those how know it, know attorney is attorney. no specifications.”

Non-citizen immigrants face vastly different consequences than citizens if they plead guilty to a crime. A citizen might plead guilty to a DUI and spend a night in jail, and have one year of probation. His second DUI might get his license suspended. An immigrant could be deported for his second DUI. That’s where immigration attorneys can make the difference.

The problem, said John Keller with the Immigrant Law Center in St. Paul, is that public defenders rarely call immigration attorneys on immigrants’ behalf.

If you are lucky, an immigration attorney can help you plead guilty to a crime that skirts around complex immigration laws. Keller said sometimes judge, prosecutors, and defense attorneys accidentally mislead immigrants to believe that immigration authorities will not get involved if they plead guilty to a crime.

“Lots of times we will talk to people who are certain that there can be and will be no immigration consequence to what they pled guilty to one year … two years ago because the judge told them so,” Keller said. “They are gonna believe, they have every reason to believe know those professionals working in the system.”

Immigrants used to face a much more forgiving legal landscape. Until 1990 a criminal defense attorney could make a motion for the judge to take deportation off the table as part of the plea deal. And before the 1996 Immigration Reform and Responsibility Act, non-citizens had to commit a serious crime with a five-year sentence like manslaughter before immigration authorities would automatically deport them. Neither is the case any longer.

“A lot of people – maybe it’s language issues, maybe it’s cultural issues, you question sometimes whether they really understood what was going on in the criminal courts at all,” said retired immigration judge Joseph Dierkes. Until a few months ago, he oversaw deportation hearings in Bloomington. He said he saw heart-breaking situations, where immigrants who had admitted to minor crimes were given deportation orders.

“Here’s one that would come up quick a bit: a theft offense including receipt of stolen property or burglary offense for which the term of imprisonment is at least one year,” Dierkes said. ” So think of the cases of someone who, say, stole the stereo out of a parked car, and got one year and one day sentence–got put on probation, never served a day. That person is convicted of an aggravated felony and they have just burned a lot of their bridges from relief from removal.”

What Judge Dierkes means when he said immigrants have burned bridges from relief from removal is that as a judge–even if he believed the person deserves to get a second chance–his hands are tied. This is why groups like Human Rights Watch say US immigration law violates international human rights standards. They say immigrants should be able to raise a meaningful defense against deportation.

In September Mohamed pled guilty to a 3rd degree burglary meaning – he was caught stealing but not breaking in. It’s not clear if immigration has contacted Mohamed, which is why we are not using his full name. Mohamed, a 21-year-old Somali immigrant who grew up in the Cedar Riverside Towers, admits he made a mistake but now says he’s trying to get his life together and stay away from the wrong crowd.

“We were at the wrong place at the wrong time,” Mohamed said. “We was trying to hang out with a girl but it didn’t work out so we seen–I seen–a smashed door. I got in there, trying to look for something exciting in there. I found a bunch of receipts, I thought it was money. I took it and put it in my right pocket. It was really dark and it was stacks, and I was like ‘oh my God, this is money’, so I just took it, put it in my pocket and took off.”

Remember Judge Dierkes used the phrase “aggravated felony”? Mohamed pled guilty to burglary, and so he could be deported. If he goes in front of an immigration judge, the judge can do very little to give Mohamed a second chance.

Mohamed signed a plea agreement that said he may have trouble with immigration. He had a public defender in Ramsey County. He said his defender didn’t tell him to seek out an immigration attorney. He said his uncle and the public defender both told him that he would be fine if he pled guilty because this was his first offense.

When asked the Hennepin County Public Defenders office if public defenders routinely advise their clients to seek out expert advice from an immigration attorney.

“The answer is yes,” said Arthur Martinez, a private attorney who contracts with the Henepin County Public Defender’s Office. “The Hennepin County public defenders, that I have dealt with since 1992, even if in court, anywhere, they won’t budge without helping their clients. They are justice-based lawyers. Public defenders have put their career and their profession to help those that cannot help themselves or afford to do so. They work very hard to educate themselves and advise their clients. Now, a lot of times clients given advice and they do not heed it, they do not listen to it.”

Martinez said public defenders really cannot do immigration law because they are only paid by the state to do criminal work. But they can and do tell immigrants to seek out private lawyers, or nonprofits like John Keller’s immigrant law center.

One solution, Keller said, is that laws should deal with the whole picture before deciding to deport someone.

“We need some system, some way of giving the discretion back to immigration judges that they used to have to weigh the pros and cons of somebody’s life,” Keller said. “The length of time you’ve been here, the contributions you’ve made–and on the other hand the severity of what you have done. If you have done a minor crime, something that any of our kids could’ve done, maybe you need second chance or a system that allows a second chance.”

Reforming the system could come in many forms, attorneys say. Electing a president whose father was an immigrant could help. But with the public defenders’ office suffering budget cuts each year in Minnesota, and a failing economy dominating the headlines it’s hard to see when immigrants who have committed crimes will get a hearing by Congress.

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